IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 285 of 2020
CR 59 of 2021

REX
-v-
SIONE POUONO

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN QC
Appearances:	Mr J. Fifita for the Prosecution
	The Defendant in person  	
Date:	24 June 2021 

The charges 
1.	On 14 January 2021, in proceeding CR 285/20, the Defendant pleaded not guilty to possession of:  
(a)	0.08 grams of methamphetamine; and
(b)	0.38 grams of cannabis. 
2.	On 18 May 2021, the Defendant was found guilty on both counts.
3.	That same day, in proceeding CR 59/21, the Defendant pleaded guilty to two counts of grievous bodily harm, contrary to s 106(1), 2(b) and (2)(c), respectively, of the Criminal Offences Act. 
The offending
4.	In CR 285/20, on 16 December 2019, Police received information about drug dealing at Tomasi Pouono’s residence at Lapaha. When they arrived, several officers covertly observed a vehicle turn into the residence. They then saw the Defendant switch off the exterior lights and walk over to some tanetane trees on the fence line of the property beside the house.  The Defendant retrieved something from that location and gave it to the person in the vehicle. The police then raided the property and conducted a search. They found the methamphetamines and cannabis, the subject of the charges, where the Defendant had gone to the tanetane trees and $210 in cash on the Defendant. The Defendant did not co-operate when questioned. 
5.	In CR 59/21, on 7 November 2020, only four days after he was granted bail by this Court in respect of CR 285/20, the Defendant was drinking alcohol with others when he got into an argument and ensuing fight with one of the males. After they calmed down, the victim went to purchase another bottle of alcohol while the Defendant went home, grabbed a chopping knife and returned to the drink up with it. Without warning or any further provocation, the Defendant then struck the victim with the knife on his nose. Then, as the victim grabbed his bleeding nose, the Defendant struck again, this time severing the victim’s right index finger from his hand. The victim was taken to hospital for treatment. The Defendant was arrested and admitted to the offending. 
Previous convictions
6.	The presentence report reveals that in Magistrates Court proceeding CR 326/2016, the Defendant was convicted of a ‘minor offence’ and sentenced to 50 hours community service. 
7.	Further, on 5 October 2019, in proceeding CR 122/2019, the Defendant was convicted in the Magistrates Court of possession of illicit drugs. He was sentenced to 6 months’ imprisonment. That sentence was fully suspended for 1 year. That means that the offending the subject of CR 285/20 was committed during that period of suspension.
Crown’s submissions
8.	The Crown submits the following as aggravating features:
(a)	CR 285/20:
(i)	the offences are serious;
(ii)	they were committed during a suspended sentence;
(iii)	the Defendant has a previous conviction for illicit drugs. 
(b)	CR 59/21:
(i)	the attack was premediated attack;
(ii)	it involved the use of a weapon;
(iii)	the Defendant struck the victim twice;
(iv)	the Defendant was on bail for CR 285/20; and
(v)	such violence must be denounced. 
9.	The Crown submits that in relation to CR 285/20, there are no mitigating factors and in CR 59/21, the only mitigating factor is the Defendant’s early guilty plea. 
10.	The Crown referred to the following comparable sentences:
(a)	In Uaisese (CR 217/2020), the Defendant was found guilty of possession of 0.02 grams of methamphetamine. She was sentenced to 3 months’ imprisonment, fully suspended for 12 months on conditions.  
(b)	In Tapa’atoutai (CR 195/2020), the Defendant was found guilty of possession of 0.08 grams of methamphetamine and 0.43 grams of cannabis. For the methamphetamine, Langi AJ set a starting point of 12 months’ imprisonment which was reduced by 6 months for mitigation. The resulting sentence was fully suspended on conditions. 
(c)	In ‘Amaka (CR 214/2020), the Defendant pleaded guilty to possession of 0.25 grams of methamphetamine. He was sentenced to 9 months’ imprisonment, fully suspended for 2 years on conditions. 
(d)	In ‘Aisake (CR 19/2019), the Defendant pleaded guilty to causing grievous bodily harm when he struck the victim, who was a Senior Police Constable, with a machete resulting in a 13 cm depressed skull fracture which required an emergency craniotomy and elevation of depressed skull fragments. The victim was left with a mild neurological deficit of his left upper limb. Paulsen LCJ set a starting point of 7 ½ years imprisonment which was then reduced by 18 months for mitigation, resulting in a sentence of 6 years’ imprisonment. Due to the Defendant’s previous convictions for armed robbery, involving the use of a firearm, no part of the sentence was suspended. 
(e)	In Mafi (CR 32/2013) [2014] TOSC 13, the Defendant got into an argument with and attacked the victim with a machete causing grievous bodily. Cato J imposed a starting point of 6 ½ years imprisonment, which would have been higher, he said, had there been any serious permanent injury. That was discounted by 2 years for mitigation and a further a further 18 months was deducted on account of the Defendant’s advanced age and acute bad health.
(f)	In Tupou (AC 16/2018, CR 97/2018), the Defendant had been drinking alcohol with the victims. They later got into an argument and the Defendant went home and returned with a machete and attacked the victims causing them multiple lacerations and fractures. The Court of Appeal agreed with the starting point set of 6 ½ years imprisonment and did not disturb the final sentence of 6 years’ imprisonment with the last 2 years suspended on conditions. 
11.	Here, the Crown’s submits the following sentence formulation:
(a)	the Defendant’s sentence of 6 months imprisonment in CR 122/19 be activated. 
(b)	CR 285/2020:
(i)	the head sentence is count 1 (0.08 grams of methamphetamine);
(ii)	a starting point of 12 months’ imprisonment; 
(iii)	no discount for mitigation;
(iv)	1 month imprisonment for count 2, concurrent with count 1; and
(v)	no suspension. 
(c)	CR 59/2021:
(i)	the head sentence is count 1;
(ii)	a starting point of 7 years’ imprisonment;
(iii)	reduced by 18 months for mitigation; and
(iv)	partial suspension
Presentence report
12.	The Defendant is 20 years of age. He is the eldest of 12 children. He was educated to Form 3. The family’s main source of income was from fishing and their plantation. The Defendant was described as well-behaved growing up. Both his parents have convictions for drug-related offences. They exposed the Defendant to drugs at a very young age. The Defendant went on to mix with the wrong crowd and joined in their all-too-common abuse of alcohol and drugs. 
13.	The Defendant continues to deny responsibility for the offending in CR 285/20, has shown no remorse and maintains that he was wrongfully accused. 
14.	In relation to the offending in CR 59/21, the Defendant told the probation officer that he reacted violently because he was ‘fed up’ with the victim ‘bullying’ him and, because he had been drinking, he was not in a ‘right state of mind’ at the time. For that crime, the Defendant has shown remorse. 
15.	The Defendant told the probation officer that he hopes to rehabilitate himself and change his life around. His mother reports that, since quitting alcohol, her son has ‘changed’. 
16.	The probation officer opines that, without ‘extensive intervention’, the Defendant poses a high risk of reoffending. He therefore recommends that any sentence of imprisonment be only partly suspended and subject to conditions including abstention from alcohol and drugs and courses on life skills, alcohol abuse and anger management. 
Magistrates Court CR 122/19
17.	Section 24(3) of the Criminal Offences Act governs suspended sentences. It provides, relevantly:
(c)  In the event of the offender being convicted of an offence punishable by imprisonment committed during the period of suspension he will thereupon be sentenced to serve the term of the suspended sentence in addition to the punishment imposed for such subsequent offence. 
…
(e)  In special circumstances the Court may release an offender from the operation of paragraph (c) and may extend the original period of suspension for a further period not exceeding 1 year. 
18.	As the offending in CR 285/20 was committed during the 12 months in which the 6-month sentence in Magistrates Court proceeding CR 122/19 was ordered to be suspended, s 24(3)(c) is engaged. There being no special circumstances to enliven subsection (5), I order that the suspension of that sentence be rescinded, and the term of imprisonment activated, to take effect with the sentences to be imposed on CR 285/20 and CR 59/21 as further detailed below. 
CR 285/20
19.	The statutory maximum penalty for possession of methamphetamine at the time of offending is a fine of $1 million or 30 years’ imprisonment or both. For possession of less than 28 grams of cannabis, the maximum penalty is a fine of $5,000 or 1-year imprisonment or both.
20.	As stated in R v Ali [2020] TOSC 94: 
“Methamphetamines continue to be a scourge on society, not only here in Tonga, but around the world. Like other class A drugs, methamphetamine is not just a drug of dependence; it is a drug of destruction, causing untold damage to countless individuals, their families and their communities. The courts play an important role in the fight against the manufacture, importation, supply and use of insidious illicit drugs like methamphetamines...”
21.	As such, the Court’s repeated stance on illicit drugs, particularly methamphetamines, and the approach taken to sentencing, has been described thus:
(a)	methamphetamine is a scourge to societies everywhere that has effected a great deal of harm and misery;
(b)	the distribution and use of methamphetamine in Tonga is a significant government and community concern;
(c)	in prescribing a maximum penalty of 30 years’ imprisonment (and now, for 1 gram or more, life imprisonment), the Legislature has expressed a clear intention that significant penalties are to be imposed;
(d)	therefore, those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences.
22.	Therefore, the Court’s responsibility in addressing drug-related offending involving methamphetamine is “to ensure that sentences imposed ... are adequate and effective in denouncing and punishing such crimes, provide a strong deterrent effect, not just for individual offenders but also for the general community and those who may contemplate succumbing to the toxic allure of illegal drugs and also to provide incentive and opportunity for rehabilitation of those who have succumbed.”
23.	The head count in this proceeding is count 1, possession of 0.08 grams of methamphetamines. Recently, in Tu'itavake v Police [2021] TOSC 98 at [23], I had occasion to review other comparable sentences for similar amounts, including:
(a)	Ue’ikaetau Tapa'atoutai [2021] TOSC 8, where for possession of 0.08 grams of methamphetamine, Langi AJ sentenced the Defendant, who changed his plea at trial and whose criminal history was unclear, to 6 months, fully suspended on conditions including 40 hours community service;
(b)	Tama’a Takau (CR 270 of 2020, 25 January 2021, Whitten LCJ), the Defendant, who had previous convictions only for dishonesty but pleaded guilty early, was sentenced for possession of 0.08 grams of methamphetamine to 4 months imprisonment, fully suspended on conditions including 40 hours community service; and
(c)	Songo'imoli [2021] TOSC 75, where Niu J sentenced the Defendant, who had previous convictions for possession and importation of cannabis and for which he was sentenced to imprisonment, upon his conviction for possession of 0.08 g of methamphetamine to 18 months’ imprisonment, fully suspended for three years, on conditions including 40 hours community service,
24.	In Tu'itavake, which also involved possession of 0.08 grams of methamphetamines, a primary starting point of 6 months imprisonment was set.  
25.	Having regard to the seriousness of the offending, the strong evidence at trial that the possession here was for the purpose of supply and the comparable sentences and principles referred to above, I set a primary starting point for count 1 of 6 months imprisonment. 
26.	However, on account of the offending occurring during the period of suspension for CR 122/19, and thereby, the Defendant’s demonstrated flagrant disregard for the law and the opportunity he was afforded by the Magistrates Court, I add another 2 months, making a total starting point of 8 months’ imprisonment. 
27.	The Defendant’s refusal to accept the verdict and acknowledge his responsibility together with his previous conviction for possession of illicit drugs preclude any discount for mitigation. 
28.	On count 2, the Defendant is sentenced to 1 month imprisonment, to be served concurrently with the sentence on count 1.
CR 59/21
29.	The maximum penalty for causing grievous bodily harm is 10 years imprisonment. 
30.	“Anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment. That will apply even to a first-time offender. The likelihood of going to prison becomes a virtual certainty ... when a weapon is used”: Hu’ahulu v Police [1994] Tonga LR 93.
31.	Recently, in R v Fusikata [2021] TOSC 87, where the grievous bodily harm resulted in the victim permanently losing his sight in one eye, the Crown referred to the following comparable sentences:
(a)	Toki (CR 106/09) – the Defendant was found guilty on bodily harm and two counts of common assault. He was sentenced to 2 years’ imprisonment for the bodily harm count.
(b)	Sione Lolohea (CR 85/20) – the Defendant was drunk when he assaulted the victim while the latter was still sleeping by striking him on the face with a piece of timber which blinded the victim. The Defendant pleaded guilty to grievous bodily harm. A starting point of 6 years was set, reduced by 2 years for mitigation, resulting in a final sentence of 4 years’ imprisonment, the final 12 months of which was suspended on conditions.
(c)	Misa [1991] Tonga LR 69 – the Defendant was found guilty of causing grievous bodily harm where he struck the victim’s face with a torch causing injury to the victim’s eye. The Defendant was sentenced to 4 years’ imprisonment but only had to 6 months with the balance of his sentence being suspended for three years.
(d)	Mumuhu Pou’uhila (CR 104/17) – the Defendant threw a brick at the victim’s face, resulting in permanent blindness in the victim’s right eye. The Defendant pleaded guilty to grievous bodily harm. Cato J considered that as the assault had resulted in serious permanent injury, a starting point of five years imprisonment was required to reflect the seriousness of the offending and deter the prisoner and others from acting in that way. He then discounted the starting point by one year for the early guilty plea and by an additional six months to reflect the Defendant’s young age, lack of previous convictions and remorse. Of the remaining sentence of 3 ½ years’ imprisonment, the final 18 months were suspended on conditions.
32.	There, the Crown submitted a starting point of 5 years’ imprisonment.
33.	In that case, as here, where the victim has also suffered a permanent injury in the loss of a finger, I have also had regard to the following further comparable sentences: 
(a)	Soane Patita Toutai’olepo [2020] TOSC 3 – the Defendant who was 18 years of age at the time pleaded guilty to grievous bodily harm when he threw a large rock at the victim which struck him on the left side of his head rendering him unconscious with a compound depressed fracture to the left temporal bone of his skull which required surgery. A starting point of 4 years’ imprisonment was set, reduced by 2 years for mitigation with the final 12 months suspended on conditions.
(b)	Siokatame Tupou [2019] TOCA 8 – the Defendant attacked two men with a machete. He pleaded guilty to, and was sentenced to 5 years’ imprisonment, for grievous bodily harm. The last 2 years of the total sentence was suspended.
(c)	Vaingalu Pulotu (unreported, CR 159 of 2019, 7 February 2020) – the Defendant pleaded guilty to stabbing the victim with a knife during a fight causing grievous bodily harm. A starting point of 5 years was set and reduced by 18 months for mitigation. Of the resulting sentence of 3 ½ years’ imprisonment, the final 6 months were suspended.
(d)	Vea (CR 126/2011) – the Defendant threw a torch at his eight-year-old son’s head causing a skull fracture. He had previous convictions for violence. He was sentenced to 5 years’ imprisonment with the last 12 months suspended.
(e)	Moale Vi (CR 55/2017) – after a prior altercation with the victim, the accused returned the same day and struck the sleeping victim's head with a steel pipe causing a skull fracture. A starting point of 4 ½ years imprisonment was set, which was reduced by 18 months for mitigation. The last 12 months of the resulting sentence of three years imprisonment was suspended.
34.	Having regard to the seriousness of the offending, including the use of a knife and the premeditated and vengeful nature of the attack, the statutory maximum penalty and the panoply of comparable sentences considered above, I set a primary starting point for count 1 of 5 years’ imprisonment.
35.	However, on account of the offending occurring while the Defendant was on bail for CR 285/20, I increase the starting point by 1 year, producing a total starting point of 6 years’ imprisonment. 
36.	For the Defendant’s early guilty plea, I reduce that starting point by 18 months, resulting in a sentence of 4 ½ years’ imprisonment.
37.	On count 2, the cut to the victim’s nose, I sentence the Defendant to 3 years imprisonment, to be served concurrently with the sentence on count 1. 
Cumulation
38.	Each of the sentences or head sentences, as the case may be, for the three proceedings, should be served consecutively: R v Vi [2021] TOSC 91 at [27].
39.	However, having regard to the totality principle, and the Defendant’s young age, I consider it appropriate to order that 2 months of the activated sentence in CR 122/19 and 4 months of the head sentence in CR 285/20 be added to the head sentence in CR 59/21. 
40.	The net result is an effective head sentence of 5 years imprisonment. 
Suspension
41.	I accept the Crown’s submission that no part of the sentence for CR 285/20 should be suspended. However, in the context of the above cumulation of the sentences for the three proceedings and resulting effective head sentence of 5 years imprisonment, the considerations discussed in Mo’unga [1998] Tonga LR 154 at 157, favour some suspension. The Defendant is young. He co-operated with the authorities and pleaded guilty at the earliest opportunity in proceeding CR 59/21. The earlier fight in CR 59/21 arguably provides some diminution in culpability, although that is countervailed by the Defendant going home to get the knife. Further, the Defendant’s breach of his suspended sentence in CR 122/19 tends to suggest that, at present, he may not be amenable to rehabilitation.  Over the past year or so, he has certainly excelled at making a menace of himself and an increasing danger to society. 
42.	However, some cause for optimism may be found in his admission to, and remorse for, his most recent offending and that he has reportedly quit alcohol. I am also mindful of his unfortunate exposure, as a child, to drugs, which has clearly escalated since. He has also not had the support that the conditions of a partially suspended sentence can provide. 
43.	I also place significant weight on the fact that the Defendant is only 20 years of age. As noted in Rex v Vailea [2020] TOSC 27 at [18]:
“... the sentencing of young offenders raises special considerations: see for example the discussion in R v Churchward [2011] NZCA 531 at [77]-[92]. An offender’s youth may impinge on an assessment of their culpability. … prison for any period is known to carry an enhanced risk of trauma for young people. And, as this Court recognised in Mo’unga v R [1998] Tonga LR 154, young offenders have a greater capacity for rehabilitation.”
44.	After considering all those matters, I have come to the view that it is appropriate to order that the final 2 years of the sentence be suspended on conditions as set out below.
45.	In the result, and subject to compliance with those conditions and any remissions he may be granted within prison, the Defendant will be required to serve 3 years in prison. 
Result 
46.	Pursuant to s 24(3)(c) of the Criminal Offences Act, the suspension of the sentence in Magistrates Court CR 122/19 is rescinded and that sentence of 6 months imprisonment is activated.
47.	In proceeding CR 285/20, the Defendant is convicted of possession of illicit drugs and is sentenced:
(a)	on count 1, to 8 months imprisonment; and 
(b)	on count 2, to 1 month imprisonment, to be served concurrently with the sentence for count 1.
48.	In proceeding CR 59/21, the Defendant is convicted of causing grievous bodily harm and is sentenced:
(a)	on count 1, to 4 ½ years’ imprisonment; and 
(b)	on count 2, to 3 years’ imprisonment, to be served concurrently with the sentence for count 1.
49.	Two months of the sentence in CR 122/19 and 4 months of the sentence in CR 285/20 are to be added to the head sentence in CR 59/21, making a total effective sentence of 5 years’ imprisonment.
50.	The final 2 years of that sentence are to be suspended, for a period of 3 years from the date of the Defendant’s release from prison, on condition that during the said period of suspension, the Defendant is to:
(a)	not commit any offence punishable by imprisonment;
(b)	be placed on probation;
(c)	report to the probation office within 48 hours of his release from prison; 
(d)	live where directed by his probation officer; and
(e)	complete courses on drugs and alcohol awareness, life skills and anger management as directed by his probation officer.  
51.	Failure to comply with any of the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison sentence. 
52.	In proceeding CR 285/20, pursuant to:
(a)	s 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs are to be destroyed; and 
(b)	s 33 of the said Act, all cash and other items seized are to be forfeited to the Crown. 
			
NUKU’ALOFA		M. H. Whitten QC	
24 June 2021		LORD CHIEF JUSTICE