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

CR 69 of 2021

REX
-v-
WESLEY FINAU

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN QC
Appearances:	Mrs. ‘E. Lui for the Prosecution 
	Mrs P. Tupou KC for the Defendant 	
Date:	10 June 2021 

The charges
1.	On 4 March 2021, the Defendant pleaded guilty to:
(a)	cultivation of 65.94 grams of cannabis;
(b)	possession of utensils; and 
(c)	possession of 5.62 grams of cannabis seeds.
The offending
2.	On 21 December 2020, Police received information that drugs were being sold from a residence at Fo’ui where the Defendant lived. Police searched the residence and the Defendant’s vehicle. They found a number of cannabis plants, cannabis seeds, a bong and 188 empty packs. The Defendant co-operated when questioned and admitted to the offending. 
Crown’s submissions
3.	The Crown submitted the following as aggravating features of the offending:
(a)	drugs are a ‘huge issue’ in Tonga;
(b)	the amount of cannabis found, suggesting the Defendant is a supplier;
(c)	drugs seized together with smoking utensils;
(d)	the Defendant admitted to the Probation Officer to being a drug user from a very young age;
4.	The Crown submitted a number of mitigating features, including, relevantly, that the Defendant:
(a)	pleaded guilty at the earliest opportunity;  
(b)	co-operated with police;
(c)	is remorseful; and
(d)	is young and likely to rehabilitate.
5.	The Defendant has two previous convictions in the Magistrates Court for reckless driving and driving without a licence. 
6.	The Crown referred to the following comparable sentences:
(a)	Vea [2004] TOCA 7 – the Defendant was convicted of possession and growing Indian hemp comprising 20 branches, a total of 125 seeds and one joint. While on bail, he was found with another 8 plants and dried branches and leaves. He was sentenced to 9 months for the first possession charge, 2 years for the second and 3 years for growing the marijuana. The last two sentences were to be served concurrently but cumulative on the first making a total of 3 years 9 months. The last 1 year and 9 months were suspended for 2 years. 
(b)	Talia’uli [2007] Tonga LR 226 – the Defendant pleaded guilty to possession of 54.27 grams of cannabis. Andrew J adopted a starting point of 3 years’ imprisonment. By reason that the Defendant was married, pleaded guilty at the first available opportunity, had no previous convictions, and cooperated with the police, 1 year was deducted resulting in a sentence of 2 years’ imprisonment and the final 6 months were suspended for 2 years on conditions. 
(c)	Mikaele Le’ota (CR 124/16) – the Defendant pleaded guilty to possession and cultivation of cannabis plants weighing a total of 53.43 grams. He was married with an 8-month-old daughter and had a clean record. Paulsen LCJ set a starting point of 2 years and 9 months’ imprisonment, which was reduced by 9 months for mitigation. The resulting sentence of 2 years’ imprisonment was fully suspended on conditions.
(d)	Heamani Saafi (CR 290/20) – the Defendant pleaded guilty to cultivation of 59.18 grams of cannabis. He co-operated with police and was remorseful. Langi AJ set a starting point of 2 years and 9 months’ imprisonment but which was increased by 6 months due to the Defendant’s extensive criminal history. The total starting point was reduced by 9 months for mitigation, resulting in a sentence of 2 ½ years’ imprisonment. The sentence was fully suspended on conditions. 
(e)	Doomas Livi (CR 56/20) – the Defendant pleaded guilty to possession of 67.12 grams of cannabis, cultivation of 4 plants and possession of ammunition without a licence. He was sentenced to 2 years for possession of cannabis, 1 year for the cultivation charge and 1 month imprisonment for the ammunition, to be served concurrently with the cannabis charge. The head sentence was fully suspended. 
(f)	Fetu’u’aho [2021] TOSC 83 – the Defendant was charged in two proceedings for possession of cannabis, cannabis seeds and utensils. On the head count of possession of 183.33 grams of cannabis, a starting point of 2 years and 9 months was set, which was reduced by 11 months for mitigation, resulting in a sentence of 22 months’ imprisonment. On another count of 37.7 grams of cannabis, he was sentenced to 12 months’ imprisonment. For the utensils, he was also sentenced to 12 months’ imprisonment.   
7.	Here, the Crown submits the following sentence formulation:
(a)	the head sentence is count 1;
(b)	a starting point of 2 years’ imprisonment;
(c)	reduced by 8 months for mitigation;
(d)	12 months’ imprisonment for count 2, to be served concurrently;
(e)	4 months’ imprisonment for count 3; and 
(f)	full suspension on conditions. 
Defence submissions
8.	In her submissions, Mrs Tupou concurred with the Crown’s submissions and added, in summary, that the Defendant:
(a)	is 28 years of age;
(b)	comes from a good family;
(c)	is not married but has a one year old son;
(d)	has taken full responsibility for his actions;
(e)	committed the committed as a result of his association with the wrong group of people, after his father’s passing in 2017 and not living with his family; 
(f)	co-operated with police;
(g)	pleaded guilty at the earliest opportunity;
(h)	was remanded in custody for 4 days after his arrest;
(i)	has no previous drug related convictions; 
(j)	is remorseful for what he did; 
(k)	wishes to turn his life around. 
Presentence report
9.	In addition to the matters submitted by Mrs Tupou, the presentence report conveyed the following information. The Defendant is the third of five children. He grew up in a good, religious family. His father was a Minister of the Free Wesleyan Church of Tonga. He completed high school at Tupou College and in 2017, he graduated from Tupou Tertiary Institute with a Diploma in Information Technology. That same year, his father died. The Defendant then moved out of the family home to his father’s village in Fo’ui.   There, he started mingling with the wrong crowd and peer pressure contributed to his involvement with drugs and alcohol. As a result, for the last 4 years or more, he has been using cannabis and methamphetamines. 
10.	Between 2018 and early 2020, the Defendant worked intermittently in Australia. His earnings from that assisted with one of his sister’s medical studies in Fiji.  Since the Covid-19 border closures, the Defendant has been unemployed. He relies on his mother for financial support. He and his family members have plans to open a photo shop and hair salon. 
11.	Attached to the report were two letters of support which I have considered. 
12.	The probation officer recommends full suspension on conditions. 
Starting points
13.	For the reasons that follow, I agree, generally, with the submissions advanced on behalf of both the Crown and the Defendant. 
14.	The relevant statutory maximum penalties are:
(a)	cultivation of over 28 grams of cannabis - a fine of $50,000 or 7 years’ imprisonment or both;
(b)	possession of utensils - a fine of $10,000 or 3 years’ imprisonment or both; and
(c)	possession of less than 28 grams of cannabis – a fine of $5,000 or 1 year imprisonment or both.  
15.	In Vea [2004] TOCA 7, the Court of Appeal referred, with apparent approval, to the guidelines for cannabis offences provided by the New Zealand Court of Appeal in R v Terewi [1999] 3 NZLR 62 as follows:
“[14] The decision … provides guidance, although this Court immediately acknowledges that consideration must be given to the different social conditions in Tonga and to the different maximum penalties that apply here compared with those which apply in New Zealand. Having said that we note the following matters referred to by Court of Appeal in the above case.
[15] The Court in Terewi identified three categories of offending. The first related to the growing of marijuana or as it is called here Indian hemp in small quantities for personal use. The Court said that in such cases a non custodial sentence was generally appropriate. A similar approach is taken in relation to charges of possession for personal use. In a case of growing for small scale commercial purposes, the Court has said that a starting point of between two and four years may be appropriate and for large scale growing for commercial purposes, a sentence in excess of four years is appropriate. A similar scale of sentencing applies to possession of cannabis. The New Zealand Court of Appeal has also made it clear on numerous occasions that personal circumstances are generally irrelevant when sentencing for drug offending.”
16.	The Court of Appeal then referred to its decision in Tuita v R [1999] Tonga LR 15 as being of more direct relevance in Tonga, and in which the Court opined: 
“In our view, a conviction for growing any significant amount of marijuana should carry a sentence within the range of three to five years imprisonment. That sentence would not normally be suspended in whole or in part unless there are good reasons relating to rehabilitation, along the lines of the judgment of this Court in R v Misinale (CA 13/99, 23 July 1999). Further we consider that similar sentences should be imposed on persons convicted of possession for supply of amounts of marijuana that indicate a commercial scale operation.’
…
17.	In relation to the distinction between sentences for personal use and for supply, the Court of Appeal agreed with the remarks of Ward CJ in June 2001, where His Honour made it clear that:
“[18] … possession of any drug including cannabis in a small quantity for personal use will in future result in a sentence of imprisonment although that sentence will be suspended for a first offender. He also said that in every case where there is evidence of supply to others the sentence will inevitably be a longer term of imprisonment and suspension of the sentence in any such case would not be appropriate. He said that any one who sells drugs can expect to go prison for a very substantial length of time.”
18.	Almost 20 years on, those views, particularly in relation to supplying, remain reflected in decisions such as R v Latuselu [2021] TOSC 19, in which this Court opined:
“13. …. Supply is to be regarded as a more serious and insidious crime than mere possession for personal use. Apart from the minority of cases involving self-production for personal use, illicit drug use leading to almost universal and inevitable addiction is not possible without the supply of those drugs. It is also suppliers who facilitate and spread the destruction caused by drug use and abuse, usually for their own financial gain, in return for the eventual, and often irredeemable, suffering of drug users and often their innocent family members.
14. In acknowledgment of the superadded evils committed by those who supply drugs, in R v Kalonihea [2020] TOSC 68, I stated:
‘19. ... for first offenders on possession charges, the court should endeavor to afford Defendants a chance of rehabilitation. The same may not be said for those who engage in trafficking or supply of any amounts, even if they are first offenders.’”
19.	As noted above, in the recent decision of R v Fetu'u'aho [2021] TOSC 83, the Defendant pleaded guilty to several counts of possession of cannabis. The head count involved 183.33 grams. In its submissions on that sentence, the Crown referred to the following comparable sentences:
(a)	Likamani Fa’aoso [2020] TOSC 90 – the Defendant pleaded guilty to possession of 126 packs of cannabis, one plastic bag of cannabis leaves and seeds and another large bag of cannabis leaves, totalling 165.37 grams. A starting point of 2 years was set. That was reduced by 8 months for mitigation, resulting in a sentence of 16 months’ imprisonment. The final 8 months was suspended for 12 months on conditions.
In that case, the Crown relied upon the following comparable sentences:
(i)	Talia’ui Fatongiatau (CR 138/19, Cato J, 10 July 2020) - the Defendant was convicted after trial of possession of 0.34 grams of methamphetamine and 159.13 grams of cannabis. For the latter, he was sentenced to 6 months imprisonment to be served concurrently with a sentence of 2 ½ years for the methamphetamine.
(ii)	Sione ‘Atupuha Latu (CR 136/17, Cato J, 29 May 2018) - the Defendant pleaded guilty to possession of 195.37 grams of cannabis and 109.8g of cannabis seeds. He had no previous convictions. He was sentenced to 2 years 3 months on each count, concurrent, with the final 9 months suspended on conditions.
(iii)	Satio Matakaiongo (CR 135/17, Cato J, 29 May 2018) - the Defendant pleaded guilty to possession of 89.2 grams of cannabis. He was sentenced to 2 years 3 months with the final 9 months suspended on conditions.
(b)	Sione ‘Atupuha Latu (CR 136/17) and Satio Matakaiongo (CR 135/17) – were co-accused to the principal offender in R v Huni [2018] TOSC 33. Matakaiongo’s motor vehicle was the subject of a search outside the residence of Latu which revealed one plastic bag containing 89.2 grams of cannabis and a number of empty small bags contained in a larger bag. At Latu’s home, police found 133 small packets containing a total of 195.37 grams of cannabis and 109.8 grams of cannabis seeds. Cato J considered that both offenders fell into the second category of the classifications in Vea v R, ibid, for cannabis offending justifying a sentence of between 2 and 4 years imprisonment for smaller scale commercial cultivation and possession of cannabis for commercial supply. Matakaiongo had previous convictions for drugs. For each, a starting point of three years and three months imprisonment was set. After discounts for mitigation, they were sentenced to two years and three months imprisonment with the final 9 months suspended on conditions.
(c)	Ngaue [2018] TOSC 38 - the Defendant was charged with possession of 14.15 grams of methamphetamine and 43.89 grams of cannabis. On the cannabis charge, he was sentenced 18 months’ imprisonment, to be served concurrently with the sentence on the methamphetamine charge of 3 years and 6 months’ imprisonment, with the final 9 months suspended.
20.	The cultivation and possession here sits somewhere between the first and second categories described in Terewi. However, the recent amendments to the Illicit Drugs Control Act, which came into effect on 8 December 2020 (and therefore apply to the instant offending), deem count 1 to be supplying cannabis. 
21.	For that reason, to give effect to Parliament’s evident intention and the principles referred to above, it is necessary to impose more severe sentences at the upper end of the Terewi ranges. However, it must also be recalled that the Tongan statutory ranges for less than 28 grams are a maximum of 1 year imprisonment and for 28 grams and above, a maximum of 7 years imprisonment. For an example of a sentence involving greater weights of cannabis in recent times, see R v Wolfgramm [2020] TOSC 78, where for cultivation of just under 100 kilograms, which was regarded as within the third of the Terewi categories referred to in Vea, a starting point of 5 years was set. 
22.	In this case then, having regard to the seriousness of the offending, the amount of cannabis the subject of count 1 (now deemed to be supplying), the principles referred to above and in an endeavour to rationalise the various and varying comparable sentences referred to above, I set the following starting points:
(a)	count 1 – 2 years and 3 months’ imprisonment;
(b)	count 2 – 15 months’ imprisonment; and
(c)	count 3 – 3 months imprisonment. 
Mitigation
23.	For the Defendant’s early guilty plea and relevantly previous good record, I reduce those starting points to the following sentences:
(a)	count 1 - 18 months’ imprisonment;
(b)	count 2 – 10 months’ imprisonment;
(c)	count 3 – 2 months’ imprisonment.
24.	The sentences for counts 2 and 3 are to be served concurrently with that for count 1. 
Suspension
25.	The considerations in Mo’unga [1998] Tonga LR 154 at 157 favour suspension in this case. The Defendant is young.  This is his first detected drug-related offending. He co-operated with the police and pleaded guilty at the earliest opportunity. I take into account his remorse and the strong family and community support he has around him as well as his academic achievements and good employment potential, should he be determined to stay away from illicit drugs. In that regard, I am confident that he is likely to take the opportunity afforded by a suspended sentence to reform his life and resume a path of responsibility and contribution to society which no doubt his late father hoped for, and expected of, him.   
26.	Accordingly, I will order that the sentences be fully suspended for a period of 2 years and on conditions as set out below. 
Result 
27.	The Defendant is convicted of:
(a)	cultivation of cannabis and is sentenced to 18 months’ imprisonment;
(b)	possession of utensils and is sentenced to 10 months’ imprisonment; and
(c)	possession of cannabis and sentenced to 2 months’ imprisonment. 
28.	The possession sentences are to be served concurrently with the cultivation sentence.
29.	The sentences are to be fully suspended for a period of 2 years from today, on condition that during that 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 the pronouncement of this sentence; 
(d)	reside where directed by his probation officer;
(e)	complete an alcohol and drugs awareness course as directed by his probation officer; and 
(f)	perform 80 hours community service as directed by his probation officer. 
30.	Failure to comply with the above conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.  
31.	Pursuant to:
(a)	 s 32(2)(b) of the Illicit Drugs Control Act, the illicit drugs the subject of these proceedings are to be destroyed; and
(b)	s 33 of the said Act, the other items seized are to be forfeited to the Crown.  

	

NUKU’ALOFA		
M. H. Whitten QC	
10 June 2021		LORD CHIEF JUSTICE