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

CR 4 & 5 of 2021

REX
-v-
[1] KAE TAU’AIKA
[2] JOE TUPOUMALOHI

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN QC
Appearances:	Ms ‘E. Lui for the Prosecution
	Kae Tau’aika in person 
	Mrs Tavo-Mailangi for Joe Tupoumalohi
Date:	3 August 2022 

The charges
1.	During an adjournment of the trial of these proceedings, the third co-accused, Latu Selu, died during an unrelated police chase. At the conclusion of the trial on 21 June 2022, the remaining two co-accused were acquitted of the principal charge (possession of 2.19 grams of methamphetamine, which was found to belong to Selu). However, in relation to the other charges:
(a)	Kae Tau’aika (“Kae”) was found guilty of destruction of evidence, contrary to s. 37A of the Illicit Drugs Control Act (“the Act”), and unlawful possession of utensils, contrary to s. 5A of the Act; and
(b)	Joe Tupoumalohi (“Joe”) was also found guilty of unlawful possession of the same utensils.  
The offending
2.	On 30 May 2021, Police received information that drugs were being sold from Joe’s residence in Kolofo’ou. They conducted a warrantless search. As police were surrounding and about to enter the premises, one of them heard the sound of smashing glass. When they entered, they found Kae seated on a chair by the door while Joe was standing by an ironing board with an iron in one hand and a phone in the other. The broken glass of a test tube was found on the floor closest to Kae in the very small abode.  Near to Kae and Joe, police found 181 dealer packs on a coffee table, and an electronic weighing scale and six test tubes wrapped in toilet paper and a bandana behind a mirror on top of a dining table. 
3.	When questioned, Kae admitted to breaking “a glass”.  Both otherwise chose to remain silent when asked about methamphetamine found behind the toilet cistern (where Latu Selu was initially found) and the other items found. 
Crown’s submissions
4.	The Crown submits the following as aggravating features of Kae’s offending:
(a)	the seriousness of the offending;
(b)	he destroyed evidence;
(c)	there were also drugs and a substantial amount of cash found;
(d)	the number of utensils was substantial; and 
(e)	he did not co-operate with the authorities. 
5.	Kae has the following previous convictions:
(a)	1 August 1996 – Magistrates Court – disturbance - $20 fine; 
(b)	31 August 1999 – Magistrates Court – grievous bodily harm and assault – 6 months’ imprisonment suspended for 2 months;
(c)	31 August 1999 – Magistrates Court – two counts of assault – 6 months’ probation;
(d)	8 February 2000 – Magistrates Court – assault - $50 fine;
(e)	1 June 2001 – Supreme Court – wilful damage to building and unlawful entry into building at night – 3 months’ imprisonment each, $75 fine, suspended for one year, required to attend Salvation Army alcohol counselling; and
(f)	5 October 2021 – Magistrates Court – failure to comply with the direction of an authorised officer – $200 fine.
6.	The Crown submits that there are no mitigating factors.
7.	The Crown submits the following aggravating features of Joe’s offending:
(a)	the seriousness of the offending;
(b)	drugs found at the residence with substantial amount of cash;
(c)	substantial number of utensils found at residence;
(d)	he breached his bail in this proceeding by his commission of the offences the subject of CR 96 and 97/2022 (referred to below); and 
(e)	he did not co-operate with the authorities.
8.	On 13 May 2022, in CR 96 and 97/2022, Joe pleaded guilty in the Magistrates Court to possession of 0.36 grams of methamphetamine and utensils, and was sentenced to 9 months imprisonment for the methamphetamine and 6 months for the utensils, concurrent. The sentences were fully suspended for one year on conditions including 40 hours community service and completion of a drug and alcohol abuse course.
9.	The Crown also submits that there are no mitigating factors in relation to Joe.
10.	The Crown referred to a number of comparable sentences. Those relevant to the instant offences include:
(a)	Fatongiatau [2021] TOSC 9 – the Defendant was convicted after trial of two counts of possession of illicit drugs and one count of interfering with evidence where he put plastic packets into his mouth and starting chewing before police stopped him and removed the packets. He was sentenced, relevantly, to 6 months’ imprisonment. 
(b)	Tafuna CR 198/2020 – the Defendant pleaded guilty to swallowing plastic packets suspected of containing methamphetamines. He was sentenced to 3 months’ imprisonment. 
(c)	Latu [2021] TOSC 81 – the Defendant pleaded guilty to multiple charges (CR 289/20, 12/21 and 101/21), including destroying evidence by placing a pack of cannabis in his mouth, using his head to smash a test-tube and possession of utensils. He was sentenced to 18 months’ imprisonment for destruction of evidence and 9 months for possession of utensils.
(d)	Pole’o CR 57/21 – the Defendant, a first offender, pleaded guilty to destruction of evidence and possession of utensils. Starting points of 24 months and 6 months respectively were set. After discounts for mitigation, she was sentenced to 16 months for the destruction of evidence and 4 months for the utensils. The sentences were fully suspended for 2 years on conditions. 
(e)	Haisila CR 22/22 – the Defendant, who had previous convictions for similar offending, pleaded guilty to a number of drug-related offences. For possession of utensils, of which there were many, she was sentenced to 10 months’ imprisonment.
11.	Here, the Crown submits the following sentencing formulation:
(a)	Kae: for the head sentence - destruction of evidence - a starting point of 2 years imprisonment, and suspension.
(b)	Joe: a starting point of 12 months’ imprisonment, no mitigation, and no suspension.
KAE TAU’AIKA
Presentence report 
12.	Kae is 47 years of age. He had a good upbringing in Vava’u in a large family of 10 siblings. The family’s main source of income was their father’s plantation. He was educated to form 4 at Saineha High School. He used to sell vegetables until he had to quit due to side effects from using pesticides. He works in construction when work is available. 
13.	He is married with six children. 
14.	In relation to the offending, Kae admitted to the probation officer that he has a drug addiction and that he is remorseful for the crimes he has committed. He vowed to turn his life around and is willing to undergo rehabilitation. The probation officer opines that due to his long-term use of drugs, and association with “criminal peers”, Kae “may still be at risk of re-offending”. 
15.	I have considered the letters of support for Kae that were attached to the presentence report. The authors all described him as reliable, hardworking and a respected farmer in the community. The probation officer recommends partial suspension, on conditions, including that Kae have no further contact with Joe or any other known offenders.
Starting points
16.	The maximum statutory penalties for:	
(a)	destruction of evidence is 15 years imprisonment; and 
(b)	possession of utensils is a $10,000 fine, 3 years imprisonment or both.
17.	Here, the number and nature of the utensils suggested a commercial operation which was consistent with the information received by police of drugs being sold from the premises. 
18.	Having regard to the seriousness of the offending and the comparable sentences referred to, I set starting points of 18 months imprisonment for the destruction of evidence and 12 months imprisonment for the possession of utensils, to be served concurrently.
Mitigation
19.	I agree with the Crown’s submission that there are no mitigating factors by which the starting points might be reduced. 
Suspension
20.	The only factor in favour of suspension in Kae’s case is that it has been over 20 years since his last significant conviction. Since then, he has married and had children. These are also his first detected drug offences. During the trial, I gained the impression that, in terms of culpability, he was the minor player of the three. 
21.	I am also moved by Kae’s admission to the probation officer of suffering from drug addiction and what appears to be his genuine remorse and desire for rehabilitation. His good reputation in and contribution to his community is also favourable. 
22.	In those circumstances, I am prepared to offer Kae a chance to continue his rehabilitation by fully suspending his sentences on the conditions set out below.
JOE TUPOUMALOHI
Presentence report
23.	Joe is 36 years of age. He is the third of ten children in his family. He was raised by his maternal aunt. He was educated to form 5 and later graduated from a technical institute with a basic certificate in seafaring. In 2021, he obtained a Master Class 4 Certificate. 
24.	Since 2003, Joe worked for a number of shipping companies. In the five years prior to this offending, he was employed by Tofa Ramsay Shipping Company Ltd where he was regarded as a good employee with a hardworking attitude. However, as a result of this offending, he was dismissed. 
25.	He is married with four children ranging in ages from 13 to 2. His wife describes Joe as a “loving and devoted family man” who fulfils his family’s needs and meets their religious obligations. 
26.	In relation to the offending, Joe maintains his innocence and continues to deny any involvement with illicit drugs, even in the face of his guilty plea for drugs in the Magistrates Court earlier this year.  It follows that he has shown no remorse for the instant offending. He has completed 36 of the 40 hours of community service ordered as part of that suspended sentence. He is scheduled to commence his rehabilitation course with the Salvation Army this week.  
27.	The probation officer opines that in continuing to deny this offending, Joe is trying to avoid the consequences of his actions. 
28.	The probation officer recommends a partly suspended sentence.
Defence submissions 
29.	In addition to the information contained in the presentence report, Mrs Mailangi submitted, relevantly and in summary:
(a)	after Joe was dismissed from his employment with Tofa Ramsay Shipping Company Ltd, he found employment with Opas Construction; 
(b)	since volcanic eruption followed by Covid-19 lockdown restrictions, he ha s been unemployed
(c)	Joe’s wife works as a schoolteacher while he performs domestic duties at home;
(d)	he also carries out community work for his village ‘to keep him busy’;
(e)	the events of the instant offending and the loss of his employment with Tofa Ramsay affected him mentally and emotionally;
(f)	his inability to financially provide for his family led him to make ‘a bad call’ resulting in the offending in Magistrates Court proceedings CR 96 and 97/2022 which occurred on 11 March 2022, that is, after the instant offending (in May 2021);
(g)	he acknowledges that the recent offending constituted a breach of his bail in this proceeding, but it was submitted that had been taken into account in his sentence for CR 96 and 97/2022;
(h)	in relation to this offending, Joe co-operated with the police during the search even though he exercised his rights to silence; 
(i)	has not reoffended since March 2022 and has almost completed the requirements of that suspended sentence;
(j)	he should be given a chance to continue with his rehabilitation in order to turn his life around; and
(k)	the evidence against him was circumstantial and relied on the fact that he rented the residence;
(l)	the offending involved other people with whom Joe was charged, including Latu Selu who was living with Joe there at the time;
(m)	the utensils “were either hidden [or] not visibly apparent”;
(n)	his not guilty plea should not be considered as a circumstance of aggravation; and that should not be taken into account because other people were present and involved. 
30.	For those reasons, and because Joe “is still young and has a life ahead of him which would be impacted by a custodial sentence”, Mrs Mailangi submitted that any sentence should be suspended. In that regard, she referred to the sentences in the case of Pangi [2021] TOSC 188 and Afu [2021] TOSC 84, which I have considered. 
31.	Mrs Mailangi also filed three letters of support which I have also considered.
Starting point
32.	As noted above, the maximum statutory penalty for possession of utensils is a $10,000 fine, 3 years imprisonment or both.
33.	I do not accept Joe’s protestations about his innocence or the verdict against him as conveyed through his counsel. As stated in the verdict, the empty dealer packs were in plain sight only a couple of metres from Kae and Joe when the police entered the small residence which consisted of little more than one open living room with a bed at one end and bathroom facilities at the rear. The presence of the scales and test tubes behind the mirror, albeit not entirely obscured from sight, must have been known to anyone living in the premises. Joe was renting the premises. Latu Selu was living with him. It was also plain from the evidence that Latu Selu was the ringleader. In my view, Joe was next in line in terms of culpability. However, apart from the above observations, the evidence at trial did not provide any objective basis for distinction between Joe and Kae in respect of the possession of utensils for which they were jointly charged. 
34.	Therefore, having regard to the seriousness of the offending, the comparable sentences and observations referred to above, I also set a starting point for the possession of the utensils by Joe of 12 months imprisonment.
Mitigation
35.	Contrary to Mrs Mailangi’s submission, Joe’s not guilty plea and continued maintenance of his professed innocence cannot be regarded as circumstances of aggravation for the purposes of sentencing. However, they, together with his conviction earlier this year, mean that he is not entitled to any discount in mitigation. Mrs Mailangi did not submit otherwise.  
Suspension
36.	The considerations for suspension discussed in Mo’unga [1998] Tonga LR 154 at 157, in Joe’s case, produce a mixed result. While he is of good standing within his family and community, he is not particularly young. Although he has a conviction for drugs earlier this year, the instant offending is in fact his first in time. I do not accept that by acquiescing to the lawful directions of police during their search, Joe co-operated with them. That concept usually involves giving frank and honest answers to questions aimed at identifying whether an accused person committed the offence or has other information which might assist police with their investigations. Joe did not admit to the offending then, nor upon his arraignment, nor at his trial where the evidence against him was more than compelling, nor even now. The offending was clearly premeditated. His lack of remorse and refusal to accept responsibility weigh against his propensity for genuine and lasting rehabilitation. 
37.	Had Joe been sentenced for the instant offending and that in CR 96 & 97/22 at the same time, I have little doubt that his aggregate sentence would, at best, only have been partially suspended. 
38.	However, in light of his current suspended sentence and the fact that he appears to be complying with the conditions thereof, and to also ensure adequate general and specific deterrence, I consider it appropriate to fully suspend the instant sentence but to make the suspension period operative upon the completion of the suspension period of his present sentence in April 2023. I also consider it appropriate that the instant suspension be conditional upon performance of additional community service.  
Result
39.	Kae Tau’aika is convicted of:
(a)	destruction of evidence, and is sentenced to 18 months imprisonment; and
(b)	possession of utensils, and is sentenced to 12 months imprisonment, to be served concurrently with the head sentence.
40.	Kae’s sentence is to be fully suspended for a period of 2 years on condition that during that period, he is to:
(a)	not commit any offence punishable by imprisonment;
(b)	report to the probation office within the next 48 hours and thereafter as directed by his probation officer; 
(c)	complete 80 hours community service; and
(d)	complete courses in alcohol and drug abuse as directed by his probation officer. 
41.	Joe Tupoumalohi is convicted of possession of utensils and is sentenced to 12 months imprisonment. 
42.	Joe’s sentence is to be fully suspended for a period of 2 years commencing from the expiration of his suspended sentence in Magistrates Court proceedings CR 96 & 97 of 2022, and is subject to the following conditions, namely, that during the additional suspension period, Joe is to:
(a)	not commit any offence punishable by imprisonment;
(b)	report to the probation office within the next 48 hours and thereafter as directed by his probation officer; and
(c)	complete an additional 40 hours community service. 
43.	Both Defendants are advised that failure to comply with any of the above conditions may result in the suspension being rescinded and the defaulting Defendant being required to serve the unserved portion of his prison term. 
44.	Pursuant to:
(a)	ss 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, all other items and cash seized by police are forfeited to the Crown. 
			
NUKU’ALOFA		M. H. Whitten QC	
3 August 2022		LORD CHIEF JUSTICE