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

CR 31 & 71 of 2022

REX
-v-
‘OKUSITINO LANGI

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN KC
Appearances:	Mr J. Lutui DPP for the Prosecution
	The Defendant in person
Date:	14 October 2022 

The charges
1.	On 13 July 2020, the Defendant was charged with possession of 43.85 grams of methamphetamine and 2.61 grams of cannabis. On 15 October 2021, after being convicted at trial, he was sentenced to 6 years and 3 months (75 months) imprisonment for the methamphetamine and 2 months for the cannabis, to be served concurrently with the head sentence. The final 15 months of the head sentence was suspended for 2 years from the date of the defendant’s release from prison on conditions.
2.	The Defendant appears today for sentencing in respect of two further proceedings.
3.	In CR 31 of 2022, on 13 May 2022, he pleaded guilty to possession of 6.93 grams of cocaine and utensils.
4.	In CR 71 of 2022, on 2 August 2022, he pleaded guilty to possession, while in prison, of 4.94 grams of methamphetamine and 2.15 grams of cocaine.
Previous convictions
5.	The Defendant has the following previous convictions in Tonga:
(a)	1998 - abetment to house breaking - six months imprisonment suspended;
(b)	2000 – theft - two weeks imprisonment suspended;
(c)	2000 - possession of cannabis - $200 fine;
(d)	2002 - house breaking, theft and possession of cannabis - head sentence of 12 months imprisonment fully suspended for two years;
(e)	2008 - grievous bodily harm an attempted armed robbery - head sentence of eight years imprisonment to be served concurrently with the sentence in CR 267/2007;
(f)	2008 – (CR 267/2007) - unlawful imprisonment, discharge of a firearm with intent to it intimidate and abetment to armed robbery - nine years imprisonment;
(g)	2015 - negligent driving - $100 fine;
(h)	2019 - driving under the influence and negligent driving - $400 fine;
(i)	2020 - negligent driving - $100 fine;
(j)	2021 – (CR 45/2021) - possession of methamphetamine and cannabis - Head sentence of six years and three months with the final 15 month suspended for two years.
6.	In CR 45/2021, information from the United States embassy in Fiji showed that the Defendant was deported from the U.S. to Tonga for multiple criminal convictions including possession of narcotics, theft, and receiving stolen property. Further information from Interpol filed in these proceedings recorded that offending occurred between 1993 and 1996.
CR 31 of 2022 
The offending
7.	Just after midnight on 12 September 2021, Police were patrolling when they noticed a vehicle travelling westward on Mateilona Road in which the Defendant was driving with two other passengers. Police stopped the vehicle and informed the Defendant that he was being arrested for breaching the curfew (during covid-19 restrictions). They then conducted a search of the Defendant and found two packs of what was later confirmed to be cocaine and $645 in cash. The Defendant told the officers that it was cocaine and that it was his.
8.	Later that morning, police conducted a search at the Defendant’s residence where they found over a hundred empty dealer packs, a bong bottle, a piece of can folded into a cone and a plastic cup containing white powder and tablets. The Defendant admitted that the items belonged to him. 
9.	When later interviewed by the police, the Defendant elected to remain silent.
Crown’s submissions
10.	The Crown submits the following as aggravating features: 
(a)	drug offending is a serious issue in Tonga;
(b)	possession of a Class A drug;
(c)	the time of offending was after mid-night which was during curfew;
(d)	the amount of the drugs; 
(e)	together with the empty dealer packs is deemed supplying;
(f)	the bong bottle indicates the Defendant was a drug user; and
(g)	the Defendant was found guilty after trial in CR 45/2021 of possession of methamphetamine on 9 September 2021 just three days prior to this offending. 
11.	The Crown referred to the following comparable sentences: 
(a)	Sione Moli (CR 141/2021) – the defendant pleaded guilty to possession of 6.91 grams of methamphetamine, 0.88 grams of cannabis and utensils. He was sentenced to three years’ imprisonment on count 1, one month on count 2 and 12 months on count 3, all concurrent. 
(b)	‘Amusia He ‘A Mateni (CR 213/2020) – the defendant was convicted after trial of possession of 8.08 grams of methamphetamine and interfering with evidence. He was sentenced to three and a half years on count 1 and 18 months on count 2, concurrent. The final 12 months of the head sentence was suspended for two years on conditions. 
(c)	Paula Moala (CR 186 & 280/2020) – the defendant pleaded guilty in two matters to (in CR 186/2020) possession of 7.63 grams of methamphetamine and 2.43 grams of cannabis and (in CR 280/2020) to possession of 25 grams of methamphetamine and unlicensed ammunition. For the head offence of 25 grams of methamphetamine, a starting point of five years’ imprisonment was set, then reduced by 15 months for mitigation resulting in a sentence of three years and nine months’ imprisonment, with the final 18 months suspended on conditions. The starting point in CR 186/2020 was three years, reduced by nine months in mitigation. One year of that resulting sentence was added to the head sentence in CR 280/2020, resulting in an aggregate sentence of four years and nine months’ imprisonment with the final 18 months suspended on conditions. 
(d)	Fineasi Hafoka (CR 205/2019) – the defendant pleaded guilty to possession of 7.7 grams of methamphetamine and 445.91 grams of cannabis. For the methamphetamine, a starting point of four years’ imprisonment was set, reduced by 12 months for mitigation, resulting in a sentence of three years imprisonment. For the cannabis, he was sentenced to 18 months, of which, six months was added sentence for the methamphetamine. The final nine months of the aggregate sentence was suspended. 
(e)	Viliami Mangisi (CR10/2018) – the defendant was convicted of possession of 1,969.14 grams of methamphetamine and attempting to export it. Cato J applied the sentencing bands for class A drugs revised by the New Zealand Court of Appeal in Zhang v R [2019] NZC 5017. A starting point of 14 years was set. The Defendant was sentenced to 12 ½ years imprisonment.
12.	The Crown submits the following sentencing formulation:	
(a)	count 1 – a starting point of four years’ imprisonment, reduced by 12 months for mitigation; and
(b)	count 2 – a sentence of 12 months’ imprisonment to be served concurrently.
Presentence report
13.	In response to the direction in this matter for the filing of a presentence report, the probation office filed the same report filed in 2021 for CR 45/2021 together with a brief update in relation to the offending in CR 71/2022 discussed below. I therefore recite the same summary of the presentence report from the sentencing remarks in CR 45/2021.
The Defendant is [now 48] years of age. He is the youngest of seven children. He dropped out of school at the age of 14 to help his father support their family. He and his family migrated to the United States in the early 1980s. That move changed his life. He became influenced by gang members and engaged in crime. By the time he was 18, he had already served time in prison. He later committed another offence which led to his deportation to Tonga in 1997.
In 2001, the Defendant married, from which he has three children.
He used to operate a business selling water and performing construction work.
The relevant town officer described the Defendant as a ‘non-active member’ of, and a threat to the safety of the community.
The probation officer [then] opined that the Defendant:
(a)	is at moderate risk of re-offending;
(b)	[was not remorseful and continued to deny any involvement with the drugs found in his house in relation to that proceeding]; and
(c)	has no prospects for effective rehabilitation.
Notwithstanding, the officer recommended imprisonment with partial suspension and with rehabilitation programs in prison and when the Defendant is released.
Consideration
14.	The statutory maximum penalties for the subject offences are:
(a)	possession of cocaine – a fine of $1 million, life imprisonment or both; and
(b)	possession of utensils - a fine of $10,000, 3 years imprisonment or both.
15.	Pursuant to ss 4(2)(b) of the Act, the possession of cocaine here, being over 0.25 grams, is deemed to be supplying. The presence of the other drug dealing related paraphernalia and utensils confirms that presumption. Penalties for supplying (deemed or actual) ought generally be more severe than for possession simpliciter: Epuefi Laimani v R (AC 12/21, 24 May 2022 at [22]).
16.	The guidelines in Zhang v R [2019] NZCA 507 place the cocaine offending here in band two (for less than 250 grams) indicating a starting point range between two and nine years. The amount here places him at the lower end of that band although his role and culpability place him higher along that range. 
17.	Recently, in Cavallo v R [2022] NZCA 276, the New Zealand Court of Appeal considered the application of the Zhang guidelines for sentencing in cases involving cocaine.  On the basis of expert scientific evidence, the Court of Appeal considered that cocaine is slightly less harmful than methamphetamine and therefore sentencing for like quantities of cocaine should not exceed sentencing for methamphetamine and should generally be slightly below comparable methamphetamine starting points – engaging a discount of around five per cent. I see no reason why a similar approach should not be adopted in Tonga, especially while, as in New Zealand, cocaine use remains comparatively rare. 
18.	I also take into account that the offending here occurred only days after the Defendant was convicted at trial in CR 45/2021 and while he was on bail awaiting sentence. That, combined with his previous convictions, demonstrates that he has manifested a continuing disobedience to the law. In that case, the sentencing objectives of retribution, deterrence and protection of society all indicate that a more severe penalty is warranted: R v Tapueluelu [2021] TOSC 140 at [19].
19.	Having regard to the seriousness of the offending, the statutory maximum penalties, the above comparable sentences and principles referred to, I consider the appropriate starting point in this case for count 1, possession of cocaine, to be 4 ½ years (or 54 months) imprisonment.
20.	For the Defendant's early guilty plea, I reduce that starting point by 10 months, resulting in a sentence of 44 months imprisonment.
21.	In relation to count 2, possession of utensils, I agree with the Crown’s recommendation of a sentence of 12 months imprisonment, to be served concurrently with the sentence imposed on count 1. 
CR 71 of 2022 
The offending 
22.	On 20 December 2021, during a daily routine search at the prison, the officer noticed a suspicious plastic bag inside the Defendant’s shoe and reported it. The Defendant was then taken to the Custodial Office to be fully searched. During that search, the officers found a total of five packets of methamphetamine (totalling 4.94 grams) inside the Defendant’s shoes and $63 in cash. He admitted to owning the drugs.
23.	The next day, the Defendant’s cell was searched and a packet of cocaine (2.15 grams) and $36 in cash were found inside his mattress.
24.	When interviewed, the Defendant elected to remain silent. 
Crown’s submissions
25.	The Crown submits the following as aggravating features of this offending:
(a)	the seriousness of the offence, the possession of illicit substances continues to plague our society; 
(b)	the Defendant is presumed to be selling Class A drugs pursuant to ss 4(2)(b) of the Act counts;
(c)	the crime was committed while the Defendant was serving a term of imprisonment for similar offending; 
(d)	the Defendant attempted to conceal the drugs; and
(e)	the Defendant has a long list criminal history including for similar offending here and in the United States. 
26.	The only mitigating feature is the Defendant’s early guilty plea.   
27.	For this proceeding, the Crown referred to the following comparable sentences: 
(a)	Viliami Mangisi (CR 10/2018) – as summarised above. 
(b)	‘Emeline Haisila (CR 22/2022) – the defendant pleaded guilty to possession of 2.43 grams of methamphetamine and utensils. She too had previous convictions and the offending during the suspension period of a previous sentence. The defendant had young children, pleaded early and her first sentence was fully suspended. A starting point of three years imprisonment was set to reflect the aggravating features. The Defendant was sentenced to two years and nine months imprisonment with the final nine months suspended for 12 months on conditions. 
(c)	Piliote Uasike (CR 30/2022) – the defendant pleaded guilty to possession of 4.66 grams of methamphetamine and utensils. He was currently serving a sentence of 1 year and 8 months with e final 4 months suspended.  For the methamphetamine, Tupou J set a starting point of 3 ½ years, which was reduced by 6 months for the early plea.  In considering the totality principle, her Honour ordered that the sentence of 3 years be served concurrently with the existing sentence. She also suspended the last 12 months for two years on conditions. 
(d)	Bruno Latu (CR 147 & 184/2021) – The defendant pleaded guilty over two proceedings to possession of 1.72 grams of methamphetamine and other offences. For the methamphetamine, a starting point was set of 2 ½ years, which was reduced to 22 months imprisonment for the early guilty plea. The head sentences in each proceeding were ordered to be served  cumulatively as the offending in each was unrelated both temporally and in nature. 
28.	Here, the Crown submits the following sentencing formulation:
(a)	count 1:
(i)	a starting point of 3 years imprisonment;
(ii)	12 months added for aggravating factors;
(iii)	reduced by 12 months for the early guilty plea;
(iv)	resulting in a sentence of 3 years imprisonment. 
(b)	count 2:
(i)	a starting point of 2 years imprisonment;
(ii)	12 months added for aggravating factors;
(iii)	reduced by 12 months for early guilty plea;
(iv)	resulting in a sentence of 2 years imprisonment, concurrent with the sentence on count 1.  
Presentence report
29.	In his update, the probation officer reported that the Defendant confirmed that the drugs the subject of this proceeding belonged to him and that he supplies drugs to inmates in prison. He is said to be truly remorseful.
Defendant’s submissions 
30.	On 15 September 2022, and in apparent response to the directions for sentencing in this proceeding, the Defendant filed a letter in which he confirmed responsibility for his crimes and asked for mercy. After noting his current sentence, the Defendant wrote: 
“… my absence from home has taken its toll on my family not only emotionally but also financially. And the only alternative I saw as means of support from behind bar was to do what I did. It was a bad decision in desperation on my part which I now deeply regret. 
I’m a husband to a loving supporting wife and a father to three fine young boys and there is nothing more important to me than to get back to them and be the family man that I know I am capable of doing. I’ve made a lot of mistakes and bad decision in life which I cannot undo. But I regret everything lesson learned, and I look to the future with a promise of good faith that I will, from now on, abide by law. Please give me a chance of opportunity to realize my hopes and make things right I’m at your mercy and your forgiveness.”
Consideration
31.	The observations set out in paragraphs 14 to 18 above are equally apposite to an assessment of the seriousness of the offending and appropriate starting points for this proceeding.
32.	However, the circumstances of this offending are more troubling for two reasons. Firstly, for the Defendant to be in possession of and selling class A drugs in prison whilst serving a lengthy sentence for similar offending demonstrates an even more egregious and contumelious disregard for the law than his record already depicted. Secondly, for the Defendant to have been able to possess and sell drugs in prison suggests real operational deficiencies in security within the prison, something which, no doubt, the Commissioner for Prisons may review upon considering these remarks.
33.	Further, even though the Defendant was charged separately with possession of the methamphetamine and cocaine, I consider it appropriate to approach the sentence for this offending on the basis of the aggregate weight of those class A drugs, which is similar to that found in CR 31/2022 discussed above. It would be artificial, in my view, to impose sentences for each of the lesser amounts when the drugs were found on the Defendant’s person and in his mattress at or about the same time and he had them for the same purpose of supplying to other inmates. Separate sentences would have the unintended effect of diluting the overall punishment to be imposed which would not accurately reflect the criminality involved.
34.	Having regard to the seriousness of the offending, including the amounts of the class A drugs involved, that the Defendant was in possession (deemed supply) of them whilst in prison serving a sentence for similar offending, his admission to selling drugs to inmates, and the other matters canvassed in the consideration section for CR 31/2022 above, I consider the appropriate starting point for the combined offending here to be 5 years imprisonment.
35.	For the Defendant's early guilty plea, I reduce that starting point by 12 months resulting in a sentence of 4 years imprisonment. 
Cumulation and totality
36.	The next issue is whether the above sentences are to be served concurrently or cumulatively, in whole or in part; and how they are to be treated in relation to the Defendant’s current sentence in CR 45/21.
37.	The Crown submits that the offending in the two proceedings the subject of this ruling should be regarded as separate offences because they were committed months apart. However, to give effect to the totality principle, it is submitted that 12 months of the sentence in CR 71/2022 (which the Crown submitted ought to have been 3 years imprisonment) should be added to the sentence in CR 31/2022 (which the Crown also submitted ought to have been 3 years imprisonment), and that 3 years of that aggregate sentence should be served cumulatively to the current sentence in CR 45/2021. That approach, the Crown submits, reflects the fact that the Defendant committed the offences in CR 31/2022 in breach of his bail conditions in CR 45/2021 after he had been convicted and while awaiting sentence, and to reflect the fact that he committed the offending in CR 71/2022 while serving a prison sentence, among other aggravating features.
38.	Ordinarily, cumulative sentences should only be imposed if the offences are viewed as separate crimes or are unrelated. As discussed in R v Selupe [2021] TOSC 47 and R v 'Asa [2020] TOSC 72, the question involves two issues: 
(a)	first, whether the offences were so closely connected that they should be regarded as part of the one course of criminal activity; and
(b)	secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent. 
39.	The offending in the two proceedings here, although both for deemed supply of class A drugs, occurred three months apart and in very different circumstances. In my view, they constitute separate crimes. Prima facie, therefore, the sentences should be served cumulatively. Those sentences total 7 years and 8 months imprisonment. If added to the current sentence of 6 years and 3 months, the Defendant would be facing a total of 13 years and 11 months imprisonment.   
40.	The totality principle requires the Court to have regard to the totality of the offending, particularly where the offences are a series of related offences. According to the principle, a Court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved: McDonald v The Queen (1994) 48 FCR 555 at 563. While it has been said that in the case of a defendant being sent to prison for the first time, the accumulation of sentences to be imposed ought not result, unless there is no alternative, in a total which is a crushing first period of imprisonment, and that justice should avoid placing such a prisoner in a position where all hope is lost, I consider those epithets to be applicable to the position the Defendant (who is far from a first time prisoner) here now faces. 
41.	It is useful to pause here and reflect on the gravity and extent of the Defendant’s recent offending. Between CR 45/2021 and these two proceedings, he has been convicted of possessing (and deemed to be supplying), during a period of just under 18 months, a total of approximately 57 grams of methamphetamine and cocaine, and he has done so in breach of bail conditions and whilst in prison.  Combined with his deplorable criminal history spanning almost 25 years, including similar offending as well as crimes of dishonesty and violence, it is difficult to garner much sympathy for the position he is now in. Over that period, he has been a regular and serious threat to the community, and his more recent foray into drugs and drug dealing, at a time when Tonga is endeavouring to combat the recent upsurge and scourge of drugs, particularly methamphetamine, only serves to heighten the threat the Defendant poses. 
42.	However, to give effect to the totality principle, while maintaining consonance with the sentencing objectives of punishment, denunciation, protection of the community, deterrence and rehabilitation, I consider it appropriate to order that 20 months of the sentence in CR 31/2022 plus 28 months of the sentence in CR 71/2022 (that is, a total of 4 years) be served cumulatively with the sentence the Defendant is currently serving for CR 45/2021 less the suspended portion of that sentence of 15 months (which is 5 years). That makes a total aggregate term across the three proceedings of 9 years. The balance of the instant sentences is to be served concurrently with each other and the total aggregate sentence. 
Suspension
43.	The Crown submits that the Defendant is not eligible for any suspension of the sentences in these proceedings. By reason of his extensive criminal history, in which he received a number of fully and partly suspended sentences, and the circumstances of the instant offending, I agree.
44.	However, the Crown submitted that the suspended portion of the sentence in CR 45/2021 (the final 15 months), be effectively pushed back to operate as the suspension period for the overall combined period of the sentences. The decision above for the additional terms for these proceedings to commence at the end of the 5 years to be served in CR 45/2021 effectively gives credit for that suspended period.
45.	In light of the slightly higher sentences imposed here compared to those submitted by the Crown, and to enhance the intended incentive for rehabilitation (suggested by the Defendant’s expressed remorse) and deterrent (from reoffending) in any suspended sentence, I consider it appropriate to suspend the final 2 years of the aggregate sentence. 
Result
46.	In CR 31 of 2022, the Defendant is convicted of:
(a)	possession of cocaine and sentenced to 44 months imprisonment; and 
(b)	position of utensils and sentenced to 12 months imprisonment, to be served concurrently with the above sentence.
47.	In CR 71 of 2022, the Defendant is convicted of possession of 4.94 grams of methamphetamine and 2.15 grams of cocaine and is sentenced to four years imprisonment.
48.	To give effect to the totality principle, 20 months of the sentence in CR 31 of 2022 plus 28 months of the sentence in CR 71 of 2022 (that is, a total of 4 years) is to be served cumulatively with the sentence being served for CR 45 of 2021 up to the suspended portion (namely, 5 years), making a total aggregate sentence across the three proceedings of 9 years imprisonment. 
49.	The balance of the sentences in CR 31 and 71 of 2022 are to be served concurrently with each other and the overall combined sentence for the three proceedings. 
50.	The order for partial suspension in CR 45 of 2021 is rescinded and in substitution, it is ordered that the final 2 years of the total aggregate sentence of 9 years is 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, he 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; and
(d)	(subject to having completed such courses in prison) complete courses in alcohol and drug awareness and life skills as directed by his probation officer.
51.	Pursuant to s. 32 of the Act, the drugs the subject of these proceedings are to be destroyed.
52.	Pursuant to s. 33 of the Act, the cash and other items seized are to be forfeited to the Crown.  

	
NUKU’ALOFA		M. H. Whitten KC	
14 October 2022		LORD CHIEF JUSTICE