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R v Mailelua [2024] TOSC 103; CR 128 of 2024 (29 November 2024)

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

CR 128, 202, 212 of 2024

BETWEEN:
REX
-Prosecution
AND:
SELUVAIA MAILELUA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr A Fisi’iahi for the Crown Prosecution
The Accused in Person
Date: 29 November 2024

THE CHARGES
CR 128 of 2024

1. On 13 August 2024, the Accused pleaded guilty to the following charges:
   1. Count 1: Possession of an Illicit Drug (1.15g of methamphetamine) contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act
   2. Count 2: Attempted Destruction of Evidence (attempted to swallow a packet of meth) contrary to section 37A(1) and (2) of the Illicit Drugs Control Act
   100. Count 3: Possession of an Illicit Drug (0.58g g of cannabis) contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act
   4. Count 4: Unlawful Possession of Utensils (1 smoking pipe) contrary to section 5A of the Illicit Drugs Control Act

CR 202 of 2024 [Mag. CR 100 of 2024]

2. The charge in this summary matter is for the unlawful possession of a smoking pipe that occurred on the 22 February 2024. This is already reflected in the indictment in CR 128/24 in Count 4, therefore this summary matter discharged with to avoid a duplicate charge.

CR 212 of 2024 [Mag. CR 158 of 2024]

3. On 23 October 2024, the Accused pleaded guilty to the following charge at the Magistrate Court and the matter was bought up for joint sentencing with CR 128/2024.
   1. Count 1: Unlawful Possession of Utensils (4 empty packs, 1 smoking pipe, 2 half empty packs) contrary to section 5A of the Illicit Drugs Control Act
      

CROWN SUBMISSIONS

1. The Crown submitted their sentencing submissions on 26 November 2024 to assist the Court.
2. Aggravating and Mitigating were further submitted for the Accused with the following caselaw:
   1. R v Sakopo & Guttenbeil [CR 307-308 of 2020]
   2. R v Fiefia [CR 131 of 2021]
   100. Rex v Fonohema [CR 71 of 2023]
   4. Rex v Tu’i [CR 66 of 2019]
   5. R v Mateni [CR 213 of 2020]
   6. Rex v Mangisi [CR 10 of 2018]
3. The Crown’s recommended sentence for the Accused is 22 months’ imprisonment with the final 5 months suspended for 2 years on conditions.
   

PRESENTENCE REPORT

4. On 26 November 2024, the Probation Office filed a report detailing the Accused’s personal history, upbringing and her version of the offence.
5. The Probation Officer recommended a partly suspended sentence on the conditions; not to commit any further offence, attend a salvation army for life skills and drugs awareness course, and to be placed on probation.
   

DISCUSSION

CR 128 of 2024

6. Seluvaia Mailelua, you stand to be sentenced for an indictment containing four counts and also in relation to two summary matters committed up from the Magistrate Court.
7. In relation to CR128, the indictment this arose out of a raid by the police at a bar where they had information of the presence of illicit drugs. On your person was found 1.15g of methamphetamine, on count two you attempted to destroy the evidence by swallowing a packet of methamphetamine an extremely dangerous thing to do and you were also charged with possession of 0.58g of cannabis together with the possession of a smoking pipe for no doubt for the use of the methamphetamine.
8. A starting point in your case on Count 1 is 18 months for which I deduct three months for mitigation making a total of 15 months.
9. On count 2 I impose a sentence of 9 months concurrent, count 3 I impose 3 months concurrent and count 4, 1 month concurrent to that of Count 1.
10. The upshot is a total sentence of 15 months taking into account all material circumstances. I am prepared to suspend the last five months of the sentence which means that you serve 10 months in custody and five months suspended. The suspension is for a period of two years and is on the basis that you commit no offense during operation of that period and complying with a lawful request of the probation service.

CR 212 of 2024

11. The unlawful possession of two empty packs, a smoking pipe and a further two empty packs on the 7 March 2024.
12. The seriousness of this matter is that CR 212 of 2024 was committed during the period in which you were on bail for CR128/24. You were warned at the time that any offense which you were committed by you during bail would be seriously regarded by the court and I do so accordingly for those for that matter.
13. For the unlawful possession of two empty packs a smoking pipe and a further two empty packs I sentence you to 3 months uplifted to 6 months to take account of the breach of your breach of bail conditions making a total of 9 months which I am prepared to reduce by way a personal mitigation by 3 months resulting in a total sentence of 6 months.
14. I impose this 6-month sentence is to be served consecutively to the sentence already ordered namely 10 months in CR 128/2024 resulting in a total sentence of 16 months’ imprisonment, with the last 5 months suspended on conditions.
15. The upshot is you will serve a total of 11 months’ imprisonment, then a 5-month suspended sentence on the usual conditions.
16. I further order that the drugs and utensils are all destroyed, and all cash seized is forfeited to the Crown.
    

FINAL RESULT

17. For CR 128/2024: Count 1 on Possession of an Illicit Drug (1.15g of methamphetamine), I impose a sentence of 10 months’ imprisonment. For Count 2, 9 months imprisonment, Count 3 a sentence of 3 months imprisonment, Count 4 a sentence of 1month imprisonment.
18. For summary matter in CR 212/2024, the Accused is sentenced to 6 months imprisonment to be served cumulatively to the sentence in Count 1 of CR 128/24.
19. CR 202/2024 is discharged.
20. In total, the Accused is to serve a total of 16 months’ imprisonment for CR 128/24 & CR 212/24. The last 5 months is suspended on the following conditions:
    1. You must not commit any offence punishable by imprisonment
    2. You must report to the probation office within 48 hours of your release from custody
    100. You must complete a life skills awareness course at the direction of the Probation Officer
21. The Crown has informed me that the Accused has been remanded into custody for a period of 9 months.
22. Accounting for time served, the Accused is to serve only 2 more months in custody for these proceedings.
23. I make the appropriate orders for the destruction of all illicit drugs and utensils in these proceedings pursuant to section 32(2)(b) of the Illicit Drugs Control Act and for all cash seized is to be forfeited to the Crown pursuant to section 33 of the same act.
    

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
29 November 2024