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R v Vaka'uta [2024] TOSC 107; CR 179 of 2024 (29 November 2024)

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

CR 179 of 2024

BETWEEN:
REX
-Prosecution

AND:
MAKA KELILOPA VAKA’UTA
-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

1. On 15 October 2024, the Accused pleaded guilty to the following charge:
   1. Count 1: Possession of an Illicit Drug (0.28g of methamphetamine) contrary to section 4(1)(a)(iii) of the Illicit Drugs Control Act.
   2. Count 2: Possession of an Illicit Drug (0.42g of cannabis) contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act.
   100. Count 3: Possession of an Illicit Drug (0.32g of cannabis) contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act.
   4. Count 4: Possession of Utensils (3 empty packs, 5 pieces of a plastic scooper) contrary to section 5A of the Illicit Drugs Control Act.
   5. Count 5: Possession of Arms (17 x.38 ammunition and 1 x .223 ammunition) contrary to section 4(1) and (2)(b) of the Arms and Ammunitions Act.
      

CROWN SUBMISSIONS

2. The Crown submitted their sentencing submissions on 28 November 2024 to assist the Court.
3. Aggravating and Mitigating were further submitted for the Accused with the following caselaw:
   1. R v Tengange [CR 231 of 2019]
   2. R v Sikalu [CR 58, 60 of 2024]
   100. R v Haisila [ [2022] TOSC 40]
   4. R v Manuofetoa [ [2024] TOSC 17]
   5. R v Siulangapo [ [2023] TOSC 41]
4. The Crown’s recommended sentence for the Accused is 10 months’ imprisonment with the final 2 months suspended on conditions.

PRESENTENCE REPORT

5. On 25 November 2024, the Probation Office filed a report submitting no submission of a Pre-Sentence Report due to failure to show up by the Accused.
6. The sentence today proceeds as scheduled without a Pre-Sentence Report on that basis.

DISCUSSION

7. Mala Kelilopa Vakauta you stand to be sentenced on the indictment containing five counts count 1, 0.28g of methamphetamine, count 2, 0.42g of cannabis, count 3, 0.32 of cannabis count 4, possession of three empty packs and five pieces of plastic scooper for the use in relation to methamphetamine and in addition count five possession of some ammunition namely 17 .38 ammunition and 1 .223 ammunition without a license.
8. It is very disappointing that at your age of 64 you stand before the criminal courts for serious offences. You have of course been convicted for other matters and indeed on the 11 October this year, I acquitted you after a trial of the theft of a tractor which your co-accused is to being dealt with today.
9. Methamphetamine is always a serious matter. It is a scourge in the island in the community. It destroys families as well as the person involved. It encourages international crime, and the court is determined to stamp it out.
10. Accordingly, I sentence you to 15 months on count one for which I deduct five months by reason of your personal mitigation namely your age, commitments on your farm and responsibility to your 30 grandchildren and your non-involvement of drugs in the past that makes a total of 10 months’ imprisonment.
11. In addition to count 2, 3, 4 and 5, all sentences are to be concurrent Count 1, for Count 2 for 3 months, count 3 for 3 months count 4 for 8 months and count 5 for 8 months.
12. So in all that sentence of 10 months I order 6 months be suspended that must be suspended for a period of two years on condition that you report to probation within 48 hours of your release, you must not commit any offence punishable by imprisonment you ought to remain on probation and you must complete a drugs awareness course of direction of the probation officer of the Salvation Army.
13. The upshot is that you will serve sentence of 4 months in custody and 6 months suspended.
14. All drugs and utensils are to be destroyed.
15. Similarly, the ammunition is to be forfeited and then destroyed.

FINAL RESULT

1. For Count 1 on Possession of an Illicit Drug (0.28g of methamphetamine), I impose a sentence of 10 months’ imprisonment.
2. For Count 2, 3 months imprisonment, for Count 3, 3 months imprisonment, for Count 4, 8 months imprisonment and for Count 5, 8 months imprisonment.
3. All sentences imposed in Count 2 to 5 is to be served concurrently to Count 1.
4. For the avoidance of doubt, the Accused is sentenced to a period of 10 months’ imprisonment with the last 6 months suspended for 2 years 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 drugs awareness course at the direction of the Probation Officer
5. All drugs, utensils and ammunitions are to be forfeited then destroyed.
   

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