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R v Tongia [2024] TOSC 112; CR 169 & 203 of 2024 (9 December 2024)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 169 & 185, CR 170, CR 172 & 203 of 2024

BETWEEN:

REX

-Prosecution

AND:

[1]‘OFA TONGIA

[2] TOKILUPE MESAKE

[3] ‘ILAISAANE KOLO

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr J Lutui, Director of Public Prosecutions for the Crown Prosecution

Mr O Tongia in Person

Ms T Mesake in Person

Ms I Kolo in Person

Date: 9 December 2024

THE CHARGES

‘Ofa Tongia

1. In CR 169 of 2024 on 18 October 2024, the Accused pleaded guilty to the following charges:
   1. Count 1: Possession of Illicit Drugs contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act
   2. Count 2: Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act
2. In CR 185 of 2024 on 18 October 2024, the Accused pleaded guilty to the following charges:
   1. Count 4: Possession of Illicit Drugs contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act
   2. Count 5: Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act

Tokilupe Mesake

3. In CR 170 of 2024 on 15 October 2024, the Accused pleaded guilty to the following charge:
   1. Count 8: Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act
      

‘Ilaisaane Kolo

4. In CR 172 of 2024 on 15 October 2024, the Accused pleaded guilty to the following charge:
   1. Count 6: Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act
5. In CR 203 of 2024, the Accused pleaded guilty to the following charges at the Magistrate Court and was committed up as a summary matter for joint sentencing:
   1. Unlawful the possession of 0.49g of methamphetamine [Mag. CR 505/2024], 0.06g of cannabis [Mag. CR 504/24] and the unlawful possession of utensils being 19 empty packs [Mag. CR 485/24].
      

DISCUSSION

6. I have already sentenced four defendants in relation to the matter for which you now appear and I repeat my sentencing remarks on that occasion.
7. You were arrested following the execution of a search warrant on the 10 June 2024 some of you were playing ping-pong others were standing by still others were seated in it in a car near the ping-pong table and some fled that were quickly recaptured and a arrest arrested.
8. In considering what sentence justice requires I’ve been helpfully provided with crime prosecution submissions and in some cases a probation report which I have carefully perused. Let me say it once it’s quantities of methamphetamine in even in small quantities in the order way will result in your sentence.
9. This has been the policy of this Court for some years. It was well said by my distinguished predecessor Lord Chief Justice Whitten in R v ‘Amusia Mateni.
10. I have perused the sentencing comparable hopefully set out by the Crown, they are of course helpful guidelines and I take them into account but each defendant must be sentenced on the fact and circumstances applicable to him.

CR 169 & 185 of 2024 – Rex v ‘Ofa Tongia

11. For CR 169 of 2024, You ‘Ofa Tongia have pleaded guilty to Count 1, being in possession of 1.5g of methamphetamine and Count 2, being in the unlawful possession of utensils.
12. You have a bad record including theft at the end on the 20 of September 2024 at the Magistrate Court for illicit possession of drugs and a lawful possession of utensils.
13. You were given a 9 months suspended sentence for 12 months, now of course in breach of that suspended sentence which must now be activated.
14. Administrively, with no assistance from the Prosecution, I withdraw my considerations in [8] & [9] after further clarification on the Accused’s previous convictions. There is no suspended sentence to be activated here for Mr ‘Ofa Tongia.
15. In Count 1, I take a starting point in your case of 18 months’ imprisonment which because of your early plea I reduced by six months making a total of 12 months. I suspend six months of that sentence for a period of two years on the usual conditions.
16. In relation to the possession of utensils in Count 2, I impose three months imprisonment concurrent.
17. For CR 185 of 2024, you further pleaded guilty to Count 4, being in possession of 0.09g of methamphetamine and Count 5, being in the unlawful possession of utensils.
18. In Count 4, I impose a sentence of 6 months imprisonment to be served cumulatively to Count 1 in CR 169 of 2024.
19. For Count 5, I impose a sentence of 3 months imprisonment concurrent to Count 4.
20. The upshot is that you will serve a total of 12 months’ imprisonment followed by a 6 months suspended sentence for 2 years on conditions.
    

CR 170 of 2024 Rex v Tokikupe Mesake

21. You have been convicted of being in possession of utensils in Count 8 for the use in connection with drugs. You also have a history of offending but not in drugs related matters.
22. In your case and I am prepared to be merciful and will give you a suspended sentence. I impose a sentence of six months fully suspended for 2 years on conditions.
    

CR 172 & 203 of 2024 Rex v ‘Ilaisaane Kolo

23. For CR 172 of 2024, you pleaded guilty to Count 6 for the unlawful possession of utensils, I impose a sentence 6 months imprisonment.
24. You have a bad record for dishonestly taking the property of others and you were recently before the Magistrate Court [Mag. CR 66/24] for being in unlawful possession of utensils on 27 March 2024. In that matter, you were given a suspended sentence of 6 months suspended for one year. That sentence must now be activated to be served cumulatively to your sentence in CR 172 of 2024.
25. You have further breached another suspended sentence in [Mag. CR 18/23] where you were sentenced to 8 months imprisonment with the last 2 months suspended for a year on conditions. Having regard to the principle of totality, I activate this 2 month suspended sentence to be served concurrently to the activated suspended sentence in [Mag. CR 66/24].
26. For CR 203 of 2024, you pleaded guilty in the Magistrate Court to the unlawful the possession of 0.49g of methamphetamine [Mag. CR 505/2024], 0.06g of cannabis [Mag. CR 504/24] and the unlawful possession of utensils being 19 empty packs [Mag. CR 485/24].
27. In your case, I am also prepared to be merciful and I impose on each Count, the following, For the possession of methamphetamine, 9 months. For Possession of cannabis, 6 months and for the possession of utensils, 3 months. This sentence is to be served concurrently to Count 6 in CR 172 of 2024.
28. The upshot is you will serve a total of 12 months imprisonments for all your matters before me today, and I further suspend the last 3 months for a period of two years on conditions.
    

FINAL RESULT

CR 169 & 185 of 2024 – Rex v ‘Ofa Tongia

29. For CR 169 of 2024, in Count 1 I impose a sentence of 12 months’ imprisonment with the last 6 months suspended for two years on conditions.
30. In Count 2, I impose a sentence of 3 months imprisonment to be served concurrently to Count 1.
31. For CR 185 of 2024, in Count 4, I impose a sentence of 6 months imprisonment to be served cumulatively to Count 1 in CR 169 of 2024.
32. In Count 5, I impose a sentence of 6 months imprisonment to be served concurrent to Count 4.
33. The upshot is, you will serve a total of 18 months’ imprisonment with the last 6 months of that sentence for 2 years on the following conditions:
    1. You must not commit any further offence punishable by imprisonment.
    2. You must report to the Probation Office within 48 hours of your release from custody.
    100. You must be placed on probation for the duration of your suspension period.
    4. You must live where directed by the probation officer.
    5. You must complete a course on drug awareness at the direction of the Probation Officer.
34. For the avoidance of doubt, the Accused will serve 12 months’ imprisonment, followed by a 6 month suspended sentence on the conditions mentioned for 2 years.
    

CR 170 of 2024 – Rex v Tokilupe Mesake

35. For Count 8, I impose a sentence of 6 months imprisonment fully suspended for 2 years on the following conditions:
    1. You must not commit any further offence punishable by imprisonment.
    2. You must be placed on probation for the duration of your suspension period.
    100. You must live where directed by the probation officer.
    4. You must complete a course on drug awareness at the direction of the Probation Officer within 12 months.
       

CR 172 & 203 of 2024 Rex v ‘Ilaisaane Kolo

36. For CR 172 of 2024, in Count 6 I impose a sentence of 6 months imprisonment.
37. I activate your suspended sentence in [Mag. CR 18/23] and [Mag. CR 66/24] of 2 months and 6 months to be served concurrently to each other and cumulatively to Count 6 in CR 172 of 2024.
38. For CR 203 of 2024, possession of 0.49g of methamphetamine [Mag. CR 505/2024] I impose a sentence 9 months, 0.06g of cannabis [Mag. CR 504/24] 6 months and the unlawful possession of utensils 19 empty packs [Mag. CR 485/24] 3 months. The latter two charges are to be served concurrent to the 9 months for possession of methamphetamine.
39. The total sentence in CR 203 of 2024 is to be served concurrent to the combined sentence in CR 172 of 2024 and the activation of the suspended sentences.
40. The upshot is, you will serve a total of 12 months’ imprisonment in which I suspend the last 3 months on the following conditions;
    1. You must not commit any further offence punishable by imprisonment.
    2. You must report to the Probation Office within 48 hours of your release from custody.
    100. You must be placed on probation for the duration of your suspension period.
    4. You must live where directed by the probation officer.
    5. You must complete a course on drug awareness at the direction of the Probation Officer.
       

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
9 December 2024