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R v Satini [2024] TOSC 94; CR 62 & 64 of 2024 (13 December 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 62 & 64 of 2024

REX

-v-

1. HARRIS SATINI

3. SAIA TUFUI

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances: Mr. J. Lutui DPP and Mr. ‘A. Fisi’iahi for Prosecution
Defendants in persons
Date: 13 December, 2024.

The charges

1. On 25 October 2024, the First Defendant, Harris Satini (“Harris”) was found guilty on one count of possession of an illicit drug contrary to section 4(1) (a) (iv) of the Illicit Drugs Control Act, one count of possession of an illicit drug contrary to section 4(1) (a) (i) of the same Act and one count of possession of utensils contrary to section 5A of the same Act.
2. On even date, the Third Defendant, Saia Tufui (“Saia”) was also found guilty on one count of Possession of an illicit drug contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act.

The Offending

3. For the purposes of these remarks I will refer to the facts briefly. The verdict issued on 25 October, 2024 provides the full text of the findings of facts in this matter.

Harris Satini

4. On Sunday 27 August, 2023 at around 8pm, information was received by the police that Harris was selling drugs in Vaini. He was using two vehicles, that is, his own white land rover and a red car owned by one Afu.
5. The police acted on the information and dispatched to Vaini. At Afu’s residence, they encountered Harris attempting to reverse out of that home in Afu’s red car.
6. He was immediately detained by police. Harris had a red bag strapped around his waist at the time. Inside the bag was 1 large pack containing a white substance that was weighed at 10.64g and tested positive for methamphetamine.
7. A body search of him uncovered in his left trouser pocket 2 packs of a plant substance which tested positive for cannabis and 8 fifty dollar bills. In his right trouser pocked was found 1 smoking pipe and 1 lighter, plus 4 twenty seniti and 1 ten seniti.
8. A search of the vehicle he was in when the police arrived, uncovered 1 smoking pipe between the front seats. During the search of his own vehicle with licence plate L-21913, the police found 1 large sized pack containing shreds of plant material and a $20 bill in the compartment beside the steering wheel. In the compartment in between the front seats was 1 silver weighing scale; beneath the hand brakes were 31 empty packs and in the back pouch of the front passenger seat were 2 smoking pipes. The total weight of the cannabis found in the possession of Harris was 8.40g.
9. The utensils found in his possession were; 1 weighing scale, 2 smoking pipes, 1 straw and 38 empty packs.
10. A search of his home which had been swept and cleaned by Saia did not locate any offending material.

Saia Tufui

11. The police found Saia at Harris’s house. Nothing was found on Tufui after a body search. However, inside the cover of his phone was plant material weighing 0.15g and tested positive for cannabis. When he was asked about the plant material by the police he admitted it was his “pongo”.

Previous Convictions

12. Harris has previous convictions 4 of which are drug related offences. Saia has one previous conviction for trespass where the penalty imposed was a reprimand.

Crown’s Submissions

Harris Satini

13. The Crown submitted the aggravating factors against Harris to be; the amount of methamphetamine found in his possession; his previous related convictions; the presence of equipment demonstrating he was involved in the supply of the said drugs and breaching conditions of bail while awaiting trial. The Crown was of the view that there was no mitigating factor in his favour.

Saia Tufui

14. The Crown submitted his previous conviction was an aggravating factor. The factors going for him were: a) his previous conviction was not drug related; and b) his cooperation with the police.

15. The Crown referred me to the following comparable sentences:

1. R v ‘Amusia Mateni CR 213/2020 – here, the defendant pleaded guilty after the first day of trial. The amount of methamphetamine involved was 8.08 grams. A starting point of 4 years was set reduced by 6 months for lack of similar offending, resulting in a final sentence of 3 ½ years of imprisonment.
2. R v Motuku Kafalava & ORS CR 26, 38/2022 – both defendants in this case were charged for possession of 12.09 grams of methamphetamine and utensils. A starting point of 4 ½ years’ imprisonment was set with a total final sentence of 47 months for Mr. Kafalava and 63 months for his co-defendant.

100. Rex v Siu Holani CR 87/2022 – the defendant pleaded guilty to possession of 1.68 grams of methamphetamine and 5.57 grams of cannabis. A starting point of 18 months imprisonment was set and lifted by 6 months for his previous criminal records. For the methamphetamine charge, a final sentence of 21 months was imposed with the final 12 months suspended on conditions. For the cannabis charge, a final sentence of 1 year imprisonment was to be served concurrently with the methamphetamine charge.

4. R v Manuofetoa [2024] TOSC 17, Unreported, CR 147/2023- the defendant was found guilty after trial for possession of 0.41 grams of cannabis. The Accused had previous convictions. He was sentenced to 5 ½ months imprisonment.
5. R v Malakai Fonua CR 89/2023- the defendant pleaded guilty to 2 counts of possession of an illicit drug and 1 count of possession of utensils. A sentence of 9 months imprisonment for the possession of 38 empty packs and 1 weighing scale to be served concurrent to the head sentence was imposed.
   

Crown’s Proposed Sentence

Harris Satini

16. The Crown proposed the headcount to be Count 1 and an appropriate starting point to be 5 years imprisonment. For count 2, 8 months imprisonment and count 3, 12 months imprisonment to be served concurrent to the sentence for count 1. As there were no mitigating factors, it was suggested that no reduction was appropriate. Nothing in the guidelines for suspension in Mo’unga v R [1998] Tonga LR 154, favoured Harris and his criminal history indicate any suspension would be wasted.

Saia Tufui

17. The Crown proposed a sentence of 1 month imprisonment to be fully suspended on conditions. His cooperation with the police and lack of similar offending was relied on as basis for the proposed sentence.

Defendant’s submissions

18. Harris lodged a letter dated 22 November, 2024 where he submitted that he was no drug dealer. He informed that he was otherwise financially “well off” through freelancing contractual jobs in plumbing, carpentry, tiling, mechanics, engineering and sound system engineering. Further, his wife was earning an income of USD$94,378.00 per annum and was an independent contractor of specialized education services earning an extra USD$12,000 to USD$15,000 per annum.
19. For those reasons he proposed a fully suspended for a term of up to 3 to 4 years on conditions was the appropriate sentence with possibly a fine of TOP$10,000 - $15,000 within a year plus community service.
20. His wife, Mele Satini also submitted a letter dated 22 November, 2024 enclosing a copy of her employment contract and vouching her full support for her husband, financial and otherwise and pleaded for a suspended sentence.
21. A second letter dated 4 December, 2024 was submitted by Harris in his own handwriting in response to the Crown’s sentencing submissions. In that letter, he disputed the previous convictions as listed by the Crown, at least in terms of CR 457/1996 and a conviction in 2022 that was successfully appealed and quashed for possession of utensils and destruction of evidence. No evidence of the successful appeals was placed before me.
22. The balance of the second letter raises matters that were not raised during the trial including placing blame on a third party for setting him up.
    

Pre-sentencing report
Harris Satini

23. I received a 2 page report from the Probation Services office requesting that the court use a previous pre-sentencing report in case CR 227/2019. That report was not provided. The author of the report confirms he had been Harris’s probation officer for 2 of his previous convictions.
24. The officer stated that the defendant is a good person and a loving husband. In terms of his assessment and advice, he surprisingly offered none unless a fine was imposed as a condition, I am presuming, of a suspended sentence.

Saia Tufui

25. No pre-sentencing report was received for Saia.

Considerations
Harris Satini
26. The maximum penalty for:

1. Count 1 is a fine not exceeding $1million or imprisonment for any period not exceeding life or both;
2. Count 2 is a fine not exceeding $5000 or imprisonment for any period not exceeding 1 year or both;

100. Count 3 is a fine of $10,000 or imprisonment for any period not exceeding 3 years or both.

27. As submitted by the Crown, the most serious offence is count 1, being possession of 10.64 grams of methamphetamine.
28. This court, in line with a directive by Parliament in increasing the penalties under the Illicit Drug Control Act is required to take a robust stance in sentencing drug offences. In R v Hufanga [2021] TOSC 80 at [14] and [15], the Court said:

“The Court’s repeated stance on illicit drugs, particularly methamphetamines, and the approach taken to sentencing, may be summarized as follows:

(a) methamphetamine is a scourge to societies everywhere that has effected a great deal of harm and misery;

(b) the distribution and use of methamphetamine in Tonga is a significant government and community concern;

(c) in prescribing a maximum penalty of 30 years’ imprisonment (and now, for 1 gram of more, life imprisonment), the Legislature has expressed a clear intention that significant penalties are to be imposed;

(d) therefore, those involved with methamphetamine in any capacity, and even small amounts, can expect to receive custodial sentences.”

29. Therefore, having regard to the seriousness of the offending, the amount of drugs involved, the statutory maximum penalties, the comparable sentences and the principles referred to above, I set the following starting points, for:

a) count 1 - 4 years’ imprisonment;

b) count 2 - 8 months imprisonment;

c) count 3 - 12 months imprisonment; and

d) counts 2 and 3 are to be served concurrent to count 1.

30. I have taken into consideration the letters Harris and his wife submitted. In terms of the points raised about previous cases that were allegedly successful on appeal, there was nothing to support those allegations. Having said that, in an appeal^[1] by Harris in CR 52-53 of 2022 for possession of utensils and destruction of evidence in relation to the commission of an offence the Lord Chief Justice Whitten KC, as he was then, after quashing and setting aside the decision below, said;

“The material before me does not support an acquittal by this Court. However, the number and nature of the errors below combined with the matters considered on the application by the Appellant to adduce fresh evidence all militate in favour of remitting the matter back to the Magistrates Court in its enhanced jurisdiction before a different Magistrate for a retrial.”

31. In regard to Harris’s second letter, the issues were not raised during the trial and it is simply untimely and irrelevant at this stage for the purposes of sentencing.
32. There is nothing to support a reduction or suspension of the sentences I have imposed.
33. The defendant is a recidivist, despite that he has previously been the recipient of the courts trust and leniency^[2] including a fully suspended sentence^[3]. While awaiting the trial of this matter he was granted bail on the condition that he was restricted to the confines of his home, a condition he suggested. He breached that condition and has since been remanded in custody.
34. To reduce or suspend any part of his sentence would be contrary to the principles and stance this court is required to take in these types of cases.
35. I also note the defendant’s objection to the reference in my judgment that he was a supplier. Under s.4(2)(a) and (b) of the Illicit Drugs Control Act, any person in possession of a class B drug in the quantity of 7 grams or more; or a class A drug in the quantity of 0.25 grams or more, such person shall be deemed to be supplying such class B or class A drugs.
36. Here, Harris was in possession of 10.64 grams of methamphetamine and 8.40 grams of cannabis and is deemed by law to be a supplier. However, it is fortuitous that he was not charged and therefore not tried as such.

Saia Tufui

37. The maximum penalty for count 8 is Count 2 is a fine not exceeding $5000 or imprisonment for any period not exceeding 1 year or both.
38. Saia was found at Harris’s house and admitted the cannabis found on the cover of his phone was his. Notwithstanding that he pleaded not guilty and took the matter to trial.
39. The Crown proposed a sentence of 1 month imprisonment to be fully suspended for his cooperation with the police, albeit limited and lack of previous conviction for similar offending.
40. Having regard to the seriousness of the offending, the amount of class B drugs involved, the statutory maximum penalties, the comparable sentences and the principles referred to above, I adopt the Crown’s proposed sentence of 1 month imprisonment and fully suspend it on conditions.

Result
41. Mr Harris Satini is convicted of:

1. Count 1 - possession of 10.64 grams of methamphetamine and sentenced to 4 years imprisonment;
2. Count 2- possession of 8. 04grams of cannabis and sentenced to 8 months imprisonment; and

c) Count 3 - possession of utensils and sentenced to 12 months imprisonment.
42. Counts 2 and 3 shall be served concurrent to count 1.

43. Harris is to be given credit for any time in custody on remand in respect of these proceedings.

44. Pursuant to:

(a) s 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 cash and other items seized are to be forfeited to the Crown.

45. Mr Saia Tufui is convicted of count 8- possession of 0.15grams of cannabis and sentenced to 1 month imprisonment to be suspended for a period of 12 months on the 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) live where directed by his probation officer;

4. attend courses in alcohol and drug awareness and life skills as directed by his probation officer; and
5. complete 40 hours of community service.

46. Pursuant to s. 32 of the Act, the drugs the subjects of these proceedings are to be destroyed.
47. Saia is advised that failure to comply with any of the above conditions may result in the suspension being rescinded in which case you will be required to serve this sentence.
    

P. Tupou KC
J U D G E
NUKU’ALOFA: 13 December, 2024

^[1] AM 11 of 2022
^[2] R v Satini [2021] TOSC 85, (CR 7 of 2021)
^[3] R v Satini [2020] TOSC 106, (CR 227 of 2019)