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R v Masila [2025] TOSC 59; CR 229 of 2024 (16 July 2025)

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

CR 229 to 230 of 2024

BETWEEN:
REX
-Prosecution

AND:
[1] KULISITOFA MASILA
[2] PAEA KOLOTAU
- Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Ms M Lenati for the Crown Prosecution
The Defendants in Person
Date: 16 July 2025

1. THE CHARGES & BACKGROUND

1. The Defendants are charged with the following charges:

Kulisitofa Masila

1. Count 1: Possession of an Illicit Drug (7.06g of methamphetamine), contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act.
2. Count 3: Destruction of Evidence (stepped on a smoking pipe and smashed it), contrary to section 37A(1) of the Illicit Drugs Control Act.

Paea Kolotau

100. Count 2: Destruction of Evidence (threw a smoking pipe and broke it), contrary to section 37A(1) of the Illicit Drugs Control Act.

2. I will refer to you two as Masila and Paea respectfully, no disrespect is intended.
3. On 9 June 2025 when trial for this matter alongside a third accused was set to proceed, all Defendants were rearraigned. This resulted in Moala Ikani, the third co-accused and you Kolotau being discharged in Count 1.
4. Sentencing directions were ordered, and I now proceed to sentence you Masila in relation to Count 1 and 3, and you Kolotau on Count 2.
   
   2. CROWN SENTENCING SUBMISSIONS
5. On 15 July 2025, Crown filed sentencing submissions to assist the Court.
6. Mitigating and aggravating features were filed in relation to each Defendant along with the following case law in support:
   1. Rex v Hafoka CR 205/2019
   2. R v Mateni CR213/2020
   100. R v Latu CR 109/2017
   4. Rex v Pole’o [2021] TOSC 182
7. Crown recommend the following sentence for each of you:

Kulisitofa Masila

1. Count 1: 3 years and 6 months imprisonment with the last 6 months suspended for 2 years on conditions.
2. Count 3: 12 months imprisonment concurrent to Count 1.

Paea Kolotau

100. Count 2: 12 months’ imprisonment with the last 6 months suspended for 2 years on conditions

8. It is further submitted for you Paea, for your suspended sentence in CR 153/2023 of 6 months is activated to be served cumulatively to this sentence.
   
   100. DISCUSSION

1. Background

9. On or about 1 August 2024, acting on reliable information about the selling of Illicit Drugs, officers arrived at a residence to investigate. When they entered the residence, you Paea were holding a smoking pipe which you then threw, and it cracked. Subsequently, you Masila then stepped on that same pipe smashing it.
10. A phone was seized from you Masila where I am told there were numerous messages in relation to the selling of methamphetamine. Further, there was a black bag found in the living room with 2 packs of white substances inside and a box that you Masila were sitting beside which contained a further 3 packs of white substances.
11. These substances were tested and confirmed to be methamphetamine to the total weight set out in Count 1.
12. In both of your cases there are a number of aggravating features not only was the amount of the drugs involved substantial but you both have previous convictions albeit not for drugs related offences for you Masila.
13. In your case Paea you have previous convictions including one for involvement in a drugs offence.
14. Both of you pleaded guilty but only on the date of the trial.
15. I have read the references given by church authorities on behalf of each of you together with the Presentence Reports that was filed from the Probation Office and take into account the fact that you are well thought of in your community, however you have to be taught a lesson because methamphetamine is destroying this Country and must be stamped out.
    
    2. Starting Point
16. I have given careful consideration to the comparable cases helpfully provided by the prosecution but of course each case must be decided on its own facts.
17. For you Masila, in Count 1 which you solely now face, I impose a starting point of 4 years imprisonment. In view of your guilty plea, I deduct 6 months leaving a final sentence of 3 years and 6 months imprisonment.
18. I consider the Count 2 and 3 respectively the throwing of the smoking pipe and subsequent smashing it was so closely connected with the possession count that I impose a sentence of 12 months imprisonment, for you Masila this is to be served concurrently with the sentence in Count 1 of possession.
19. I deduct 6 months from these Counts for each of you in light of your guilty plea.
20. I have considered the question of suspension in each of your cases although neither of you were young and you have been known to the police albeit in your case Masila not for drugs and there is some prospect of rehabilitation.
21. For you Masila, I suspend the last 12 months of your sentence in Count 1 for a period of 2 years on conditions.
22. For you Paea, I am told that you were given a suspended sentence in which you have breached in committing this offence. You were warned at the time that any offending during the suspended period would result in the
23. That sentence must therefore also be activated and served cumulatively. No suspension is applicable here for you Kolotau.
    4. FINAL RESULT

Kulisitofa Masila

24. For Count 1: 3 years and 6 months imprisonment with the last 12 months suspended 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 24 hours of your release from custody
    100. You must live where directed by the Probation Officer
25. For Count 3: 6 months imprisonment concurrent to Count 1.
26. You will serve a total imprisonment of 2 ½ years imprisonment, followed by a suspended sentence of 12 months on conditions for 2 years.

Paea Kolotau

27. For Count 2: 6 months imprisonment.
28. I further activate your suspended sentence of 6 months in CR153/2023 to be served consecutively to the sentence I have just imposed.
29. For the avoidance of doubt, you will serve a total of 12 months imprisonment.
30. I further order the destruction of all illicit drugs in these proceedings pursuant to section 32(2)(b) of the Illicit Drugs Control Act.