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R v Havea [2025] TOSC 60; CR 54 of 2025 (22 July 2025)

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

CR 54 of 2025

REX
-v-
‘Aisea Pese HAVEA

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
To: Mr. J. Lutui DPP for the Prosecution
The Defendant
Date: 22 July, 2025

The proceedings

1. On 20 May 2025, the Defendant pleaded guilty to the following charges:

Count 1 – cultivation of an illicit drug when he knowingly without lawful excuse cultivated 3 cannabis plants, a class B illicit drug weighing 2300 grams.

Count 2 – possession of an illicit drug, when he knowing and without lawful excuse had in his possession, 2.11 grams of cannabis, a Class B illicit drug.

Count 3 – possession of a utensil, when he knowingly without lawful excuse, had in his possession a home-made bong used for smoking illicit drugs.

Count 4– possession of ammunition without a licence, when he was found in possession of four .22 bullets without a licence.

The offending

2. On or about 11 February 2025, the Police received a report that a student from Tonga College was found with cannabis leaves.
3. The Police attended the school at around 4:30pm that day. The student was one Salesi Fangaake (referred to hereafter as “Salesi"). When the police arrived, Salesi was with the Deputy Principal, Solo Lemoto. Salesi volunteered that he picked the cannabis leaves from a taro plantation behind their home at Ha’ateiho. The taro plantation was on their neighbor, Joe Masima's (referred to hereafter as “Joe”) allotment.
4. The Drugs Squad headed to Joe's home. Joe and his wife Heu'ifanga were at home with the Defendant.
5. The taro plantation was at the back of the couple’s home. Joe took the Police to the backyard and the taro plantation. Next to the plantation was a little shelter. Inside the shelter, they saw the Defendant lying on a bed. The Police spotted 3 plants in the taro plantation that resembled cannabis plants.
6. Police Officer Feinga told the Defendant, they were police officers and were there in relation to suspected illicit drugs. The Defendant was told that a search will be conducted under s.24 of the Illicit Drugs Control Act and was cautioned of his rights to remain silent.
7. The Defendant was taken into the taro plantation where the three offending plants were. The Defendant was asked whether he knew what plants they were and who they belonged to. The Defendant told Officer Feinga that they were marijuana plants and they were his. The Defendant was notified he will be charged with cultivation of illicit drugs.
8. A search of the Defendant’s shelter uncovered cannabis leaves inside a shoe and a home-made bong beside the Defendant’s bed. On the ceiling, Officer Tafea found a plastic bag with four .22 bullets inside. The Defendant admitted the leaves, home-made bong and bullets were his. The Defendant was informed that he would be charged with possession of the said illicit drugs, utensils and ammunition without a licence.
9. The Defendant exercised his right to remain silent.
10. On 24 February 2025, the cannabis exhibits were tested by Officer Leveni and the 3 plants and leaves found inside the shoe all tested positive for cannabis. The plants weighed 2.3 kilograms and the leaves weighed 2.11 grams.
11. On 13 March 2025, the ammunition was examined by Officer 'Eliki Tomu to be in good conditions for use. The Defendant held no licence for the .22 bullets.

Crown’s submissions

12. The Crown submitted the aggravating features were:
    1. the substantial weight of the cannabis plants cultivated;
    2. cannabis, and illicit drugs in general, are an issue for society;
    100. the total disregard to exposing children to illicit drugs when cultivating it at the

home;

4. the Defendant is not young; and
5. the Defendant is not a first-time offender.

13. The Crown submitted the mitigating features were;
    1. the early guilty plea;
    2. lack of relevant previous convictions; and
    100. co-operation with the Police.

Crown’s Position on Sentencing

14. The Crown referred the court to the following comparable sentences:

Cases relating to Possession/Cultivation of Cannabis in the quantity of more than 28 grams

1. Rex v Wolfgram CR35/2020 – the defendant was charged with cultivation of cannabis plants weighing 99.6 kgs, possession of illicit drugs being, cannabis seeds and leaves amounting to 22.57grams, and possession of 26 rounds of ammunition without a licence. This was considered a large-scale operation for commercial purposes. A starting point of 6 years was fixed and reduced to 4 years and 6 months in mitigation. For possession of 22.57 grams of cannabis a sentence of 9 months imprisonment was imposed.
2. Rex v Siliva’ai Huni CR135-136, 139-142/2017) – the defendant was charged with others for cultivation and possession of illicit drugs, namely 3,984 plants weighing approximately 1.7 kilograms and possession of unlicensed firearms and ammunition. A starting point of 5 years was fixed and lifted by 9 months for the presence of firearm and ammunition. This was discounted by 4 months in consideration of the ill health of his son.

100. Vea v R [2004] TO Law Rp 28 – the Court of Appeal in this case referred to the approach in sentencing for cannabis offences set out in R v Terewi [199] NZCA 92;[1999] NZCA 92; [1999] 3 NZLR 62 where the following guidelines on starting points were identified:

i) small quantities for personal use – non custodial sentences

ii) small scale commercial purposes- 2 to 4 years

iii) large scale commercial purposes – 4 years or more.

The Defendant was convicted for possession and grown Indian hemp amounting to 20 branches and 125 seeds and 1 joint. While on bail, he was found with an additional 8 plants, dried branches and leaves. The Court of Appeal considered the circumstances amounted to a small scale commercial operation where the starting point should not have exceeded 4 years. It reduced the starting point to 2 years and 9 months with all other counts to be served concurrently. A period of 18 months was suspended and the Defendant was to serve 1 year and 3 months imprisonment.

Cases relating to possession of cannabis of less than 1 gram

4. R v Vaka’uta CR179/2024- The Accused was charged with five counts of illicit drugs offences. Counts 2 and 3 were for possession of 0.42 grams and 0.32 grams respectively. Three months imprisonment was imposed for each of those counts.
5. R v Tu’ifua & Anor CR109-110/2021- The two Accused persons, Sofia Tasa Tu'ifua and 'Isileli Tu'ifua pleaded guilty to possession of methamphetamine and possession of 0.58 grams of cannabis. A sentence of 6 months imprisonment was imposed and fully suspended.

Cases relating to unlawful possession of utensils

6. R v Tupou CR56/2024- The Accused pleaded guilty to unlawful possession of utensils namely one smoking pipe and one bong. A starting point of 12 months imprisonment was fixed, reduced to 9 months in mitigation and fully suspended on conditions including 80 hours of community service. 
7. R v ‘Emeline Haisila CR22/2022- The Accused pleaded guilty to possession of illicit drugs and possession of utensils, contrary to section 4(1)(a)(v) and 5A of the Illicit Drugs Control Act. The utensils were 766 empty dealer packs, test tube containing fragments of methamphetamine, notebooks of suspected records of drug purchases and supplies, two weighing scales, two straws and $150. A starting point of 12 months imprisonment was fixed reduced by 2 months in mitigation resulting in 10 months imprisonment, to be served concurrent to the head count.

Cases related to Possession of ammunitions without a license

8. Rex v Fa’uhiva CR VAV- 9 of 2025- The Accused pleaded guilty to: Count 1 possession of arms without a license; Count 2 possession of ammunition without a licence, four .22 calibre bullet; Count 3 possession of utensils; and Count 4 possession of illicit drugs. The Accused was sentenced to 12 months' imprisonment for Count 2 and to be served concurrent to Count 1. The sentence was fully suspended in its entirety for a period of 3 years on conditions.
9. Rex v Vaha Afeimo’unga CR186/2023- The Accused pleaded guilty to one count of possession of a firearm (.22 rifle) without a licence and one count of possession of ammunition (six 22 ammunition) without a licence. A starting point of 12 months’ imprisonment was fixed for Count 2 reduced by 6 months in mitigation, resulting in a final sentence of 6 months imprisonment for that count. 

15. The Crown’s proposed sentencing formulation were:
    1. A starting point between 4 – 5 years imprisonment for count 1, 2 – 3 months for count 2, 12 to 15 months for count 3 and 12 to 18 months for count 4.
    2. In mitigation, a discount of 18 months was proposed for count 1, resulting in a final sentence of 3 ½ years imprisonment, a discount of 2 months for count 2, resulting in a final sentence of 4 months, a discount of 5 months in respect of count 3 resulting in a final sentence of 10 months and a discount of 6 months in respect of count 4, resulting in a final sentence of 12 months imprisonment.
    100. It was suggested for counts, 2, 3 and 4 to be served concurrent to count 1.
    4. As the Defendant had committed this offending in breach of conditions of a suspended sentence, it was submitted that the suspended 6 months in that previous sentence be activated to be served together with this instant sentence with 9 months to be suspended for a period of 2 years on conditions.

Pre-sentencing report

16. The Defendant is 42 and is from Ha’ateiho, Tongatapu. He is said to have been raised in a stable family of which he is the youngest of 13 siblings. He is now divorced and lives with his 3 daughters who are 23, 20 and 15 with Joe and Heuifanga. He is said to be the sole breadwinner.
17. He attended Liahona College but dropped out after 4^th form. He is healthy and a member of the LDS church.
18. It was reported he was deeply remorseful and regret his actions. The Probation officer reported that he was capable of changing if given the opportunity and recommended he attend the Alcohol and Drug Abuse Course with the Salvation Army as part of his sentence.

Starting Point

19. The maximum statutory penalty for each count are as follows:

Count 1 – a fine not exceeding $50,000 or 7 years imprisonment or both,

Count 2 – a fine not exceeding $5,000 or 1 year imprisonment or both,

Count 3- a fine not exceeding $10,000 or 3 years imprisonment or both, and

Count 4 – 5 years’ imprisonment.

20. Clearly, count 1 is the headcount and I do not accept that the 3 offending plants involved weighing over 2 kilograms were for the Defendant’s personal use. I consider the offending falls within the lower end for a small scale commercial purpose.
21. Having regard to the relevant maximum statutory penalties here, the seriousness of the offending, the comparable sentences mentioned by the Prosecution only as a guideline, as each case must be dealt with in accordance with its specific facts, the principles of punishment, the need to denounce and protect the youth and society from the spread and normalisation of the cultivation, supply and use of illicit drugs, the need for specific and general deterrence I fix the following starting points:

Count 1- 2 years’ imprisonment

Count 2- 15 months imprisonment

Count 3- 12 months imprisonment

Count 4- 12 months imprisonment

22. The Defendant is entitled to some discount in light of his early guilty plea and cooperation with the police. The starting points are reduced accordingly:

Count 1 – 18 months imprisonment

Count 2 – 11 months imprisonment

Count 3 – 9 months imprisonment

Count 4 – 9 months imprisonment

Counts 2, 3 and 4 shall be served concurrent to Count 1.

23. On 22 April, 2022, the Defendant was sentenced to 2 years’ imprisonment in CR 136 of 2021 with the final 6 months suspended for a period of 2 years. According to the Prosecution the Defendant was released on 4 September, 2023 from which the two year suspension commenced and will end in September, 2025.
24. On that account this offending is in breach of the condition of his prior sentence in that he was not to commit any offence punishable by imprisonment and the suspended 6 months from that sentence is activated and added on this sentence, resulting in a total of 2 years’ imprisonment.
25. The Defendant is not young and has breached the conditions of a suspended sentence. I have read the references provided together with the Pre-sentencing report from the Probation Services. While being mindful of authorities that do not consider personal circumstances relevant when sentencing for drug offending and/or any suspension unless there are good reasons behind rehabilitation, I suspend the final 4 months of his sentence as a last opportunity for rehabilitation. The Defendant is cautioned that the court will be justified in refusing any suspension on any future offending.

Result

26. The Defendant is convicted and sentenced for:

Count 1 – cultivation of an illicit drug and sentenced to 18 months imprisonment,

Count 2 – possession of an illicit drug and sentenced to 11 months imprisonment,

Count 3 – possession of a utensil and sentenced to 9 months imprisonment, and

Count 4– possession of ammunition without a licence and sentenced to 9 months imprisonment.

27. The sentences imposed for Counts 2, 3 and 4 shall be served concurrent to Count 1.
28. The 6 months suspended in CR 136 of 2021 is activated and added onto Count 1 resulting in an aggregate sentence of 2 years’ imprisonment with the final 4 months suspended for a period of 2 years on the conditions that during the period of suspension the Defendant is to:
    1. not commit any offences punishable by imprisonment;
    2. be placed on probation;
    100. not consume alcohol or illicit drugs; and
    4. complete a course on alcohol and drug awareness as directed by his Probation officer.
29. In the result, and subject to those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 1 year and 8 months in prison.
30. I also order that:
    1. the illicit drugs and utensil subject of this proceeding be destroyed pursuant to s.32 of the Illicit Drugs Control Act; and
    2. the ammunition subject of this proceeding, be forfeited to the Tonga Police, pursuant to s. 37 of the Arms and Ammunition Act.
       

P. Tupou KC
JUDGE

Nuku’alofa: 22 July, 2025