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R v Kupu [2025] TOSC 85; CR 134 of 2025 (4 December 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 134 of 2025

REX
-v-
SIOKATAME ‘OTUNUKU KUPU

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
To: Mr L. Vaea for Prosecution
The Defendant
Date: 4 December, 2025

The proceedings

1. On 08 October, 2025, the Defendant pleaded guilty to one count of possession of utensils, being 1 smoking pipe, 1 straw and 2 empty packs used for smoking and packing illicit drugs, contrary to s. 5A of the Illicit Drugs Control Act.

The offending

2. In the evening of 1 May, 2025, the police were alerted that illicit drugs were being sold from a residence at Matangiake belonging to one ‘Atama ‘Onitai ‘Amani Piukala (referred to hereafter as “Atama”). The police responded to the call. While the police were at ‘Atama’s residence, the several vehicles arrived. In one of those vehicles, the Defendant was found seated at the back of the vehicle holding a smoking pipe. One straw and 2 empty packets were found beside him. The Defendant denied any knowledge of the utensils.

Crown’s submissions

3. I have taken into account the Crown’s submissions on the aggravating and mitigating features of the offending. The Crown referred me to the following comparable cases:
   1. Rex v Mailelua [2024] CR 128 of 2024 - the Defendant was sentenced amongst other drug related offendings for one count of possession of 1 smoking pipe and subsequently, for an additional count for possession of 1 smoking pipe, 4 empty packs and 2 half-empty packs. For the 1 smoking pipe, the Defendant was sentenced to 1 month imprisonment. For the latter charges, a starting point of 3 months imprisonment was imposed and uplifted by 6 months for breaching his bail. A deduction of 3 months in mitigation meant a final sentence of 6 months imprisonment. The two sentences were to be served consecutively.
   2. Rex v Sione ‘Ala [2023] CR 111 & 113of 2023- the Defendant was sentenced after pleading guilty to drug related offendings including one count of possession of straws and empty packs and a second count of possession of a test tube, straw, scales and 48 empty packs. For the first offending, a starting point of 6 months imprisonment was imposed with a deduction of 2 months in mitigation resulting in a final sentence of 4 months imprisonment. For the second offending, a starting point of 12 months was imposed with a deduction of 4 months in mitigation, leaving a final sentence of 8 months imprisonment.
   100. Rex v Kalisitiane& Halangahu [2023] CR 101 & 104 of 2023 – Kalisitiane was sentenced after pleading guilty to other drug related offences including possession of 1 empty pack and 1 straw. He was sentenced to 6 months imprisonment. Halangahu was sentenced for possession of 1 bong, 1 straw and 3 empty packs. A starting point of 6 months imprisonment was imposed with a deduction of 1 month in mitigation, resulting in a final sentence of 5 months imprisonment. The sentence was fully suspended for 12 months on conditions.
4. Here, the Crown proposes a starting point of 12 months imprisonment to be reduced by 4 months in mitigation resulting in a final sentence of 8 months imprisonment with the final 2 months to be suspended for 1 year on conditions.
   

Defendant’s submission

5. The Defendant in a letter dated 28 November, 2025 communicated he had received the Crown’s sentencing submissions and seeks for the totality of the proposed sentence of 8 months to be made concurrent to the sentence he is presently serving which will be completed on 7 January, 2026 or be fully suspended. The Defendant conveyed his remorse and emphasised his need to fulfil his duties to his elderly mother and young family.
   

Pre-sentencing report

6. The Defendant is 28. He is reported to have grown up in a good family at Sopy before moving to Hauloto in 2017. He has resided there since. The Defendant completed 5^th form at Liahona High School. He enrolled at the ‘Unuaki ‘o Tonga Institute for a few months and then quit. He is said not to be involved with church or community activities.
7. He was found to be suffering from heart problems in early childhood where he was receiving medical treatment via injections every 2 weeks. He no longer attends to receive that treatment. He is a smoker and consumes alcohol and is said to be addicted to drugs.
8. He is raising a family of 5 children with his partner, Alopa who acknowledges that the Defendant has drug problems and is serving time in prison for it. His family depends on the sale of his crops for a living.
9. In respect of the offending, the Defendant took full responsibility for his actions. He admitted he went to ‘Atama’s house to purchase illicit drugs for his personal use.
10. The author of the report considers the Defendant at “high risk” of re-offending in view of his drug addiction, recidivism and lack of involvement in church and the community. Accordingly, a partially suspended sentence on conditions was recommended including the completion of a course to counter his drug abuse.
    

Considerations

11. The maximum statutory penalty for unlawful possession of utensils is a fine not exceeding $10,000 or imprisonment for a term not exceeding 3 years or both.
12. Having regard to maximum statutory penalty, the parties submissions, the comparable sentences, the sentencing principles of punishment, personal and general deterrence, I set a starting point of 12 months imprisonment.

Mitigation

13. For his early guilty plea I reduce the starting point by 4 months leaving a final sentence of 8 months imprisonment.

Suspension

14. The principles for suspending a sentence as set out in Mounga v R^[1] favour the defendant only in that he is 28 years old. He, at first instance denied any knowledge of the utensils, he is a recidivist that had not taken the opportunity offered by a previous suspended sentences to rehabilitate himself and is currently facing that consequence by serving the suspended sentence in that matter. However, I accept that for his expressed remorse and age, he is entitled to part of the sentence being suspended. I accordingly suspend the final 2 months of his sentence as suggested by the Crown.
    

Concurrent or Consecutive

15. I turn to the Defendant’s plea for this sentence to be made concurrent to the sentence he is currently serving. He indicated his release date would be 7 January, 2026. This morning I am informed that he has already been released. Unfortunately, although the offences here are similar in nature, they do not arise from the same incident, time or circumstance. This offence is distinct in time, place and circumstance. To make this sentence concurrent will not reflect the criminality of this offence and will grant the Defendant an “underserved, uncovenanted bonus which would be contrary to the public interest”^[2] and therefore inappropriate under the circumstances.
    

Result

16. Siokatame Otunuku Kupu is convicted for possession of 1 smoking pipe, 1 straw and 2 empty packs being utensils used for smoking and packing illicit drugs. He is sentenced to 8 months imprisonment with the final 2 months suspended for a period of 12 months on the following conditions, namely, that during the said period of suspension, Mr Kupu is to:
    1. not commit any offence punishable by imprisonment;
    2. report to the probation office within 48 hours of his release from prison;
    100. be placed on probation; and
    4. complete a drug awareness course with the Salvation Army.
17. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
18. Subject to compliance with those conditions, and any remissions, the result is that the defendant is required to serve 6 months’ imprisonment at the end of the sentence he is currently serving.
19. Pursuant to s.32 of the Illicit Drugs Control Act, the utensils seized in these proceedings are to be destroyed.
    

P. Tupou KC

Nuku’alofa: 4 December, 2025 J U D G E

^[1] [1998] Tonga LR 154

^[2] Treacy LJ in McClean[2017] EWCA Crim 170