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R v Pupu [2025] TOSC 86; CR 26 of 2025 (5 December 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 26 of 2025 & CR 585-587 of 2024


REX
-v-
TEVITA MOEAKI PUPU


SENTENCING REMARKS


BEFORE: HON. JUSTICE TUPOU KC
To: Mr J. Fifita for the Prosecution
The Defendant
Date: 5 December, 2025


The proceedings

  1. On 30 October, 2025, the Defendant changed plea and pleaded guilty to one count of possession illicit drugs, being 2.08 grams of methamphetamine, contrary to s.4(1)(a)(iv) of the Illicit Drugs Control Act, and one count of possession of illicit drugs, being 0.31grams of cannabis, contrary to s.4(1)(a)(i) of the Illicit Drugs Control Act.
  2. On 7 November, 2025, the Defendant before the Chief Police Magistrate Kuli also pleaded guilty to unlawful possession of 1 empty pack, a utensil used for packing illicit drugs contrary to s. 5A of the Illicit Drugs Control Act; possession of 0.02 grams of methamphetamine contrary to s.4(1)(a)(iv) of the Illicit Drugs Control Act and possession of 0.46 grams of cannabis contrary to s.4(1)(a)(i) of the Illicit Drugs Control Act. Those matters have been committed up for sentencing in this court together with the instant case.


The Offending

  1. In the evening of 7 November 2024, the Police received information that the Defendant was selling illicit drugs using his black vehicle with registration plate number C2771 and from his residence at ‘Utulau. The police responded and left for ‘Utulau.
  2. At Útulau, the police sighted the Defendant’s said vehicle turn into the road leading to his home. They followed him. As they arrived at the Defendant’s residence, he was seen standing outside his vehicle and then walking quickly towards the eastern side of his house whilst holding something that was covered with a black t-shirt.
  3. The police called out, but the Defendant ran to the back of the house. He was asked to stop, but he kept running and was seen discarding something that looked like a small bag.
  4. The police caught up to Defendant and after some struggle, he was detained. A black bag was retrieved from the back of the house. The Defendant was arrested and taken to the police station. On the way to the police station, the Defendant received calls on his phone (on speaker) from persons wanting to buy drugs from him.
  5. At the police station the black bag seized was inspected and was found to contain:

a) 17 packs of suspected methamphetamine;

b) 1 packet of green leaves;

c) a packet containing 2 packets of green leaves; and

d) $1,350 in cash.

  1. The content of the packets were tested with the following results:
    1. the content of 17 packets tested positive for methamphetamine and weighed 2.08 grams in total; and
    2. the content of the packets containing green leaves tested positive for cannabis and weighed 0.09grams and 0.22 grams.

Crown’s submissions

  1. The Crown suggested the aggravating features of the offending were:
    1. the significant amount of drugs in the Defendant’s possession deems him a supplier;
    2. the Defendant is a recidivist;
    1. this offending was committed while on bail for charges under CR 585-587 of 2024;
    1. did not cooperate with the police
  2. The Crown suggested the mitigating features as;
    1. the Defendant’s guilty plea, albeit late; and
    2. being on remand since 7 November, 2024.
  3. The Crown referred the court to the following relevant comparable sentences:
    1. Rex v Fiefia CR 131 of 2021 – the Defendant was sentenced for being in possession of 1.19 grams of methamphetamine and 4.27 grams of cannabis and utensils. A starting point of 12 months was imposed and reduced by 4 months in mitigation, resulting in a final sentence of 8 months imprisonment with no suspension.
    2. Rex v Haisini Fonohema- CR 71 of 2023 - the Defendant pleaded guilty to possession of 1.08 grams of methamphetamine and 0.08 grams of cannabis. A starting point of 16 months was imposed for the methamphetamine after a deduction of 2 months for his guilty plea. He was sentenced to 2 months for the cannabis to be served concurrently. The Defendant’s total sentence was 20 months (which included 4 months for assaulting a police officer to be served consecutively) with the final 6 months suspended for 2 years on conditions.
    1. Rex v Sakopo & Guttenbeil – CR 307-308 of 2020 – the Defendants pleaded guilty to possession of 2.26 grams of methamphetamine. They were both first time offenders. A starting point of 30 months imprisonment was imposed. Sakopo was a police officer at the time of the offending and the starting was to reflect that. In mitigation, 8 months was deducted leaving a final sentence of 22 months with the final 10 months suspended for 2 years on conditions.
    1. Rex v Kitione Finau – CR 33 of 2019 – the Defendant was sentenced for possession of .0.03 grams of methamphetamine to 4 months imprisonment and fully suspended.
    2. Rex v Motekiai Taufahema – CR 169 – 179 of 2021 – the Defendant was sentenced for possession of 0.01 grams of methamphetamine to 9 months imprisonment reduced to 4 months and fully suspended for 12 months on conditions.
    3. Rex v Mangisi- CR 10 of 2018- where the court adopted and applied the bands in Zhang v R [2019] NZCA 507 in imposing sentencing. The bands were:
      1. less than 5 grams – community to 4 years;
      2. less than 250 grams – 2-9 years;
      3. less than 500 grams – 6 – 12 years;
      4. less than 2 kilograms – 8 – 16 years;
      5. over 2 kilograms – 10 years to life.
  4. Here, the Crown proposed the most serious of the charges is Count 1 of the instant case, warranting a starting point of 18 months imprisonment to be uplifted to 24 months to reflect that the commission of this crime occurred while the Defendant was out on bail for CR 585-5878 of 2024 in breach the conditions of bail. In mitigation it was recommended for 6 months to be deducted, resulting in a final sentence of 18 months for count 1.
  5. For Count 2, a sentence of 3 months imprisonment was proposed to be served concurrent to Count 1.
  6. As for CR 585 – 587 of 2024, the more serious of the 3 is CR 586 and ought to be the head sentence. A starting point of 9 months imprisonment was proposed for the head sentence with a deduction of 3 months in mitigation, resulting in a final sentence of 6 months imprisonment. A sentence of 4 months imprisonment was suggested for CR 587 of 2024 and a sentence of 3 months imprisonment for CR 585 of 2024, both to be served concurrent to the sentence imposed in CR 586 of 2024.
  7. Given the charges in these two matters are distinct in time, place and circumstance, the Crown suggested the aggregate sentences of 24 months imprisonment be served consecutively.

Defendant’s submission

  1. The Defendant was invited to file any submissions he may wish to make by 2 December, 2024. I have not received anything to date.

Pre-sentencing report

  1. The Defendant is 36 and was raised in a family known at Ha’akame for their commitment to both the church and community. He was deported from New Zealand in 2016 for overstaying. While the rest of his family reside in New Zealand and his eldest sister remain in Tonga. He resides at Ha’akame at the family home with his partner and 3 children.
  2. He dropped out of school after completing 4th form and then attended ‘Apifo’ou college to play in that school’s senior grade rugby team in 2008. He told the probation officer about serving time in prison in 2008 and in 2018 for housebreaking and theft.
  3. He expressed remorse and willingness to face the consequences of his actions which he understood would include imprisonment.

Considerations

  1. It came to light this morning that the weight of the illicit drugs referred to in the Crown submissions were mistaken and therefore the sentencing submissions. I do not intend to delay this matter further or to prolong custody of the Defendant. I consider the Indictment, Summary of Facts and Crown’s indicative submissions filed on 28 February, 2025 as correct and will proceed with this sentencing now.
  2. 21. The maximum penalties for the relevant charges here are:
    1. possession of a Class A illicit drug exceeding 1 gram, is a fine not exceeding $1,000,000 or imprisonment for any period not exceeding life or both;
    2. possession of a Class B illicit drug less tha 28 grams is a fine not exceeding $5,000 or imprisonment for a term not exceeding 1 year or both; and
    1. possession of utensils is a fine not exceeding $10,000 or imprisonment for any period not exceeding 3 years or both.
  3. Here the amounts involved in the instant case is 2.08 grams of methamphetamine and 0.31grams of cannabis. CR 586 involve 0.02 grams of methamphetamine. CR 587 involve 0.46 grams of cannabis and CR 585 is in regards to a utensil, i.e one empty pack.
  4. Having regard to maximum statutory penalty, the submissions, the comparable sentences, the pre-sentencing report, the sentencing principles of punishment, personal and general deterrence, I set a starting point of 24 months imprisonment for count 1. This starting point is uplifted by 6 months to reflect the commission of this offending whilst the Defendant was out on bail for the charges committed up from the Magistrates Court, resulting in a final starting point of 30 months imprisonment.
  5. For his guilty plea, albeit late, I deduct 6 months, resulting in a final sentence of 24 months imprisonment.
  6. For count 2 I impose a sentence of 6 months imprisonment and reduce it by 2 months, resulting in a final sentence of 4 months to be served concurrent to count 1.
  7. I further accept the proposed 6 months imprisonment for CR 586 of 2024; 4 months imprisonment for CR 587 of 2024 and 3 months imprisonment for CR 585 of 2024.
  8. The sentences for CR 587 and CR 585 shall be served concurrent to the sentence imposed under CR 586 of 2025.

Concurrent or Consecutive

  1. I have considered the Crown’s submissions in relation to the distinct nature of the instant offending and those committed up from the Magistrates Court. I agree that the two offendings before me today, are distinct in time, place and circumstance. I must also in this consideration turn my mind as to the principles of totality and I have. However, in view of the Defendant’s recidivism and little regard for his bail conditions, I consider the need for personal and general deterrence outweighs any other factor here.
  2. I repeat the sentiment, that to make this sentence concurrent will grant the Defendant an “underserved, uncovenanted bonus which would be contrary to the public interest”[1] and therefore inappropriate under these circumstances.
  3. As a result, I add 3 months (as suggested by Miss Lenati appearing this morning) of the sentence in CR 586 of 2024 is added to the 24 months in this instant case totalling an aggregate sentence of 27 months imprisonment.

Suspension

  1. The Defendant has been remanded in custody since he was apprehended on 7 November, 2024. The Crown has proposed for that time to be credited and for the remainder of the Defendant’s sentence as of today to be suspended and for the Defendant to be released forthwith. I accept that proposal.

Result

  1. Tevita Moeaki Kupu is convicted and sentenced as below:

CR 26 of 2025
a) count 1 – 24 months imprisonment;
b) count 2 – 4 months to be served concurrent to count 1.
CR 586 of 2024 – 6 months imprisonment;
CR 587 of 2024 – 4 months imprisonment; and
CR 585 of 2024 – 3 months imprisonment.

The sentences imposed under CR 587 and 585 are to be served concurrent to CR 586 of 2024.

  1. Three months from the sentence imposed under CR 586 of 2024 is added to the sentence imposed in this case resulting in an aggregate sentence of 27 months imprisonment.
  2. The Defendant would have been in custody on remand for this matter for a total of 13 months in two days from today. He is to be given credit for time served as 13 months.
  3. The final 14 months of the aggregate sentence is suspended for a period of 2 years, on condition that during the period of suspension, the Defendant is to:

(a) not commit any offence punishable by imprisonment;

(b) be placed on probation and to report to the Probation Office 7 days from today; and

(c) complete an alcohol and drugs awareness course with the Salvation Army.

  1. Failure to comply with the above conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
  2. 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, the drug-related paraphernalia and cash seized in these proceedings is to be forfeited to the Crown.


P. Tupou KC

Nuku’alofa: 5 December, 2025 JUDGE


[1] Treacy LJ in McClean[2017] EWCA Crim 170

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