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R v Aso [2026] TOSC 21; CR 170 of 2025 (21 January 2026)

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

CR 170 of 2025

BETWEEN:
REX
-Prosecution

AND:
MEKILONI FOTU ASO
-Accused

SENTENCE

BEFORE:
HON. LORD CHIEF JUSTICE BISHOP KC

Appearances:
Mr G Aleamotu’a for the Crown Prosecution
Mr V Folaumahina for the Defendant

Date:
21 January 2026

1. THE CHARGES

1. The Defendant pleaded guilty on 11 November 2025 to the following charges;
   1. Count 1: Cultivation of an Illicit Drug contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act when on or about 14 July 2025 at Fua’amotu, you did knowingly without lawful excuse, cultivate a Class B illicit drug, when you planted 63 cannabis plants weighing 427.95 grams.
   2. Count 2: Possession of an Illicit Drug contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act when on or about 14 July 2025, you did knowingly without lawful excuse, possess a Class B illicit drug, when you had in your possession 266.08 grams of cannabis.
   100. Count 4: Unlawful Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act when on or about 14 July 2025, at Fua’amotu, you did knowingly without lawful excuse possess utensils, when you had in your possession 3 bongs, 1 smoking pipe and 2 straws used for smoking illicit drugs.
2. In light of your pleas to Counts 1, 2 & 4, the Crown discharged Count 3 to which you had pleaded not guilty and is therefore no longer relevant to your sentencing today.
   2. CROWN SUBMISSIONS
3. The Crown filed their sentencing submissions on 14 January 2026 to assist the Court.
4. Aggravating and mitigating features were submitted alongside the following caselaw in support:
   1. R v Wolfgram CR 35/2020
   2. R v Siliva’a CR 135-136, 139-142/2017
   100. Vea v R [2004] TO Law Rep 28
   4. R v Fa’aoso [2020] TOSC 90
   5. R v Latu CR 136/2017
   6. R v Funaki TOSC 122
   7. Rex v Haisila CR 22/2022
5. The Crown submit the following sentencing recommendation.
   1. Count 1: 30 months imprisonment with the final 12 month suspended for 2 years on conditions.
   2. Count 2: 2 years imprisonment concurrent to Count 1.
   100. Count 4: 12 months imprisonment concurrent to Count 1

100. PRESENTENCE REPORT & MITIGATION SUBMISSIONS

6. On 12 January 2026, a report from the Probation Office was filed where I was told further details about your upbringing, personal history and your version of the offending.
7. You are 39 years of age, once married to Fotui Namoe and had six children ranging from 15 years to 6months old. You are a carpenter at your older brother’s construction limited, and you also have a part-time plumbing contract. You were the sole breadwinner of your family providing through your works as a carpenter.
8. You attended school up until Saineha College where you spend 5 years and ended there. You have no health issues nor ill related diseases. You also have no previous criminal records.
9. The Probation Officer is of the view that you are at moderate risk of re-offending and recommends a partially suspended sentence.
10. Similarly on 12 January 2026, learned counsel on your behalf filed mitigation submissions on your behalf.
11. These submissions underlined mitigating factors and does not oppose the starting points recommended by Crown in their indicative submissions, with the following caselaw in support:
    1. Vea v Rex [2004] TOCA 7
    2. R v Terewi [1999] NZCA 92
    100. Rex v Taulua [2018] TOSC 80
12. Your Counsel proposed to the Court the following sentences, to be served concurrently;
    1. Count 1: 1 year and 9 months imprisonment
    2. Count 2: 8 months imprisonment
    100. Count 3: 4-6 months imprisonment
13. In terms of suspensions, your counsel proposed a suspension of 15 months of your sentence in Count 1 to be suspended on appropriate conditions.
    4. DISCUSSION
14. You have pleaded guilty to three charges on the indictment all in relation to the possession and cultivation of cannabis and to the unlawful possession of utensils.
15. Police conducted a search of your home on 14 July 2025 in Fua’amotu at about 6:30am having received reliable information that cannabis and methamphetamine was being stored at your residence.
16. As a result of that search, with your cooperation to Police, which is to your credit, several cannabis plants were uprooted, green leaves found in various locations in the residence and also utensils. You admitted to ownership of all these items and stated that you took care of the cannabis plants.
17. In your case, it is clear that your role was that of a supplier and this must be marked by a term of imprisonment to denunciate such behaviour and to emphasise the seriousness of your offending in distributing and selling a Class B illicit drug within the community.
18. For Count 1, I impose a starting point of 3 years imprisonment, reduced by 18 months because of your early guilty plea and cooperation with the police.
19. For Count 2, I impose a starting point of 2 years imprisonment, reduced by 12 months for mitigation.
20. For Count 4, I impose a starting point of 6 months, reduced by 3 months for mitigation.
21. In considering whether to suspend a whole or a part of your sentence, having regard to the principles in Mo’unga, you are not young, however this is your first offence as you have no previous convictions and you did plead guilty together with your cooperation with the Police in this matter, I suspend the final 6 months of your sentence for a period of 2 years on conditions.
    5. FINAL RESULT
22. For Count 1, 18 months imprisonment with the final 6 months suspended for 2 years on the following conditions;
    1. You must not commit any offence punishable by imprisonment
    2. You must report to the Probation Office within 48 hours of your release from custody.
    100. You must complete a course at the direction of the Probation Office for Drug and Alcohol Awareness within 12 months
    4. You must live where directed by the Probation Officer.
    5. You must be placed under probation for the entire period of your suspended sentence, namely 2 years.
23. For Count 2, 12 months imprisonment concurrent to Count 1.
24. For Count 4, 3 months imprisonment concurrent to Count 1.
25. In total, are sentenced to 18 months imprisonment with the final 6 months suspended for 2 years on conditions.
26. I further order the destruction of the illicit drugs and utensils in these proceedings pursuant to section 32(3)(b) of the Illicit Drugs Control Act.
27. In light of what I have been told as to the source of the cash seized, namely $390TOP and having considered that you have a wife and 6 children to support, I order that this is to be returned to you by way of your wife forthwith.
28. That is the order of the Court.
    

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
21 JANUARY 2026