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Mafi v R [2004] TongaLawRp 32; [2004] Tonga LR 200 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA

Mafi anor

v

R

Court of Appeal, Nuku'alofa
Burchett, Tompkins, and Salmon JJ
Cr App 9/03

21 July 2004; 30 July 2004

Criminal law – appeals against sentence – one appeal allowed – one appeal dismissed

The appellants were each separately charged with a series of drug-related offences. The first appellant pleaded guilty to all the charges against her. The second appellant pleaded not guilty. Following a defended hearing before the Chief Justice, he was found guilty on all counts, except count 1 under CR 20/04 of cultivation of 8 cannabis plants. The second appellant was unrepresented at his trial. Both appellants were unrepresented at their sentencing. The first appellant was effectively sentenced to 4 ½ years imprisonment. The second appellant was effectively sentenced to 7 years imprisonment. Both appellants appealed against the sentences imposed and contended that the sentences imposed were severe and would affect the appellants adversely for the rest of their lives, but would have little impact on the prevalence of drugs in Tonga.

Held:

1. A significant aggravating feature was the scale of the operation. Having regard to the quantity and manner of packaging, possession was for the purpose of sale. The appellants were not charged with possession for supply, but the probability that they were growing cannabis for the purpose of sale as well as for personal use could properly be taken into account in considering an appropriate sentence.

2. A further aggravating feature common to both appellants was that they were prepared to continue with their criminal activity while they were on bail on the earlier charges. Then having been charged with the earlier offending they again continued with their criminal activity. They were not deterred by their apprehension on the other charges. They appear to have been determined to continue, whatever course the law took.

3. With respect to the first appellant, the Court was satisfied that a deterrent sentence was appropriate. However, the Court concluded that the sentence imposed did not take sufficient account of the influence of the first appellant over her. When this factor was taken into account, an appropriate sentence for the first appellant was a sentence totalling three and a half years. To enable her to resume her life with an incentive to avoid any further drug involvement, the Court suspended the last six months of the sentence, that suspension to be for eighteen months from her release from custody.