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R v Sima [2021] TOSC 112; CR 42 of 2021 (2 July 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 42 of 2021

REX

-v-

VILIAMI SIMA

BEFORE HON. JUSTICE NIU

Counsel : Ms. S. ‘Eliesa and Ms. ‘E. Lui for the Crown.

: Viliami Sima, accused, for himself.

Plea : Guilty, on 18 March 2021.

Report : by ‘Ilaisaane Fifita, probation officer, on 14 April 2021.

Submissions : by Ms. ‘Eliesa on 22 April 2021.

: by the accused on 30 April 2021 and on 11 June 2021.

Sentencing : 2 July 2021.

SENTENCING

Offences

[1] Viliami Sima, you have committed 2 offences, namely, that on 15 September 2020, at Ma’ufanga, you possessed willfully and without lawful excuse,

Count 1: 0.18 gram of methamphetamine, and

Count 2: 16.5 grams of cannabis,

contrary to S.4 (a) (iii) and S.4 (a) (i) of the Illicit Drugs Control Act respectively.

[2] You pleaded guilty to those 2 offences on 18 March 2021.

Summary of facts

[3] According to the summary of facts which the Crown provided to you before you pleaded guilty, the Police received information that you were selling drugs at your market stall at Ma’ufanga opposite Nauti Ruby bar and restaurant. They came there right away and your wife was there but you were at Nauti Ruby. You were brought from there and the police searched your stall. They found in the room behind the stall 1 pack of meth on top of the bed, 1 pack of cannabis, empty packs, 2 test tubes and 1 ear bud wrapped in a diaper in a bag, 20 packs of cannabis and 4 packs of meth in a plastic bag inside a small box in the wall.

[4] The cannabis was weighed and it came to a total of 16.5 grams. The methamphetamine was weighed and it came to a total of 0.18 gram. You were questioned about these drugs but you chose not to say anything. You did not cooperate with the police.

The probation report

[5] The probation officer says that you are 46 years old, that you are married and that you have 3 children who are aged 24, 21 and 18, but that you are separated, that your wife and 3 children are in Australia and that you now live with a de facto partner with whom you have 3 children aged 5, 3 and 7 months. The officer says that you told her that you have another 8 children who have been born illegitimately to you.

[6] You told her that you earn your living by picking and selling green coconuts and also by selling drugs. You told her that you left school in form 2.

[7] You told her that you smoke cannabis and methamphetamine and that you even grew cannabis, and that you have previous conviction for drugs as well as for other offences.

[8] She says that you told her that you are very sorry for breaking the law and that you are truly repentant. You told her that you were blinded by the drugs and that you have now realised you need help to stop your dependence on it. You told her that you have sought help from and have attended the Salvation Army courses on drug awareness.

[9] She attaches a letter from the town officer of Ha’alalo and from your Church bishop from Ha’akame, as well as a letter from Mele Prescott of the Salvation Army. Mele Prescott says that you are currently attending their Life Skills course at the Alcohol and Drug Awareness Programme of the Salvation Army. She says that you just walked in and asked for their help. She says that you have attended their classes regularly and that you have shown great discipline, and that as of the date of her letter, 18 March 2021, you were already half way through with the programme. She recommends that you continue to finish the course.

[10] Accordingly, the probation officer recommends that you be granted a suspension of sentence in order that you complete the Salvation Army course on Drug awareness and that you be ordered not to consume any drug or alcohol.

Crown submissions

[11] Ms. ‘Eliesa for the Crown says that you have 2 previous convictions, one for cruelty to children for which you were sentenced to 2 months imprisonment in 2001, and the other for a similar offence for which you were sentenced to 3 months imprisonment in 2012. She says nothing about any conviction for drugs as you had told the probation officer.

[12] She correctly refers to 4 cases which are similar to your case, namely,

(a) R v Tengange (CR231/2019), where the accused pleaded guilty to possession of 0.38 gm of methamphetamine and was sentenced to 6 months imprisonment but fully suspended for 1 year on conditions,

(b) R v Pouono (CR27/2019), where the accused was found guilty of possessing 0.18 gm of methamphetamine and of bribery of a police officer. She was sentenced to 6 months imprisonment for the methamphetamine and 12 months for the bribery, to be served consecutively, that is a total of 18 months, but both to be suspended for 2 years on conditions,

(c) R v Fifita (CR232/2020), where the accused pleaded guilty to possessing 0.16 gm of methamphetamine and without previous conviction. He was sentenced to 9 months imprisonment but suspended for 3 years on condition he took the Salvation Army Course and serve 50 hours community service.

(d) R v Afu (CR177/20), where the accused pleaded guilty to possessing 0.11 gm of methamphetamine and had no previous conviction. He was sentenced to 6 months imprisonment but fully suspended for 12 months on conditions.

[13] Ms. ‘Eliesa recommends that, in accordance with those cases, you be sentenced to 6months imprisonment for the methamphetamine offence and to 3 months for the cannabis offence, both to be served concurrently, but both to be fully suspended on condition that you take the Salvation Army course on drug awareness and to serve a community service.

[14] She asks for an order that the drugs found be destroyed.

Your submissions

[15] Because you had no counsel representing you, you spoke to me in Court in mitigation on 30 April 2021. You apologised that you had done wrong and that you had decided to stop what you had been doing and to try and look after and educate your children. You told me that you climb and pick green coconuts on tax allotments of other people and that you halve the proceeds of sale of the husked coconuts with those people. You said that on average you would sell 100 coconuts a day so that you would have about $250 per week. You said that you would also make brooms for sale from which you would make about $60 a week as well.

[16] You told me that you maintain 9 children, 5 of whom live with you and your partner at Ha’alalo and that you live in a house which you are looking after. You said that you have a crop of manioke of about 1½ acre which was 4 months old, and which you kept weeded, which you would halve with the owner of the tax allotment when harvested.

[17] I told you, and you agreed, that the income from the green coconuts was sporadic and was unreliable and that you needed a regular job with a steady income for your family, so that you would not need to ask anyone, especially the drug dealers, for money, and I gave you a month to see if you could find and keep such a job.

[18] On 11 June 2021, you came back to Court with a letter which confirmed that you had found such a job. That letter is from a company named Katoa Mower & Engineering Co. Ltd which confirmed that you are employed by it at a weekly wage of $350 and that you are trust worthy and hardworking. You told me that not only you mow lawns contracted by the company but that you also fix the mowers for the company.

Consideration

[19] In considering the appropriate sentence for your 2 offences, I am satisfied that the sentence recommended by the Crown is the appropriate sentence for you, namely 6 months imprisonment, and I also agree with its recommendation that that sentence be fully suspended on the conditions recommended, except in respect of the community service. I consider that it is sufficient that you only complete the Salvation Army course and that you abstain from alcohol and drugs. You have shown that you have rehabilitated yourself.

Sentence

[20] Accordingly, I sentence you as follows:

(a) For the offence of possessing 0.18 gm of methamphetamine, you are sentenced to 6 months imprisonment.

(b) For the offence of possessing 16.5 grams of cannabis, you are sentenced to 3 months imprisonment.

(c) Both sentences (in (a) and (b) above) shall be concurrent, and shall be fully suspended for a period of 3 years from today on the conditions that you

(i) complete the drug and alcohol awareness course of the Salvation Army, and you

(ii) do not commit an offence punishable by imprisonment within the period of suspension, and that you

(iii) do not drink or consume any alcohol or drug.

[21] I order that the drugs in respect of these offences and the items found together with drugs be destroyed by the police forthwith.

Niu J

Nuku’alofa: 2 July 2021 J U D G E