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R v Pomale [2025] TOSC 21; CR 176 of 2024 (11 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 176 of 2024

BETWEEN:
REX
-Prosecution

AND:
FINAU POMALE
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC
Appearance: Mr K Tamo’ua for the Crown Prosecution
The Defendant in person
Date: 11 March 2025

1. THE CHARGES

1. On 21 January 2025, the Accused changed his plea and pleaded guilty to the following charges;
   1. Count 1: Cultivation of an Illicit Drug, contrary to section(1)(a)(ii) of the Illicit Drugs Control Act (herein after referred to as “the Act”)
   2. Count 2: Possession of an Illicit Drug, contrary to section 4(1)(a)(i) of the Act.
   100. Count 3: Possession of Utensils, contrary to section 5A of the Act

2. CROWN SUBMISSIONS

2. On 4 March 2025, the Crown filed their sentencing submissions to assist the Court.
3. Aggravating and mitigating features were submitted along with the following caselaw in support;
   1. Veav R [2004] TOCA 7
   2. R v Heamani Saafi [2021] TOSC 10; CR 290 of 2020
   100. R v Fetu’u’aho [2021] TOSC 83; CR 58 of 2021
   4. R v Tu’ifua & Anor TOSC 153; CR 109-110 of 2021
   5. R v Haupeakui & Songo’imoli [2024] TOSC 43; CR 66 & 67, 150 of 2023
4. On 7 March 2025, the Crown filed supplementary submissions disclosing further previous convictions, some in relation to drugs as recent as 2024 before the Magistrate Court.
5. The Crown recommended the following sentence:
   1. Count 1: 19 months’ imprisonment
   2. Count 2: 10 months’ imprisonment concurrent to Count 1.
   100. Count 3: 14 months’ imprisonment concurrent to Count 1.
6. The last 4 months of the sentence is to be suspended on conditions.
   100. PRESENTENCE REPORT
7. A presentence report was filed from the Probation Office 4 February 2025.
8. The report detailed your upbringing, personal history and factors relating to the offence with their recommendation.
9. You are at “high-risk” of reoffending given your pattern of offending, with majority being in relation to illicit drugs and lack of remorse shown for the current offending amongst other factors.
10. The Probation Office concludes their report by recommending a fully custodial sentence.
    4. DISCUSSION
11. You have been found guilty of cultivating 79 cannabis plant weighing 33.07g in your allotment.
12. You’re also to be sentenced for being in possession of utensils to use in connection with cannabis and also being in disregard of the criminal law by someone who has shown a pattern of offending despite the chances that you have been given.
13. I take into account your previous convictions and your plea of guilty at a late stage. There is no other way than an immediate term of imprisonment in your case having regards to the imperative in the Kingdom of rooting out illegal drugs which is a scourge here.
14. The sentence is as follows in relation to Count 1, 18 months as the head sentence from which I deduct 3 months to take account of your guilty plea making 15 months in all. For Count 2, 9 months imprisonment, 3-month reduction making a total of 6 months. On Count 3, 6 months reduced by 3 months. The upshot is that you will serve concurrent terms of a total of 15 months’ imprisonment.
15. I’ve considered the question of a suspended sentence; you are not young, and you’ve shown a little to no remorse, but you did plead guilty, so a modest suspension period of 3 months is appropriate.
16. This means that in your case you will serve 12 months in custody followed by a period of 3 months suspended for a year on conditions.
17. You will be placed on probation during the period of your suspension which is for 12 months, and you must undertake a drug awareness course by the Salvation Army and to live where directed by the Probation Officer.
    5. FINAL RESULT
18. For Count 1 of Cultivation of an Illicit Drug, I impose a sentence of 15 months’ imprisonment.
19. For Count 2 of Possession of an Illicit Drug, I impose a sentence of 6 months’ imprisonment concurrent to Count 1.
20. Count 3 of Possession of Utensils, I impose a sentence of 3 months’ imprisonment concurrent to Count 1.
21. For the avoidance of doubt, you will serve a total of 15 months’ imprisonment with the last 3 months suspended for a year on the following conditions;
    1. You must not commit any further offences punishable by imprisonment
    2. You must be placed on probation
    100. You must complete a drugs and alcohol course at the direction of the Probation Officer
    4. You must live where directed by the Probation Officer
22. Additionally, I order the destruction of all illicit drugs and utensils in these proceedings pursuant to 32(2)(b) of the Illicit Drugs Control Act. I also order that the cash seized, amounting to $112 be forfeited to the Crown pursuant to section 33 of the same Act.
    

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

11 March 2025