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R v Fehoko [2025] TOSC 23; CR 196 of 2024 (11 March 2025)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 196 of 2024, CR 238 of 2024

BETWEEN:

REX

-Prosecution

AND:

KULISITAFU FEHOKO a.k.a KUSITAFU a.k.a TAFU FEHOKO

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr K Tamo’ua for the Crown Prosecution

The Accused in Person

Date: 11 March 2025

1. THE CHARGES

1. On 4 December 2024, you pleaded guilty to the following charges:
   1. Count 1: Possession of an Illicit Drug, (1.28g of methamphetamine) contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act.
   2. Count 2: Possession of Utensils (1 smoking pipe, 352 empty packs & 1 clear plastic straw) contrary of 5A of the Illicit Drugs Control Act.
      
2. You have other charges which was committed up as a summary matter being CR 238 of 2024 on 18 December 2024 to be sentenced together with CR 196 of 2024.
3. On 29 November 2024, you pleaded guilty to those charges as follows:
   1. Mag. CR 619/2024 Possession of Utensils (4 empty packs)
   2. Mag. CR 621/2024 Possession of Illicit Drugs (0.40g of cannabis)

2. CROWN SUBMISSIONS

4. On 10 January 2025, the Crown filed their sentencing submissions to assist the Court.
5. Aggravating and mitigating features were submitted together with the following caselaw in support;
   1. R v Viliami Mangisi CR 10/2018
   2. R v Latu [2022] TOSC 56; CR 147 of 2021
   100. R v Maile [2021] TOSC 69; CR 132 of 2021
   4. R v Tu’ifua & Anor TOSC 153; CR 109-110 of 2021
   5. R v Manuofetoa & Ors TOSC 17; CR 142 of 2023
6. The Crown recommend the following sentence with reliance on Zhang which was applied in Mangisi;

CR 196 of 2024

1. Count 1: 10 to 16 months’ imprisonment
2. Count 2: 8 to 10 months’ imprisonment

CR 238 of 2024

1. CR 619 of 2024: 2 months imprisonment
2. CR 621 of 2024: 1 month imprisonment concurrent to CR 619/2024
   

7. The Crown submit that one month from CR 238/2024 should be served consecutively to CR 196/2024 in view of Attorney General v Toki AC 19 of 2022
8. The Crown further submit that the last 8 months is suspended for the Accused on conditions for a period of 2 years.
   100. PRESENTENCE REPORT
9. A presentence report was filed from the Probation Office 10 February 2025.
10. The report detailed your upbringing, personal history and factors relating to the offence with their recommendation.
11. You have expressed remorse over the offending, and you stated the reason for it was to gain some income. I accept that you have little or no connections to your community or your church and that you have a previous conviction in relation to domestic abuse and assault.
12. You have skills as a motor engineer, and you have worked for three different companies. You are currently unemployed, and you are at “high-risk” of reoffending.
13. The Probation Office concludes their report by recommending a partly suspended sentence on conditions.
    4. DSCUSSION

CR 196 of 2024

14. You have pleaded guilty to being in possession of 1.28g of methamphetamine in Count 1 and in Count 2 possession of the paraphernalia to be used in the ingestion of this dangerous drug.
15. As you know methamphetamine is a scourge in the Kingdom as it increases wrongdoing, destroys family relationships and is generally a curse on society and the court must deal seriously with those who flout the law in the way that you have done.
16. I am quite satisfied that pursuant to section 4(2)(b) of the Illicit Drugs Act the amount of methamphetamine in your possession namely 1.28g enables me to draw the inference which I do that such drugs were in your possession not as a user only but as a supplier.
17. That is a very serious matter in accordance with the helpful guidelines submitted by the crown it seems to me but no other term of other than a custodial sentence is appropriate for count 1 the possession of 1.28 g of methamphetamine. I sentence you to 18 months’ imprisonment from which I deduct 6 months by way of recognition of your guilty plea making a total of 12 months the sentence in count 2 is 9 months from which I deduct three months making a total in that case of 6 months to run concurrently.

CR 236 of 2024

18. In addition, you are to be sentenced for being possession of a number of packs of cannabis and four empty packs when the police executed a search warrant because of your failure to comply with your bail conditions namely your curfew.
19. The appropriate starting point is 3 months from which I deduct 1 month by way of your guilty plea making a total of 2 months for possession of utensils.
20. For possession of 0.40g of cannabis I sentence you to 1 month imprisonment to be served concurrently.
21. The sentences in this summary matter are to be served consecutively to the sentence of 12 months which I have just imposed making a total sentence of 14 months imprisonment.
22. I have considered the question of suspension, and you are not young, you did not cooperate with the police, but you did plead guilty at an early opportunity and at the hope that you will learn the lesson of your ways, I will suspend 6 months of your sentence for a period of 2 years on conditions.
23. The upshot is you must now to serve 8 months imprisonment followed by 6 months suspended for two years.

FINAL RESULT

24. For CR 196 of 2024, the Accused is sentenced to 12 months’ imprisonment in Count 1 and 6 months imprisonment concurrent to Count 1 in Count 2. A total of 12 months’ imprisonment is imposed.
25. For CR 201 of 2024, the Accused is sentenced to 2 months imprisonment for possession of utensils and 1 month imprisonment concurrent for possession of illicit drugs. A total of 2 months imprisonment is imposed, to be served consecutively to the sentence imposed in CR 196 of 2024.
26. You will serve a sentence of 14 months imprisonment with the last 6 months suspended on the following conditions;
    1. You must not commit any further offence punishable by imprisonment.
    2. You must report to the Probation Office within 48 hours of your release from custody.
    100. You must be placed on probation for the period of your suspended sentence.
    4. You must complete a drugs awareness course at the direction of the Probation Officer
27. For the avoidance of doubt, I sentence you to 8 months imprisonment followed by 6 months suspended on conditions.
28. I further order in pursuant with section 32(2)(b) of the Illicit Drugs Control Act, all drugs and utensils in these proceedings are to be destroyed. I also order that the cash seized, amounting to $193 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