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R v Loloa [2025] TOSC 66; CR 78 of 2025 (30 July 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 78 of 2025

BETWEEN:
REX
-Prosecution

AND:
‘OTO LANGAFO’OU LOLOA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr J Fifita for the Crown Prosecution
Mrs S Fa’otusia for the Accused
Date: 30 July 2025

1. THE CHARGES

1. On 24 June 2025, the Defendant pleaded guilty to the following charges;
   1. Count 1: Possession of Illicit Drugs (1238.71grams of cannabis leaves and seeds) contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act.
   2. Count 2: Unlawful Possession of Utensils (1200 empty packs) contrary to section 5A of the Illicit Drugs Control Act.
      2. CROWN SENTENCING SUBMISSIONS
2. The Crown filed submissions to assist the Court on 14 July 2025.
3. Aggravating and mitigating features were submitted in relation to the Defendant alongside the following caselaw in support:
   1. Vea v R [2004] TO Law Rp 28
   2. R v Sitaleki Tu’itavake [2018] TOSC 62
   100. R v Christopher Ta’ufo’ou [2018] TOSC 82
   4. R v Siosiua Totau [2020] TOSC 95
   5. R v Haupeakui & Songo’imoli [2024] TOSC 43
   6. R v ‘Emeline Haisila [2022] TOSC 40
4. The Crown conclude their submissions by recommending the following sentence for the Defendant.
   1. Count 1: 3 years imprisonment with the last 12 months suspended on conditions.
   2. Count 2: 10 months’ imprisonment concurrent to Count 1.
      
   100. PRESENTENCE REPORT & MITIGATION PLEA
5. A presentence report was ordered for the Defendant. The report filed detailed the Defendant’s upbringing, personal history and factors in relation to the offending in this proceeding.
6. You are the fifth child of seven, you are currently married, and you have 5 children. You have no known health issues and although you dropped out of high school at an early stage, you are the sole breadwinner of your family, and you were able to earn income in working a plantation which is now your main source of income.
7. According to the Probation Office, you are remorseful, and your demeanour appears to be genuine.
8. It is recommended from the Probation Officer for the Court to consider a partial suspension on the condition of completing an alcohol and drug awareness course with the Salvation Army to assist with your rehabilitation, or a fully suspended sentence on conditions to complete community work, a rehabilitation program under the direction of the probation office and not associate with any known criminals/drug offenders.
9. On 29 July 2025, learned counsel on your behalf filed submissions for sentencing. I am told further about your personal history, and factors in relation to the offending.
10. A sentence of 3 years imprisonment is recommended with the final 12 months suspended on conditions.
    
    4. DISCUSSION
11. On or about 4 March 2025 the Drugs Enforcement Unit acted on reliable information that you were selling illicit drugs at your residence in Fua’amotu and proceeded to approach your residence where they saw your vehicle leaving your home.
12. They followed the vehicle and pulled it over arresting you and his wife. A quick search conducted of the car identified a black plastic bag on the floor of the back seat.
13. From here, Police together with you and your wife took your vehicle back to your house to continue the search and to also conduct a search of your house. To your credit, you voluntarily cooperated with Police at this time after being cautioned that you do have the right to remain silent by admitting to Police the suspected cannabis leaves in the car was yours. You further told Police before they searched your residence that there are illicit items in your house and you willingly showed them where this was located.
14. As a result of the search, Police tested the suspected cannabis leaves found in your vehicle and the suspected cannabis leaves and seeds at your residence where it was confirmed to be cannabis and the total weight is that reflected in Count 1.
15. I have read the comparable sentences provided by the prosecution and the submissions from your learned counsel, however I must emphasise that each case must be decided on its own particular facts.
16. I take Count 1 as the headcount in this case. I impose a starting point of 3 ½ years imprisonment in which I reduce by 12 months for mitigation.
17. In relation to Count 2, a starting point of 9 months is imposed, reduced by 3 months for mitigation and to be served concurrent to Count 1.
18. I have considered whether it is possible to suspend in whole or in part the sentence I have just imposed keeping in mind the principles in Mo’unga. You are not young, but you are a first-time offender, you have expressed remorse over the offending and cooperated with the Police in the first instance during the search. I have also read supporting letters from your family stating that you are the sole breadwinner and that you have a young family who depend on you to provide for them.
19. On the other hand, the amount of illicit drugs and the utensils found suggests to me and I accept that you are a low-level supplier. The Courts must strike a balance between the prospects of rehabilitation for an offender and deterrence and punishment of such behaviour here in the Kingdom.
20. For those reasons, I suspend the last 12 months of your sentence for a period of 2 years on conditions.
    
    5. FINAL RESULT
21. For Count 1 of Possession of Illicit Drugs (1,238.71grams of cannabis leaves and seeds) contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act, I impose a sentence 2 ½ years imprisonment with the final 12 months suspended for 2 years on the following conditions:
    1. You must not commit any further offence punishable by imprisonment
    2. You must report the Probation Office within 48 hours of your release from custody
    100. You must live where directed with the Probation Officer
    4. You must not associate with any known criminal or drug offender
22. For Count 2 of Unlawful Possession of Utensils (1200 empty packs) contrary to section 5A of the Illicit Drugs Control Act, I impose a sentence 6 months’ imprisonment, concurrent to Count 1.
23. In total, you will serve an imprisonment sentence of 18 months followed by 12 months suspension for a period of 2 years on the conditions I have just mentioned.
24. Any time served is to be credited to the sentence I have just imposed.
25. I further order pursuant to section 32(2)(b) of the Illicit Drugs Control Act, all the drugs and utensils in these proceedings be destroyed.
26. That is the order of the Court.