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R v Finau [2025] TOSC 77; CR 79-80 of 2025 (29 September 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 79 – 80 of 2025

BETWEEN:
REX
-Prosecution

AND:
[1] KILISITINA FINAU
[2] LESIELI MAKASINI
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr G Aleamotu’a for the Crown Prosecution
Mrs S Fa’otusia for Accused Persons
Date: 29 September 2025

1. THE CHARGES

Kilisitina Finau and Lesieli Makasini

1. Count 1: Possession of Illicit Drugs (possession of 484.43 grams of cannabis) contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act.
2. Count 2: Unlawful Possession of utensils (possession of 70 empty packs, used for packing illicit drugs) contrary to section 5A of the Illicit Drugs Control Act.
   

Kilisitina Finau

3. Count 3: Possession of Illicit Drugs (30.57 grams of cannabis) contrary to section 4(1)(a)(ii) of the Illicit Drugs Control Act.
4. Count 4: Unlawful Possession of Utensils (one bong used for smoking cannabis) contrary to section 5A of the Illicit Drugs Control Act.
   
   2. BACKGROUND
5. On 24 June 2025, the two defendants were arraigned on their respective charges. Kilisitina Finau pleaded guilty to all 4 charges, whereas Lesieli Makasini pleaded not guilty to the charges against her.
6. Trial was set to commence for Lesieli Makasini on 21 July 2025.
7. After the trial and much consideration on the evidence brought before the Court, Lesieli Makasini was found guilty of Count 1 of the charges against her and I now proceed to sentencing for the both of you.
   
   100. CROWN SENTENCING SUBMISSIONS
8. The Crown filed sentencing submissions to assist the Court on 28 July 2025.
9. In light of the Court’s revised ruling in relation to Lesieli Makasini and the withdrawal of Count 2, the Crown was ordered to file a revised sentencing submission.
10. On 26 September 2025, the Court filed a revised sentencing submission to assist the Court in relation to Lesieli Makasini.
11. Aggravating and mitigating features were submitted in relation to each Defendant alongside the following caselaw in support:
    1. Vea v Rex [2004] TOCA 7
    2. Rex v Siliva’ai Huni & Ors [2018] TOSC 33
    100. R v Sitaleki Tu’itavake [2022] TOSC 62
    4. R v Christopher Taufo’ou [2018] TOSC 82
    5. R v Siosiua Totau [2020] TOSC 95
    6. Rex v Finau Pomale (CR176 of 2024)
    7. R v Malolo [2022] TOSC 94
    8. R v Tu’i [2013] TOSC 52
    9. R v Le’ota [2017] TOSC 11
12. The Crown concludes their submissions by recommending the following sentences for each Defendant.

Kilisitina Finau

13. For all Counts, a total sentence of 2 1/2 years imprisonment with the final 6 months to be suspended for a period of 2 years on conditions.

Lesieli Makasini

14. Count 1: Final sentence of 16 months to be fully suspended on conditions for a period of 2 years.
    
    4. PRESENTENCE REPORT & MITIGATION PLEA
15. A presentence report was ordered for both the Defendants. The Probation Office filed reports for Kilisitina on 24 July 2025. For Lesieli, the Court received her report on 29 July 2025.
16. The reports filed detailed the Defendants’ upbringing, personal history and factors in relation to the offending in these proceedings.
    

Kilisitina Finau

17. You are the youngest of five siblings, you are currently single, and you have 3 of your sister’s children in your care. You have no known health issues and you dropped out of high school to help your mom provide income for your family.
18. You used to earn $174.00 fortnightly by working at a gas station but due to your mother’s deteriorating health you have stayed from work to care for her.
19. It is recommended from the Probation Officer for the Court to consider a partial suspension with a condition of completing an alcohol and drug awareness course with the Salvation Army to assist with your rehabilitation.

Lesieli Makasini

20. You are the youngest of seven children, unmarried and is employed at a local gas station at Fua’amotu gas station earning a fortnight salary of $263.00.
21. You have no known health issues, you have been partaking in the seasonal workers group which allows you to meet your family in New Zealand on these occasions in which you are set to travel again
22. You are viewed by the Probation Officer to be at low risk of re-offending as you have had no previous convictions, no history of substance abuse or drug involvement.
23. Your learned Counsel also filed a Sentencing submission on your behalves, where I took into consideration your upbringings and mitigating factors.
    5. DISCUSSION
24. Acting on information received, a police operation took place at a residence in Fua’amotu targeting the First Defendant Kilisitina Finau who had pleaded guilty for being in possession of the quantity of cannabis.
25. The search progressed at this residence leading to an unused motorcar, where the second defendant was found. She had pleaded not guilty and later found guilty after a contested trial for the possession of illicit drugs.
26. I have to make it plain that illicit drugs remain a destructive scourge within the Kingdom, disrupting the communities and destroying lives and the Courts cannot turn a blind eye to such harm and must take a firm stance doing all that is necessary to deter, punish and rehabilitate.

Kilisitina Finau

27. In your case Kilisitina Finau, being in possession of a significant amount (484.43g + 30.57g) of cannabis and utensils used for smoking illicit drugs, you are not a first time offender although it has been accepted and I do accept that it has been 15 years since your last offending.
28. You have pleaded guilty to two counts of being in possession of a significant amount of illicit drugs and two counts of being in possession of utensils. You were found at your residence sitting on a chair outside a parked car where cannabis was found in your trouser and hoodie pockets upon your arrest and search.
29. I have taken into account all the comparable sentences provided by the Crown, however each case must be decided on its own facts. In your case, I agree with the Crown that the head count is Count 1 and impose a starting point of 3 years which I reduce by 6 months for mitigation. For Count 3, a starting point of 12 months imprisonment is submitted concurrent to Count 1.
30. For the Counts involving possession of utensils, I impose a sentence of 6 months each also concurrent to the Head Count. I have considered the guideline in Mo’unga in considering suspension which in your case you are not young however your last offending was a long time ago accordingly my final sentence is one of 2 1/2 years of which I suspend 6 months for 2 years on appropriate conditions.

Lesieli Makasini

31. You Lesieli are a first-time offender, and you pleaded not guilty to being in possession of 484.43 grams of cannabis and unlawful possession of utensils.
32. You were later found guilty for the possession of illicit drugs (56.6g) for which a sentence of 24 months imprisonment is imposed. Taking into consideration your good character and no previous history of offending, a reduction of 6 months imprisonment is imposed resulting in a final sentence of 18 months imprisonment.
33. Taking into consideration the guideline in Mo’unga, in your case, you are young, you have no previous convictions, and no history of substance abuse and for those reasons, I suspend the entirety of your sentence being 18 months for a period of 2 years on conditions.
    
    6. FINAL RESULT

Kilisitina Finau

34. For Counts 1 and 3, possession of illicit drugs (484.43 + 30.57g of cannabis) I impose a sentence of 2 1/2 years imprisonment with the final 6 months to be suspended for a period of 2 years on the following conditions;
    1. You are not to commit any offence punishable by imprisonment
    2. You are to report to the probation office within 48 hours of your release;
    100. You are to be under the supervision of the Probation Office where you will take a life skills and drug awareness course with the Salvation Army.
    4. For Counts 2 and 4, possession of utensils I impose a sentence of 6 months each to be served concurrent to Count 1.
35. For the avoidance of doubt, you will serve a total of 2 1/2 years imprisonment with the final 6 months to be suspended on the said conditions.

Lesieli Makasini

36. For Count 1, possession of illicit drugs (56.6g) I impose a sentence of 18 months imprisonment fully suspended for a period of two years on the following conditions;
    1. You are not to commit any offence punishable by imprisonment;
    2. You are to be placed on probation during the period of suspension;
    100. You are to take undertake a life skills and drug awareness course at the Salvation Army under the directions of the Probation Office; and
    4. You are to complete a total of 60 hours community service.
37. For the avoidance of doubt, you will serve a suspended sentence of 18 months on the said conditions.
38. I further order that the drugs and utensils are destroyed pursuant to section 32(2)(b) of the Illicit Drugs Control Act.