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R v 'Akau'ola [2025] TOSC 90; CR 164 & 165 of 2024 (9 September 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDCITION
NUKU’ALOFA REGISTRY

CR 164 &CR 165 of 2024

REX

-V-

LOUENA ‘AKAU’OLA
SIAOSI KALONIHEA

SENTENCE AND SENTENCING REMARKS

BEFORE:
HON. JUSTICE PAUL GARLICK KC

Appearances:
Ms. M Lenati for the Prosecution
Ms L Tonga for the Defendants

Date:
9 September 2025

The Charges

1. The defendants stand to be sentenced for the following offences:

Louena ‘Akauola (“Louena”)

(Count 1)

Possession of an illicit drug, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act. (7.07 grams)

(Count 2)

Possession of utensils, contrary to section 5A of the Illicit Drugs Control Act. (2 smoking pipes)

Siaosi Kalonihea (“Siaosi”)

(Count 3)

Possession of an illicit drug, contrary to section 4(1)(a)(iv) of the Illicit Drugs Control Act. (3.38 grams)

(Count 4)

Possession of utensils, contrary to section 5A of the Illicit Drugs Control Act. (13 empty packs and 1 weighing scale)

2. On their arraignment on 9 December 2024, the defendants pleaded not guilty to all the charges. However, on 8 July 2025, the defendants were re-arraigned, and they both pleaded guilty to their respective charges.
   

The offending conduct

3. On 3 July 2024, the police went to the area of Lomaiviti, where they saw Louena riding a bicycle. She was detained, and a bag that she had in her possession was searched and found to contain illicit drugs and a sum of cash. The police then searched her residence, where they saw Siaosi arrive and park his car. They arrested Siaosi and proceeded to search the house. The police found two smoking pipes in the house, which Siaosi claimed belonged to another person. The police then searched Siaosi’s car and, in a bag on the dashboard, found a bag containing drugs and cash. Later, at the police station, the striped bag that Louena had had in her possession was searched and found to contain seven packs of methamphetamine and some cash. In the bag that had been found on the dashboard of Siaosi’s car, they found 3 packets of methamphetamine. In an inner pocket of the bag, they found three further packets of methamphetamine.
   

Previous convictions of the defendants

4. Both defendants have previous convictions. Louena has just one previous court appearance. On 10 December 2020, she was sentenced to a total of 6 months’ imprisonment for two offences of possession of illicit drugs (methamphetamine and cannabis). That sentence of imprisonment was fully suspended for a period of 12 months. On the other hand, Siaosi has a long list of previous convictions for drug offences and has been sentenced to various periods of imprisonment. A full list of his previous convictions is set out in section II of the Crown’s sentencing submissions.
   

Relevant legislation regarding sentences

5. Under section 4(1)(a)(iv) of the Illicit Drugs Control Act, the penalty for possession of a Class A illicit drug above 1 gram is a fine not exceeding $1,000,000 or imprisonment for any period not exceeding life or both.
   
6. Under section 5A of the Illicit Drugs Control Act, the penalty for possession of utensils is a fine not exceeding $10,000 or imprisonment for any period not exceeding 3 years or both
   

Submissions by the Crown as the mitigating and aggravating circumstances of the offences

7. The Crown submits that the aggravating and mitigating features in this case are:

Aggravating features

Louena ‘Akauola

(a) The substantial amount of the Class A illicit drug (methamphetamine) possessed by the defendant .
(b) She did not cooperate with Police.

(c)Drug offending is a serious issue in the country.

(d) She has a previous conviction for a drug related offence in 2020.
(e) She is not young.

Siaosi Kalonihea

(a) A substantial amount of the Class A illicit drug (methamphetamine) was in the possession of the defendant.

(b ) The Accused did not cooperate with the Police.

(c )Drug offending is a serious issue in the country.

(d ) The Accused is a repeated drug offender

(e ) The Accused is not young.

Mitigating features

Louena ‘Akauola

She pleaded guilty when she was re-arraigned.

Siaosi Kalonihea

He pleaded guilty when he was re-arraigned.

The submissions in mitigation of sentence

8. The defence submissions in mitigation of sentence are set out in detail in the written prepared by counsel for the defendants, dated 2 September 2025. The court is grateful to counsel for the defence for these detailed submissions. In summary, the defence submits that the following mitigating features exist in this case.
   1. The defendants are a young married couple with three young children, who are all attending school.
   2. They are both remorseful.
   100. They have shown changes in their lifestyles for the better.
   4. They both pleaded guilty after they had received legal advice.
   5. The matters set out in the letters from Rev. Siua ‘Atevalu and the Tevita Piukana.
      

The Crown’s submissions regarding sentencing in comparable cases

9. In section V of its submissions, the Crown has set out a selection of decided cases to assist the court in determining the appropriate sentence in this case. I have considered those cases carefully. However, no cases can truly be said to be “comparable”, and it is for the court to determine the appropriate sentence in the particular case that it is dealing with, having regard to all the circumstances of the case.
   
10. The Crown submit that these offences pass the threshold for a custodial sentence, and I agree with that analysis of the appropriate sentence in this case. In the case of R v Maile [2019], the Court of Appeal made it clear that in respect of drug offences, such as those in the instant case, there must be an immediate custodial sentence, which reflects the seriousness of the offence.
    

Consideration of the appropriate sentence upon the defendant

11. Having regard to the submissions made on behalf of the Crown and the defence, I have determined that the following sentences are the appropriate and proportionate sentences in this case.
    
12. In the case of each defendant, I have carefully considered the detailed submissions made on behalf of the Crown in section VI. I have also considered carefully all the matters set out in the submissions made on behalf of the defence.
    
13. In the case of Ms ‘Akauola, I find that her role was clearly that of a supplier of the drugs. Accordingly, her role and culpability are both significant and come within band 2 in the guidelines set out in the case of Zhang. However, she has only one previous conviction, and she has not served an immediate sentence of imprisonment. Accordingly, I find that the starting point in her case, in respect of count 1, is one of 3 years’ imprisonment. I will reduce that starting point to one of 2 years’ imprisonment, to reflect the fact that she pleaded guilty as soon as she had the benefit of legal advice. There will be a concurrent sentence of 3 months’ imprisonment on count 2. Time spent in custody will count towards time served. In her case, I find that it is just and proportionate to suspend the final 12 months of her sentence of imprisonment, applying the principles set out in the case of Mo’unga [1998] Tonga LR 154. Accordingly, the total sentence is one of 2 years imprisonment, where the last 12 months will be suspended for a period of 2 years, on the conditions set out below.
14. In the case of Mr. Kalonihea, I find that the starting point in his case is one of 4 years’ imprisonment for the head offence in count 3. Again, in his case, I will reduce that sentence to one of 32 months’ imprisonment, to reflect his pleas of guilty, after receiving legal advice. The will be a concurrent sentence of 3 months’ imprisonment on count 4, making a total sentence of 32 months’ imprisonment. Again, in his case, time spent in custody will count towards time served. In his case, because of his numerous previous convictions, I find it difficult to suspend part of those sentences. However, applying the Mo’unga principles, I cannot rule out the possibility that he will rehabilitate himself during the custodial period of his sentence, and that the imposition of a period of suspension will assist in that process of rehabilitation. Accordingly, the final 6 months of his total sentence will be suspended for a period of 2 years.
    

Final sentences

Ms ‘Akauola

15. The sentences that I impose upon the defendant Ms ‘Akauola are one of 2 years’ imprisonment on count 1- and 3-months imprisonment on count 2. Those sentences shall run concurrently, making a total sentence of 2 years’ imprisonment. Any time spent in custody on remand shall count towards time served. The final 12 months of the total sentence of imprisonment shall be suspended for a period of 2 years.
    
16. The conditions that shall attach to the suspended sentence order are as follows. The defendant shall:
    • (i) be placed on probation for a period of 2 years after her release;
    • (ii) not commit any offence punishable with imprisonment during the operational period of the suspended sentence (2 years);
    • (iii) report to the probation service not later than 48 hours after being released from prison.
      

Mr. Kalonihea

17. The sentences that I impose upon the defendant, Mr. Kalonihea, are 32 months’ imprisonment on count 3- and 3-months’ imprisonment on count 4. Those sentences shall run concurrently, making a total sentence of 32 months’ imprisonment. Any time spent in custody on remand shall count towards time served. The final 6 months of the total sentence of imprisonment shall be suspended for a period of 2 years.
    
18. The conditions that shall attach to the suspended sentence order are as follows. The defendant shall:
    • (i) be placed on probation for a period of 2 years after his release;
    • (ii) not commit any offence punishable with imprisonment during the operational period of the suspended sentence (2 years);
    • (iii) report to the probation service not later than 48 hours after being released from prison.
      
19. Finally, I make an order for the destruction of the drugs and forfeiture of the sums of cash found by the police when the defendants were arrested, and they conducted the various searches.
    

This is the sentence of the Court

NUKUALOFA

HON. JUSTICE PAUL GARLICK KC
JUDGE

9 September 2025