The distribution and use of methamphetamine in Tonga is a significant government and community concern, Tonga's Appeal Court stated in overturning a judge's decision to let a meth smoker go free.

The Appeal Court has quashed a decision by Supreme Court judge Laki Niu, who last year discharged without conviction, a 38-year-old man who was found in possession of 0.52 grams of methamphetamine.

Justice Niu in his sentencing on November 26, 2018 had discharged Maika Maile on one count of possession of methamphetamine, a Class A drug. Malie had pleaded guilty to the charge at the Supreme Court.

The Crown then appealed against the ruling on sentence on December 12.

The Crown argued that the judge ought not to have discharged Maile without conviction and that the appropriate outcome was that he be convicted and sentenced to a suspended term of imprisonment subject to appropriate conditions. 

The accused who pleaded guilty at the first opportunity had readily admitted to the judge, that he had purchased and smoked what had been in the small plastic bag.

Wrong

The Appeal Court’s said in deciding to grant Maile a discharge without conviction, Justice Niu relied upon several factors.

“We do not accept that any of them, individually or collectively provided a basis for granting Maile a discharge without conviction.”

The Court said Justice Niu had considered it was inappropriate that Maile had been sentenced in 2001 when he was 20-years old to a period of imprisonment with hardened and experienced criminals, who taught him to commit crimes.

The judge had no information about that offending or the reasons a custodial sentence was imposed. There was also no evidence to suggest that Maile had been taught to commit crimes in prison, said the Appeal Court.

Another factor was the finding of this judge that the quantity of methamphetamine was 'infinitesimal' and not enough to use. 

“There was no evidence for such a conclusion and it is incorrect.”

Justice Niu had also said Maile was a victim of drug dealers and if given a further chance he may save himself by committing not to use methamphetamine again. 

The Appeal Court found that “A pre-sentence report noted Maile needed community support to make correct decisions in his life. Such support would not be provided by granting him a discharge without conviction in the hope that he might save himself.

“The pre-sentence report proposed a suspended custodial sentence subject to conditions that includes Maile undertaking alcohol and drug awareness program. We consider that was an appropriate recommendation,” said the Appeal Court.

Procedurally unfair

The Court also noted that Justice Niu did not refer to the then leading case in Tonga and did not refer to recent cases where it has been held that those involved with methamphetamine in any capacity and even small amounts can expect to receive custodial sentence. 

In addition, the judge reached his decision to grant a discharge without a conviction in a procedurally unfair manner when he did not advise counsel, contrary to their submissions, that he was considering discharging Maile.

“Although, Maile was found in possession of only a small quantity of methamphetamine his offending was serious as this is a Class A drug. In prescribing a maximum penalty of 30-years imprisonment for possession of meth, the Legislature has expressed a clear intention that significant penalties are to be imposed.

The distribution and use of methamphetamine in Tonga is a significant Government and community concern, stated the Appeal Court.

Judge wrong

The Court heard, Maile was not a first time offender and there was nothing relating to his character or circumstance to suggest that the entry of a no conviction will have any direct or indirect consequences upon him other than those that ordinarily be expected for such offending. 

“The consequences of entering a conviction against Maile were not out all proportion to the gravity of the offence and the judge was wrong to make an order discharging him without conviction.”

The appeal by the Crown was allowed and the order discharging the accused without conviction quashed.

Conviction recorded

Maile was then convicted on the one count of possession and was sentenced to nine-months imprisonment, which was fully suspended on conditions.

This includes not committing any offences punishable by imprisonment during period of suspension, must not consume alcohol or illicit drugs and attend an alcohol and drug awareness, among other requirements.