Drug offender's suspended sentence stands [1]
Tuesday, October 5, 2021 - 21:50. Updated on Tuesday, October 5, 2021 - 21:55.
A suspended sentence imposed on Manavahetau Fua’eiki aka 'Isileli (43) for possession of methamphetamine and a bullet stands, ruled the Appeal Court on October 1.
The accused had pleaded pleaded guilty to the two charges and was sentenced by Hon Mr. Justice Niu to one-year nine-months imprisonment, fully suspended for three-years, at the Nuku'alofa Supreme Court on April 6. This was on conditions, that he serve 80-hours of community service, attend and complete life skills, drug and alcohol awareness courses of the Salvation Army.
The Attorney General then appealed against the sentence being fully suspended on the grounds that it was manifestly inadequate and was wrong in principle.
The Court said, the first offence was on January 23, 2020 and acting on information received, the Police conducted a warrantless search of car wash premises at Pahu.
Fua'eiki was present. He was searched and was found to be in possession of two packs of methamphetamine containing in total 1.99 grams of methamphetamine and $813.50 in cash. When his home was searched, similar but empty packs were found and a weighing scale.
On October 28 of the same year, while on bail, Fua'eiki was at a premises at 'Anana, when Police arrived. He was found to be holding in his hand two plastic packets. One contained 10 packs of methamphetamine, the other two packs .
The methamphetamine weighed .61 grams in total.
He told the police that the owner of the premises had just handed the packs to him. Telephones found in the possession of the pair contained a message from the owner to Fua'eiki to come and pick up ice.
Suspension
The Crown's appeal was concerned solely with the judge's decision to suspend the entire sentence of imprisonment and took no issue with the imprisonment term imposed.
“Its position is that a fully suspended sentence is manifestly inadequate, failing to give sufficient weight to relevant sentencing principles and is out of line with sentences for drug offending of similar gravity.
“Of particular concern to the Crown is that, by focussing on the aggregate quantify of drugs involved and treating the offending as a single offence, the judge made the error of treating Fua'eiki as a first offender,” said the Appeal Court.
Counsel Tu'utafaiva, for Fua'eiki, defended the judge's decision. He argued that Justice Niu was not wrong to treat Fua'eiki as a first offender, that the sentence overall appropriately reflected the seriousness of the offending and was not inconsistent with prevailing sentences for drug offending.
The Appeal Court said, it was clear that Fua'eiki met the relevant criteria and there was no reason to doubt that a suspended sentence would have a strong deterrent effect.
"The judge was right to have regard to his previous good record and to conclude that he would take the opportunity to rehabilitate himself though we do not think his guilty plea can be truly characterised as cooperation with the authorities. For this purpose, the fact that by the time of the second offence, he was no longer a first offender is of no moment."
“In addition, what is clear is that a suspended sentence was appropriate,” said the Court.
"He has already fulfilled two of the three conditions attached to the suspension of his sentence. In the circumstances, we consider it would be unduly harsh to require him to serve, in addition, a sentence of imprisonment."
The Court then ruled that the sentence should stand and dismissed the appeal.
“We emphasise, however, the exceptional circumstances. In declining to interfere with the sentence, we should not be understood as condoning an approach that would permit sentences for possession of methamphetamine to be routinely suspended in full,” the Appeal Court said.
"On the contrary, this Court accepts that the interests of the community and the importance of deterrence will generally be served only by requiring an offender to serve at least part of his or her sentence."