By Linny Folau

An appeal by the Crown against a three-year fully suspended sentence imposed on Kapeni Tamo’ua on charges, including possession of 3kgs of cocaine in the Vava’u haul, was dismissed by the Court of Appeal in Nuku’alofa.

However, Justices Harrison, Heath and Dalton in a judgment on 5 October stated that were it not for the fact that this was a Crown appeal against sentence, they would have sentenced him to an imprisonment term.

The court heard that Kapeni stood trial at Supreme Court on one charge of possessing the 3kgs of cocaine and one for destroying evidence. The jury found him guilty on both charges.

On 30 March 2023, Justice Cooper sentenced him to a term of imprisonment of three-years, fully suspended for three-years, together with 50-hours community service.

The Crown then sought leave to appeal against sentence on the grounds that it was manifestly inadequate, and leave to appeal was granted by the Lord Chief Justice on 27 April 2023, who also stayed execution of the sentence pending determination of the appeal.

The Crown contended that the sentencing judge erred because: the period of imprisonment that he reached as an end sentence was too short and (b) the sentence of imprisonment ought not to have been suspended fully; and no discrete sentence was imposed on the charge of destroying evidence.

Cocaine washed up on beach

About 23 July 2021, a raft containing 36 bricks of cocaine washed up on a beach at ‘Otulea. The cocaine was found by Nomani Naeata, who distributed it among people living in Vava'u. Following Police inquiries, a number of people were charged with complicity in the offending, most with possessing cocaine. One of those people was Mr Tamo’ua.

Mr Tamo'ua pleaded not guilty to the charges of possessing cocaine and destroying evidence and was tried together with two other co-offenders, Mr Makisi 'Ahovelo and Fe'ofa'aki Havea. After guilty verdicts had been returned, they were sentenced on 30 March 2023 along with others (some of greater culpability) who had either pleaded guilty or been found guilty following trial for offences relating to the cocaine found in Vava'u. One of the other offenders before the Court for sentence was Mr Tamo'ua's son-in-law, Leonati Motuliki.

“Mr Tamo'ua did not give evidence at his trial. As he was found guilty by a jury on both charges, there is no record of the reasons why the jury returned those verdicts,” stated the appeal judges.

"For sentencing purposes, we regard Mr Tamo'ua as someone who, while in "possession" of the cocaine in a strict legal sense, was not a willing participant in the criminal enterprise. We find that he destroyed the cocaine both to protect his family (his daughter was married to Mr Motuliki), to disassociate himself from the criminal activity and to avoid the possibility that the Police might consider that the cocaine belonged to him. That is the basis, which we consider the Crown's sentence appeal. Although expressed differently in the Sentencing Remarks, our assessment is not materially dissimilar to the basis on which Cooper J sentenced Mr Tamo'ua."

Analysis

The Appeal judges concluded that the judge did err in his sentencing methodology and in his decision to suspend fully the term of imprisonment that would otherwise have been imposed on Mr Tamo'ua.

“In our view, those errors led the judge to provide an inadequate sentencing response to the totality of Mr Tamo'ua's offending. It is necessary for us to re-sentence Mr Tamo’ua.

“In any jurisdiction, determination of an appropriate sentence to reflect an offender's culpability will be guided by the community's views (as manifested in the legislation creating the offence and providing minimum penalties) about the seriousness of particular offending. In Tonga, the maximum penalty for possession of a Class A controlled drug, such as cocaine, has to be increased significantly in recent times.

“Since December 2020, the statutory maximum penalty in Tonga for possession of lgm or more of a less A drug is a fine of $1 million, life imprisonment or both. The intended increase from the previous maximum period of imprisonment of 30-years was part of Parliament's response to the growing scourge of such drugs in the Kingdom, most commonly methamphetamine. Prior to the recent [cocaine cases from Vava'u] ... drug offending involving cocaine has been relatively rare before the courts. We consider that the Crown's complaint about sentencing methodology are justified.

“We consider that the judge placed too much emphasis on the two-stage approach set out in the UK Guidelines. That led, in our view, to an error in assessing the appropriate starting point,“ stated the Appeal judges.

Lowest end of scale

"On any view, Mr Tamo'ua's culpability for possession of cocaine was, notwithstanding the quantity involved, the lowest end of the scale. He was an unwilling recipient of the package of drugs and did not intend to trade, supply or otherwise profit from them. Mr Tamoua's reasons for destroying the cocaine to distance its possession from himself and his family was understandable, though not excusable. We consider that his culpability for possession is so low that the destruction charge ought to be regarded as the lead offence. Mr Tamo'ua's criminality stems from his decision to destroy the cocaine rather than from his possession of it,

“No additional credit should be given for the lesser role than that inherent in the starting point of five-years imprisonment which we have assessed as appropriate.

“We assess this issue by reference to the leading authority on whether a sentence should be suspended and, if so, for how long. Given the policy towards drug sentencing evidenced by the significant increase in maximum penalty for possession of Class A controlled drugs of a quantity of 1gm or more, we cannot accept that Mr Tamo'ua ought to have escaped imprisonment completely."

However, the judges stated his limited culpability and the likelihood that he will take the opportunity to rehabilitate himself, together with the unique circumstances of his offending, does permit the maximum degree of suspension.

" In our view, an appropriate sentence would have been imprisonment for a period of four-years, with three of those years being suspended. That would have left Mr Tamo'ua serving one-year in prison. Were it not for the fact that this is a Crown appeal against sentence, we would have imposed a sentence of four-years imprisonment, with three-years suspended. In that situation, we would not have added the community service component of the existing sentence.

“However for the reasons given in explaining an appellate court’s approach to the Crown appeals against sentence, we do not consider it would be just to require Mr Tamo'ua to serve any period of imprisonment at this time."

“For those reasons, the appeal is dismissed. Mr Tamo'ua will continue to serve the sentence imposed by the Supreme Court including community service. On delivery of this judgment, the stay granted by Lord Chief Justice Whitten on execution of the sentence shall cease.

The appeal court stated that “For the avoidance of doubt, we make it clear that, in a future case truly analogous to this, it would be rare that a sentencing court could justify imposing a sentence that did not involve at least a relatively short period in custody.”