By Linny Folau

'Aisea Havea (35) and Kaniteli Guttenbeil (33) who were found guilty of jointly possessing 3.33 grams of cannabis and possession of drugs utensils in Popua were jailed.

Justice Cooper last month handed down an extempore judgement convicting all three defendants of the counts they faced. This written verdict and sentence issued in 5 April formalized those decisions.

Co-accused, Heneli Manuofetoa of Ma'ufanga, on 15 March 2023 was charged with possession of a Class B illicit drug, 0.41 grams of cannabis.

The accused Havea of Havelu and Guttenbeil of Ma'ufanga were charged with possession of 3.33 grams of cannabis. On another count, Havea and Guttenbeil were also charged with possession of utensils, namely one test tube and seven empty packets used for smoking and packing illicit drugs.

The court heard that on 15 March 2023 at around 5:00pm, at Popua in Tongatapu, a number of people were arrested at the 'api of Sione Songo'imoli, in respect of allegations of possession of illicit drugs.

This trial focused on just three people and two particular locations where the packets of cannabis and a smoking pipe were recovered. All three defendants had been found in and around two motor vehicles that  afternoon, parked at Mr. Songoi'moli's 'api (home), when the police raided the address. Mr. Manuofetoa was found standing next to a green Toyota saloon at the driver's door. The two occupants were Pita Talanoa, in the driver's seat and a woman in the front passenger seat. Behind that car, on the ground, was located a packet of cannabis, its net weight being 0.41 grams.

Mr. Guttenbeil was found in the driver's seat of a white Mazda car parked to the side of and a car's length behind the green Toyota. While, Mr. Havea was in the front passenger seat of that same white Mazda motor car. The second location concerned the item found between these two men. It was a black shoulder bag, that contained eight packets of cannabis and a smoking pipe. The bag had a zip that ran across the top; it was open. That bag discovered between the car's front seats, 5 or 6 inches behind the gear stick, apparently resting on the hand brake.

Photos used in evidence showed the scene where Mr. Manuofetoa is seen arrested, detained face down on the ground in handcuffs.

“One other detail must be noted. It is the presence of the cigarette lighter on the lap of Mr. Havea,” stated the judge.

Disputed possession

In addition, there was no dispute as to either the final weight of the illicit drugs or that the glass pipe was an illicit drugs utensil. All defendants disputed possession.

In his Reasons for the Verdicts the judge stated that in Mr. Manuofetoa's case, tthe Crown's evidence came essentially from Officer Fifita. Exhibit 2, on page 22 Court Book, showed the front bumper of the unmarked police car he was driver of, parked behind the Toyota and the Mazda, after he and his other colleagues, all in plain clothes, raided the address that day. On arrival he exited his vehicle in short order and was already moving to the Toyota where he saw Mr. Manuofetoa with his left arm on the roof of that car.

“Officer Fifita's evidence was that Mr. Manuofetoa thrust his arm out side ways, and he saw the item, which proved to be the packet of cannabis in question, thrown by him. What the Officer effectively described was that it skidded down the back of the car and off the trunk to land a few feet to the rear of that vehicle. It can be seen clearly in the bottom image of that same page of photographs in the Court Book. The contention on Mr. Manuofetoa's part was that he had not had that item. It was thrown by Mr. Guttenbeil out the window of the Mazda who sat in the driver's seat of that car. This happened as the Officer approached Mr. Manuofetoa .

“Mr. Talanoa also gave evidence for Mr. Manuofetoa of a confession by Mr. Guttenbeil to this effect, made in the police cells later that day. Mr. Havea, cross-examined by Mr. Manuofetoa, gave evidence he saw that packet of cannabis thrown across his body and out the car window, by Mr. Guttenbeil. While, Mr. Guttenbeil in his evidence stated he threw the packet of cannabis in question. Mr. Manuofetoa also made the point that there was no evidence of fingerprints to link him to the exhibit, he stated.

Guilty

The judge was also quite certain that the absence of fingerprint evidence to link Mr. Manuofetoa to the packet of cannabis did not diminish the strength of the Crown's case against him. The packet of cannabis in question was recovered from a position consistent with both versions.

“I preferred Officer Fifita's for the following reasons: whilst the packet was recovered from a position consistent with both accounts, to have arrived there, as explained on the defence case, would have meant Mr. Guttenbeil effectively throwing it at the feet of Officer Fifita, who was then approaching Mr. Manuofetoa; what is clear from the photographs, exhibit 2, Court Book pages, Mr. Guttenbeil had his car door window down at the time. If he wanted to get rid of cannabis in his possession without being caught by the police, it was far more likely that he would attempt to dispose of it out of his window and not the other side of the car.

“At the same time, Officer Fifita's account was clear. It was consistent with Mr. Manuofetoa being surprised by the sudden appearance of a police officer when he, Mr. Manuofetoa, was caught in broad day light with the packet of cannabis in his left hand, the hand nearest the officer. There being nowhere for him to hide it and no easy means of disposing of it, he attempted the least bad option, or so he hoped.

“In respect of the allegations Mr. Havea and Mr. Guttenbeil faced, The Crown's case was simple. They had been caught red-handed sitting in their car, the eight small packets of cannabis with the pipe in an open bag between them, while they were parked up together. At trial, Mr. Havea gave evidence that he did not know what was in the bag. Mr. Guttenbeil gave evidence it was Mr. Havea's bag, the judge stated.

The judge was also entirely sure that both had knowledge and control of the bag and its contents.

“In addition, Mr. Havea had a lighter in his lap. and there were no cigarettes or packets of cigarettes or tobacco to explain the presence of the lighter. The denials as to knowledge by either were, in the circumstances, unrealistic and unbelievable,” he stated.

"I came to the certain view on the evidence the Crown adduced, they both had been caught by police sitting in a car, where they had been smoking cannabis that day; in the pipe found in the bag between them, which was also where they kept the cannabis."

The judge then found the trio guilty of the counts against them.

Jail

Mr. Manuofetoa was sentenced at the conclusion of the trial without the need for a pre-sentence report. He was already serving a sentence of 20-months' imprisonment for an offence he was sentenced to in October 2023. The final eight-months were suspended.

He was then sentenced in December 2023 for possession methamphetamine and a further 12-months were added to his earlier sentence. The five and a half months imprisonment is to run concurrent with the term of 32-months he is already serving.

Meanwhile, Mr. Havea and Mr. Guttenbeil both requested pre-sentence reports, which why their cases were adjourned to 5 April.

For Mr. Havea he had a previous conviction for offences of unlawful possession of ammunition and drug utensils. He was sentenced on 3 November 2022 to two months ammunition, one month for the utensil to be served concurrently, thus two-months was fully suspended for one year.

The suspended sentence of two-months must be activated. He will serve two-months' imprisonment, then six months for the instant offences. Those sentences were backdated to the date of his first remand, with no part suspended.

“As for Mr. Guttenbeil, he had a previous conviction for which he was given a partial suspended sentence. He breached that by committing this offence, in which an element of the suspended portion of that sentence was that he completes a drug awareness course. The probation officer reported that he failed to undertake it. He is assessed as being at a high risk of reoffending and described as showing no remorse.

“On 25 August 2021, he was sentenced to one year and 10-months' imprisonment for two offences of possession of methamphetamine; 0.13 grams and 1.13 grams. The last 10-months was suspended, on conditions for two-years. He breached the terms of his suspended sentence by committing these offences during the operational period of the suspension and failing to complete a drug awareness course.

The judge ordered that the 10-months sentence will therefore be activated. He must serve that sentence before his nine-months sentence for the instant offences. At the same time, no part will be suspended but is back dated to the date of his first remand in custody.