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R v Kata [2010] TongaLawRp 8; [2010] Tonga LR 54 (11 June 2010)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 196/2009

R

v

Kata

Ford CJ
11 June 2010

Sentencing – importation and possession of illicit drugs – methamphetamine – imprisonment

The accused was a customs officer working for the Customs Department. He was found guilty by a jury on one count of importation of illicit drugs and one count of possession of illicit drugs contrary to sections 3 and 4(a) respectively of the Illicit Drugs Control Act 2003. The illicit drug in each case was methamphetamine. The maximum sentence under section 3 for the offence of importing an illicit drug was a fine of $1 million or imprisonment for a term not exceeding 30 years or both. The maximum sentence for possession of an illicit drug under section 4 was a fine of $750,000 or imprisonment for a term of 25 years or both.

Held:

1. In New Zealand, the Court of Appeal held that the amount of the illicit drug seized should be the basis for the measure of culpability and the approach should be based on the size, rather than the potential monetary returns, of the actual illicit drugs. Sentencing in New Zealand was largely governed by the provisions of the Sentencing Act 2002 (NZ) and, in relation to drug offending, the courts prescribed a Band of sentences for the different classes of drugs in which the scale of culpability was ranked from the lowest to the highest. In reference to methamphetamine importation, the court in Fatu held that Band Four which involves the importation of very large commercial quantities (500g or more) would be 12 years to life imprisonment. In this case the quantity of methamphetamine was 17.6 kg which was at the top end of the New Zealand scale.

2. A fine would not be a reasonable or appropriate sentence because of his personal circumstances and also because of the extremely serious nature of the charges he was found guilty of. The starting point for a charge of importing methamphetamine was set at 15 years imprisonment and for a charge of possession of methamphetamine 7 years imprisonment. Those starting points should then be adjusted up or down to properly reflect the mitigating and aggravating features of the individual case.

3. The court was satisfied that the accused was fully aware of what was going on and that he was actively involved not only in the importation of the methamphetamine but also in the concealment of the drugs while they were in Tonga and in all the planning associated with the proposed shipment of the consignment to Australia. In this regard, he took advantage of his position as a customs officer and he breached the trust and confidence of his employer.

4. The accused's role in the importation network could properly be described as a local facilitator but not a manufacturer or mastermind of the importation.

5. Having regard to all the factors, the court imposed the sentences as follows: on count 1 (the importation charge) he was convicted and sentenced to 14 years imprisonment. On count 2 (the possession charge) he was convicted and sentenced to 7 years imprisonment. The sentences were concurrent making 14 years imprisonment in total.

6. The court further order pursuant to section 32(2)(b) of the Illicit Drugs Control Act 2003 for all the methamphetamine involved in this case, including the red liquid and containers, to be disposed of in such manner as the police authorities deemed fit.

Cases considered:

Anders v Police Department [1974-80] Tonga LR 60
Hokafonu v R [2003] Tonga LR 249
Press Release [2001] Tonga LR 333
R v Fatu [2006] 2 NZLR 72 (CA)

Statutes considered:

Drugs and Poisons Act (Cap 79)
Illicit Drugs Control Act 2003
Sentencing Act 2002 (NZ)

Counsel for the Crown : Ms 'Atiola
Counsel for the accused : Mr Tu'utafaiva

Sentencing remarks

[1] You are appearing for sentencing this morning having been found guilty by a jury on one count of importation of illicit drugs and one count of possession of illicit drugs contrary to sections 3 and 4(a) respectively of the Illicit Drugs Control Act 2003. The illicit drug in each case is methamphetamine.

[2] The maximum sentence under section 3 for the offence of importing an illicit drug is a fine of $1 million or imprisonment for a term not exceeding 30 years or both. The maximum sentence for possession of an illicit drug under section 4 is a fine of $750,000 or imprisonment for a term of 25 years or both. The punishments are without doubt amongst the very highest in the statute books apart, of course, from the death penalty.

[3] In terms of sentencing, no distinction is made between the different types of drugs. All illicit drugs are listed together in Schedule 1 to The Illicit Drugs Control Act.

[4] You were a customs officer at the relevant time working for the Customs Department. The jury heard how on the 12th and 21st of May 2009 you caused or arranged for two consignments of methamphetamine to be imported into the Kingdom. Using your influence as a customs officer you uplifted the two consignments from DHL after they had arrived in the country on an Air New Zealand flight.

[5] The methamphetamine had been concealed in 12 red wine bottles and 9 foil bladders. The consignment had been described as "wine samples" and the court heard that the labelling and packaging of the bottles were so professional that the staff working for the importing agencies truly believed that they contained nothing other than red wine.

[6] Much later it was ascertained by the analysts that the wine bottles and foil bladders contained a total of 30 litres of liquid which in turn converted to a total of 17.6 kgs of methamphetamine hydrochloride. The court was told that methamphetamine hydrochloride crystals is the form in which methamphetamine is typically sold.

[7] The street value of the consignment, according to the expert witnesses from the Auckland Drugs Squad, would have ranged between NZ $10.2 million and NZ $18 million with one of those experts saying that the value in New Zealand would have been NZ $17-18 million. Det Sgt Michael Beal told the court that he had been with the New Zealand police force for 25 years and this was the second largest seizure of methamphetamine that he had ever come across.

[8] The Tongan police had received information that methamphetamine was being imported into Tonga and they had also received confirmation that you were involved. Based on the information they had received, the police took out a search warrant over your property. The jury heard that on 21 September 2009 some 30 or 40 police officers, including officers from the New Zealand police, descended upon your residence at the Bypass Road and proceeded to carry out a complete search of the buildings on your allotment.

[9] Initially you denied having any illegal substances on your property but after the kitchen of your home had been searched by the police and the police dog, you obviously realised that the game was up. You then approached the officer in charge of the search and took him out to a cottage at the rear of the main house where the illicit drugs were located. At that stage the wine bottles and foil bladders had been placed into a suitcase and an esky. The evidence, which I have no doubt the jury would have accepted was that for most of the intervening period from when the drugs had arrived in Tonga back in May 2009 until the search in September, the consignment had been buried in a hole which had been dug in the backyard of your property. The jury was shown a photograph of the hole. The evidence indicated that you had removed the bottles from the hole a day or two before the police search and the consignment had then been placed in the suitcase and esky in preparation for export on the vessel MV
Captain Tasman which was shortly to depart the port of Nuku'alofa bound for Australia.

[10] When interviewed by the police, you claimed that you had no idea the liquid in the bottles and foil bladders contained methamphetamine. You did not tell the police anything about your involvement in the importation of the consignment back in May 2009. What you told them was that the drugs the police found on your property under their search warrant on 21 September 2009 had only come into your possession the previous Wednesday evening. You said that they had been brought to your home by two men and left there for you to look after. You named one of the men as Sione Filipe, an old acquaintance of yours from Sydney, and the other person, whose name you said you did not know, was a Chinese man who had been introduced to you as "Chris".

[11] You told the police that you had no idea how the consignment had been brought into Tonga. You said that Sione Filipe and the Chinese man had simply dropped the suitcase and esky off at your home and had told you that they would return sometime later to pick them up.

[12] When you gave evidence before the court, you freely admitted your involvement in importing the consignments on the 12th and 21st of May 2009 but you continued to claim that you understood the substance was nothing other than red wine. Clearly the jury disbelieved what you said in your statement to the police and they disbelieved your sworn evidence. I have no doubt that the jury's decision was the correct one. Through your very capable lawyer you raised every possible defence and legal technicality that was open to you. The efforts of the Solicitor General, Mr Kefu, in successfully prosecuting this first case in Tonga involving methamphetamine deserve to be publicly acknowledged.

[13] I have already stated that the maximum sentence for drug offending in the Kingdom is the highest outside the death penalty. My perception is that historically the courts in Tonga have taken a more uncompromising line towards illicit drugs than many other jurisdictions in the Pacific. The first recorded drug case to come before this court was 32 years ago. It is reported in the Tonga Law Reports as Anders v Police Department [1974-80] Tonga LR 60. In that case Justice Hill said this:

"At the present, Tonga is reasonably free from this curse (drugs). However, it exists in a number of neighbouring countries in an aggravated form and I want to make it quite clear that I am going to do my utmost to make sure that it does not spread here. And I want everyone to understand that if anybody is convicted of possessing a substantial amount, that is more than two or three cigarettes, they will certainly go to prison as far as I am concerned."

[14] The judge then made a plea to magistrates to take notice of what he was saying and he went on to give the first guidelines as to the type of sentencing that persons possessing or dealing in drugs could expect to receive. In those days the maximum sentence that could be imposed under the old Drugs and Poisons Act was a fine of $2000 or 10 years imprisonment or both. Methamphetamine was unknown but in reference to dealings involving hard drugs, the judge said:

"If there is any attempt to supply or import hard drugs that is heroin, cocaine or LSD, the standard sentence will be around seven years up to the maximum which I can impose which is 10 years. . . . I want everybody to know that there are not going to be drugs in Tonga if the courts can stop it."

[15] The next development came on 1 June 2001 when the then Chief Justice, Hon Justice Ward, took the unusual step of issuing a Press Release relating to sentencing for drug offences. The Press Release appears in the 2001 Tonga Law Reports at page 333. The Chief Justice made it clear that anyone who deals in hard drugs can expect to go to prison for a very substantial length of time.

[16] One of the most significant cases to come before this court involving a large quantity of "hard drugs" is reported in the Law reports as Hokafonu v R [2003] Tonga LR 249. That case related to a consignment of 100 kg of cocaine which was concealed in a container load of boxes of floor tiles. The container which had come from Panama was transshipped in Auckland and arrived in Tonga in September 2001. The evidence was that the consignment was eventually destined for either Fiji or Australia. The principal accused was convicted and sentenced to 10 years imprisonment on charges of conspiracy to import and export cocaine. 10 years imprisonment was the maximum sentence that could be imposed.

[17] On appeal, the Court of Appeal upheld the maximum sentence of 10 years imprisonment and took the opportunity to say this:

"Tonga has until now been relatively free of the curse of illegal drugs. If that is to be maintained, the courts must have the power to impose penalties sufficiently severe to deter drug dealers using Tonga as a staging post for importations into other countries and to deter them from importing illicit drugs into Tonga for sale here. Present maximum penalties are inadequate to achieve that objective."

[18] No doubt in response to that plea from the Court of Appeal, Parliament in August 2003 passed the new Illicit Drugs Control Act which increased the maximum fine for offences involving illicit drugs to the figures I have already mentioned and tripled the maximum sentence of imprisonment. It is against that background that I am called upon today to impose a sentence which will fairly reflect the determination of both the legislature and the courts to deter Tongan people from any involvement whatsoever with illicit drugs.

[19] The jury heard something about the effects of methamphetamine. Det Sgt Michael Beal who has had extensive experience in training members of the New Zealand police involved in drug investigations explained that methamphetamine affects and changes those parts of the brain that control a person's mood and vision. He described the drug as highly addictive and he explained that its use has resulted in serious crimes as well as serious social issues. As the detective put it, methamphetamine has contributed to everything from family and domestic violence to very serious and violent murders.

[20] The prosecution has presented helpful written submissions in relation to this sentencing. The submissions were specifically requested because this is the first methamphetamine sentencing case to come before the courts. Counsel for the prosecution has analysed a number of the more recent New Zealand cases involving methamphetamine noting that the leading authority on the subject is the decision of the New Zealand Court of Appeal in R v Fatu [2006] 2 NZLR 72. Methamphetamine in New Zealand is a Class A drug and the maximum sentence for any offence involving a Class A drug is life imprisonment.

[21] The Court of Appeal held that the amount of the illicit drug seized should be the basis for the measure of culpability and the approach should be based on the size, rather than the potential monetary returns, of the actual illicit drugs. Sentencing in New Zealand is very largely governed by the provisions of the Sentencing Act 2002 and, in relation to drug offending, the courts prescribe a Band of sentences for the different classes of drugs in which the scale of culpability is ranked from the lowest to the highest. In reference to methamphetamine importation, the court in Fatu held that Band Four which involves the importation of very large commercial quantities (500 g or more) would be 12 years to life imprisonment. In this case, as I have already indicated, the quantity of methamphetamine we are concerned with is 17.6 kg which would be right at the top end of the New Zealand scale.

[22] You are 42 years of age, married with three children and one young foster daughter. You also have a young grandson. All the family lives together at your home on Bypass Road. You began working as a customs officer in 1998. Prior to then you worked in the Government Store at Fasi. At the time of your offending you held the position of Officer in Charge at the Manifest and Export Division of the Customs Department. You were earning approximately $300 per fortnight.

[23] The Probation Officer reports, and your counsel has confirmed this morning, that you accept the correctness of the decision made by the jury and you now take full responsibility for your illegal behaviour. He confirms that you express remorse and deeply regret your actions and you now realise that your involvement in this illicit drug transaction has ruined your reputation and affected your life and the life of your family forever.

[24] The Probation Officer has attached to his report a reference from the Vicar General & Administrator of the Catholic Cathedral of the Immaculate Conception which is helpful. He has also attached a very moving letter written by your wife 'Ofa. With her permission I am now going to read your wife's letter in open court in the hope that it will make you fully appreciate the enormity of the crime you have committed and its effect upon your family. I am also hopeful that if this letter or part of it gets published it may help deter other young family men like yourself from taking the risk of entering into some criminal activity just in the hope of making what the probation officer appropriately refers to as some "dirty money".

[25] The letter as translated from Tongan into English reads:

Dear Sir,

Re: Pati Kata

I respectfully write regarding the above named.

I wish to inform you of the following which may assist Your Honour in considering an appropriate sentence for the above named who happens to be my husband.

My husband currently has a loan at MBF Bank and he was the only one employed and paying off the loan. There are goods held as security. We also have a foster child who is his sister's child. The child is mainly ill as the child was very much attached to my husband, more than anyone else at home and I have grave fears for the child. Even now there are times when the child refuses to eat but when she sees Pati she is lively and active.

The other issue is one of our children who should continue with further studies but no longer wishes to do so as Pati paid for the child's education. The child's mental state is affected because of the situation her father is in.

The situation should he be sentenced to imprisonment?

In relation to the loan, I have no source of income to pay off the loan. We had totally relied on my husband in all our church, family and community obligations. There are times when I myself entertain strange ideas. And there are times when I cannot get any rest. And there are times when nothing is interesting anymore because of the difficulties that my family is experiencing.

I am therefore praying for mercy and leniency to be bestowed upon this poor man. To impose any sentence but that of imprisonment because of the problems we are currently encountering as well as our childrens' future. And I sincerely hope that we do not encounter these problems in future.

I therefore apologise before Your Honour for what I'm asking. But I am doing this out of remorse and I do hope that this never occurs again in future.

Respectfully,

"Ofa Kata"

[26] It is impossible not to feel immense sympathy for your wife and your family. How they are going to survive with you in prison, I do not know but the sad reality is that you should have stopped and thought about those things before getting yourself involved in such a major criminal activity as the importation of illicit drugs.

[27] When looking at your own family situation and taking that into account for sentencing purposes there is, of course, another issue to reflect upon and that is this. Imagine what the consequences might have been to countless other unsuspecting families had the police not intervened when they did so as to prevent the drugs you were dealing with from eventually reaching their final destination. You are not charged with those consequences, of course, but it is certainly a sobering thought to reflect upon when looking at the inevitable tragic impact the case is going to have on your own little family.

[28] Crown counsel submits that a fine would not be a reasonable or appropriate sentence given your personal circumstances. I would agree with that submission not only because of your personal circumstances but also because of the extremely serious nature of the charges you were found guilty of. Turning to the alternative of imprisonment, it seems to me, with respect, that the recommendations included in the submissions of Crown counsel are entirely appropriate. I would, therefore, fix the starting point for a charge of importing methamphetamine at 15 years imprisonment and for a charge of possession of methamphetamine 7 years imprisonment. Those starting points are then to be adjusted up or down to properly reflect the mitigating and aggravating features of the individual case. I am obliged to Crown counsel for identifying the main mitigating and aggravating features.

[29] Without doubt, the most serious aggravating feature is the sheer quantity of the illicit drug involved in these charges. We are talking about 17.6 kg of methamphetamine hydrochloride crystals and that is the second largest seizure the New Zealand Drug Squad Detective who gave evidence here in Tonga had ever come across in his 25 years with the New Zealand police.

[30] The method of concealment indicates a highly sophisticated operation. The process of having methamphetamine hydrochloride dissolved to appear in the form of red wine liquid and then having that same liquid bottled and sealed to appear as normal bottles of red wine showed a very professional high level of sophistication and organisation. I agree with Crown counsel's submission that all the evidence pointed to your activity being part of a regional or international network most probably involving shipment and transshipment from Asia to the Pacific and Australia. Organised criminal activity on this type of scale calls for a substantial sentence to mark its gravity and to act as a deterrent to like-minded offenders.

[31] I am satisfied that you were fully aware of what was going on and that you were actively involved not only in the importation of the methamphetamine but also in the concealment of the drugs while they were in Tonga and in all the planning associated with the proposed shipment of the consignment to Australia. In this regard, you took advantage of your position as a customs officer and you breached the trust and confidence which had been placed in you by your employer.

[32] There are some mitigating factors and these have been highlighted by Mr Tu'utafaiva.

[33] Undoubtedly, the most significant of these is the concession made by Crown counsel that your role in the importation network can properly be described as, using counsel's words, "a local facilitator but not a manufacturer or mastermind of the importation." On the evidence, I am satisfied that that concession was properly made.

[34] You are entitled to credit for having no previous convictions but you are not entitled to credit for a guilty plea because the matter had to go to trial.

[35] Crown counsel acknowledges that there seems to have been no intention to sell or distribute the methamphetamine in the Kingdom but the plan was to use Tonga as a transit point and then smuggle the methamphetamine into Australia. In my view, however, little weight can be placed on that submission as a mitigating factor. As I have already noted, the severe penalties Parliament has now provided for in the legislation came largely in response to the Court of Appeal's plea for power to impose sentences sufficiently severe to deter international drug dealers from using Tonga as a staging post and that must be my objective.

[36] It is to your credit that you now accept the jury's verdict and that you are truly remorseful and apologetic for your illegal behaviour.

[37] The balancing exercise in a case of this nature is never easy but I can say that had you been one of the ringleaders or the "mastermind" of the enterprise then I would have been looking at a sentence of at least 20 years imprisonment. The fact, however, that you were not the mastermind or ringleader is a proper mitigating factor and, in my view, it more than offsets the additional period I would have added to the sentencing starting point in recognition of the very large quantity of methamphetamine involved.

[38] Having regard to all these factors as well as to the comprehensive submissions made on your behalf by Mr Tu'utafaiva, the sentences I now impose are as follows: On count 1 (the importation charge) you are convicted and sentenced to 14 years imprisonment. On count 2, which is the possession charge, you are convicted and sentenced to 7 years imprisonment. The sentences are concurrent making 14 years imprisonment in total.

[39] I have given careful consideration as to whether any part of the sentence should be suspended. My view may have been different had you pleaded guilty or had you cooperated with the authorities and disclosed information helpful to them in identifying and prosecuting other offenders but there is no evidence to this effect before the court. In the circumstances, I do not consider it to be an appropriate case for suspension of any part of the sentence I have just imposed. I am prepared, however, to make this concession. The commencement date for the 14 year sentence will be backdated to 21 September 2009 in recognition of the fact that you have been held in custody continuously since that date.

[40] Finally, as requested by Crown counsel, I hereby make a further order pursuant to section 32(2)(b) of the Illicit Drugs Control Act 2003 for all the methamphetamine involved in this case, including the red liquid and containers, to be disposed of in such manner as the police authorities deem fit.