Police v Chan Chui [2008] WSCA 11; CA 15 of 2007 (19 September 2008)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA15/07

BETWEEN:

THE POLICE
Appellant

AND:

PATRICK NICKY CHAN CHUI
of Ululoloa.
Respondent

Coram: The Honourable Justice Baragwanath
The Honourable Justice Slicer
The Honourable Justice Fisher

Hearing: 12 September 2008

Counsel: L.Petaia and P.Chang for the Appellant
R.Papalii for the Respondent

Judgment: 19 September 2008

JUDGMENT OF THE COURT

The Appellant seeks review of a penalty in the form of a fine of $650.00 imposed upon the respondent’s convictions for narcotics and firearm offences. The grounds of appeal claim the penalty to be manifestly inadequate and inconsistent with the appropriate range of penalties for like offences.

Facts:

The respondent was convicted, following trial of the possession of:

(1) 3 marijuana ‘joints’
(2) a glass pipe for the purpose of the commission of an offence against the Narcotics Act 1967
(3) a copper pipe for like purpose
(4) possession of 54 rounds of .22 ammunition contrary to the Arms Ordinance 1960 s.13.

The trial had required the prosecution to establish the nature and provenance of the implements commonly associated with the use of amphetamine which required a deposition hearing involving the attendance of an expert witness from New Zealand.

The informations had been laid following an authorized police entry into and search of the respondent’s home on 6 February 2008, when the offending objects were found. There was no suggestion of any commercial involvement in narcotics and the sentencing court accepted that the marijuana and implements were for personal use. No firearm was located. The prosecution established that the 22 ammunition was compatible with both a rifle and a pistol, the latter being a prohibited weapon but there was no evidence to suggest that it was used for a criminal purpose.

The respondent aged 42 was a first offender. He had led a good and productive life, and long been successful in business. He had separated from his wife and four children in 2001 and two of his three business units had been transferred to her as part of the property settlement. While he was in custody for these offences the remaining unit was taken over by his former wife. That loss, a consequence of his misconduct, was relevant to penalty. At the time of the sentence he had been living with his partner of some 6 years with two children from that relationship. He was employed in his mother’s business and responsible for the up keep of his family and the repayment of a bank loan. The reporting probation officer advised the court that the offender had shown remorse but had maintained his innocence. He was said to have regained control of his drug and alcohol afflictions. The reporting officer advised the Court that:

"As an alternative to imprisonment, the writer has canvassed community work. Patrick Chan Chui is in a position to attend such a sentence and has been assessed as suitable for Community Work. He also reported he would be in a position to meet a monetary penalty if required to by the court. The writer considers Patrick Chan Chui to be at a low risk of re-offending given his age and lack of any previous convictions."

The respondent provided to the court favourable references offered by the Secretary to the Catholic Archbishop and the Minister of Finance.

The respondent had served fifteen (15) days in custody pending the hearing.

Penalty:

The court imposed a pecuniary penalty of $650 specified as:

(1) Possession of a narcotic implement	$200.00.
(2) Possession of a prohibited implement	$150.00.
(3) Possession of a prohibited implement	$150.00
(4) Possession of ammunition	$150.00

The maximum penalties provided by Parliament were 7 years imprisonment, 3 months imprisonment and/or a fine of $200.00 and 6 months imprisonment and/or a fine of $200 respectively (Narcotics Act 1967 ss.18, 24; Arms Ordinance s.13).

Whilst marijuana is classified as a narcotic (Narcotics Act 1967 First Schedule) the courts have long recognized it to be of lesser harm than others such as heroin, cocaine, amphetamine or barbiturates.

Penalty and Consistency:

Counsel for the parties submitted to the Court helpful compilations, in précis form showing comparable sentences imposed. Those provided by the Appellant suggested that personal use possession of small quantities attracted a median sentence of four weeks imprisonment during the year 2007. Those identified by the respondent showed the use of suspended sentences used as a general and personal deterrent.

The learned Chief Justice was mindful of the range of appropriate penalties and of the existence of a tariff when he started in his sentencing remarks.

"In determining what should be the appropriate penalty in this case, an important factor to be borne in mind is the high degree of prevalence of narcotic offending within the community. As a consequence, the normal penalty for this type of offending has been imprisonment.

In this case, the following are features to note in mitigation. The accused is a first offender who appears to be remorseful. The testimonials on the accused also reflect on good parts of his character in spite of his present offending. He also appears to have been successful as a businessman and his family’s business depends on him. The quantity of marijuana substances found in his possession and for which he was found guilty was three joints. It also appears from the Court file that the accused was remanded in custody for 15 days when he first appeared in Court on the present charges. As this case proceeded to trial, there is no credit for the accused for a guilty plea."

The appellant sought to rely on the remarks of Nelson J in the case of Police v Semeatu Siaosi 2007 WSSC 98 to suggest that an immediate custodial term was warranted as a matter of sentencing policy and that here, the learned sentencing judge had departed from that policy. In that case Nelson J had stated:

"It is no secret that there is a current sentencing policy of this court in relation to the offence of possession of narcotics in particular possession of marijuana. That sentencing policy is to impose penalties of imprisonment unless there are exceptional circumstances requiring a different treatment. What amounts to exceptional circumstances will no doubt have to be evolved by the court on a case by case basis as every case is different. But the message that must be sent out to the youths and to the people of this country is that if you involve yourself in drug offending, whether in relation to marijuana or any other narcotic, you will receive an imprisonment term as a general rule and the only question for the sentencing judge is how long is appropriate."

The ground of appeal (2)(b) relevant to the issue of consistency states:

"2(b) the sentence imposed is manifestly inappropriate given the existence of earlier cases setting guidelines for the sentencing of narcotic convictions."

This Court ought respect the approach taken by trial judges who regularly deal with drug cases and their social consequences. Judges who regularly hear and determine matters involving individuals with their varying life experiences are best able to assess prevalence, social utility and consequence to the victim. They are best able to determine the effect on the public fabric. It would be inappropriate for this Court, on a prosecution appeal, to intervene in those areas of judicial discretion except in areas of legal principle or significant departures from the permitted range. As Justice Nelson observed in Semeatu (supra) ‘every case is different’. Here the learned sentencing judge was entitled to have regard to the fact that on otherwise respectable citizen had experienced incarceration, itself a form of future subjective deterrence.

As this is a prosecution appeal the appellate court should be slow to intervene (Griffiths v The Queen 1977 137 CLR 293). It is not appropriate for this court in this particular case to attempt to impose a mandatory regime. Primary judges are better able to assess the appropriate judicial response to a complex problem over a period of time in the light of them understanding of its development.

Ground 2 (b) ought be refused.

Manifest Inadequacy

Ground 2(a) of the Notice of Appeal claims error in that:

(a) The sentence imposed is manifestly inadequate given the seriousness of the charge and the existence of significant aggravating factors in this case.

Even if this court were to accept that a minimum of 4 weeks imprisonment was appropriate the fact remains that this appellant was effectively punished by two weeks imprisonment and a fine of $200.00 for his possession of marijuana. This is a prosecution appeal and the sentence does not, of itself, manifest error. Even had this court found error in principles it would remain open for it to respect the penalty appealed and re-impose one in identical terms. Here the appellant seeks an additional 2 weeks imprisonment. Appellate Courts ought not ‘tinker’ with the sentences of other judicial officers (House v The King 1936 55 CLR 499, Harris v The Queen [1954] HCA 51; 1954 90 CLR 652, Dinsdale v The Queen [2000] HCA 54; 2000 202 CLR 321). This was not a case requiring intervention as a matter of general principle.

Irrelevant Consideration

Ground 2 (c) of the Notice of Appeal that the states:

2 (c) His Honour erred in law and in fact in the weight given to the defendant as businessman being a significant mitigating factor.

The ground is misconceived. The learned Chief Justice was entitled to take into account the good character and subjective circumstances of the offender. He referred to the fact that the respondent had apparently been successful in business and that his mother defended on him on the conduct of the family business. No undue weight was given to his form of employment. The ground ought be dismissed.

The appeal is dismissed.

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher