Fuimaono v Attorney General [2021] WSCA 13 (14 December 2021)

IN THE COURT OF APPEAL OF SAMOA
Fuimaono v Attorney General [2021] WSCA 13 (14 December 2021)

Case name:	Fuimaono v Attorney General
Citation:	[2021] WSCA 13
Decision date:	14 December 2021
Parties:	ANA TA’IMUA FUIMAONO (Appellant) v ATTORNEY GENERAL (Respondent)
Hearing date(s):	09 December 2021
File number(s):	CA 03/21
Jurisdiction:	CRIMINAL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Hansen Honourable Justice Harrison Honourable Justice Vaai
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is allowed. The sentence of two years imprisonment is quashed. In its place we impose a sentence of 18 months imprisonment.
Representation:	U.I Sapolu and J Fuimaono-Sapolu for the Appellant F Ioane and V Faasii for the Respondent
Catchwords:	Possession of methamphetamine – possession of cannabis – possession of utensils – drug offences – custodial sentence – appeal against sentence
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016, ss. 176(1)(b); 180(4) Narcotics Act 1967
Cases cited:	Knedler v Commissioner of Inland Revenue [2017] NZHC 2888; Police v Pene [2015] WSSC 44; R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72; Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648.
Summary of decision:

CA 03/21

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINU’U

IN THE MATTER OF:

an appeal pursuant to sections 176(1)(b), 180(4) of the Criminal Procedure Act 2016

BETWEEN:

ANA TA’IMUA FUIMAONO, female of Vaiusu and Vailu’utai.

Appellant

A N D:

ATTORNEY GENERAL

Respondent

Coram: Honourable Justice Hansen
Honourable Justice Harrison
Honourable Justice Vaai

Hearing: 09 December 2021

Counsel: U I Sapolu and J Fuimaono-Sapolu for Appellant
F Ioane and V Faasi’i for Respondent

Judgment: 14 December 2021

JUDGMENT OF THE COURT

Introduction

1. The appellant was one of six defendants found guilty after trial of offences under the Narcotics Act 1967. She was convicted of possession of methamphetamine, three charges of possession of cannabis and a charge of possession of utensils for the purpose of drug offending. She was sentenced by Nelson J to two years imprisonment. She appeals against the sentence as manifestly excessive. An appeal against conviction was abandoned.

Facts

2. The charges were laid after the Police were called to a house in Fa’atoia where a party was in progress. The host gave evidence for the prosecution. He said the guests arrived separately. The appellant was first. She brought a bag of cannabis some of which she smoked with two of her co-defendants. She exchanged a portion of the cannabis for methamphetamine brought to the house by another defendant. She was identified as one of the main participants in smoking both cannabis and methamphetamine.
3. When searched, the appellant was found in possession of cannabis in different forms: twenty three cannabis cigarettes weighing in total 12.3 grams, loose leaf weighing 25.9 grams and two branches weighing 7.8 grams. The methamphetamine charge was for 2.0 grams of methamphetamine possessed jointly by four of the defendants for the purpose of consumption at the time. It was part of a quantity brought to the house by one of the defendants.

Sentencing decision

4. Nelson J first fixed a sentence of twelve months imprisonment for the joint charge of being in possession of two grams of methamphetamine. He adopted a starting point of two years which he reduced by six months to reflect the appellant’s previous good character and by a further six months to reflect a formal penalty paid by her family to the village where the offending took place.
5. For the cannabis offending, Nelson J began with a sentence of six months on each charge which he uplifted to cumulative sentences of 12 months to reflect evidence that the appellant was dealing in cannabis on the day. From the starting point thereby reached of three years, he deducted 12 months to take account of mitigating factors, resulting in an end sentence of two years.
6. Nelson J adopted the same approach to the charge of possessing utensils, deducting twelve months from a start point of 18 months to reach a sentence of six months. This sentence and the sentence for methamphetamine possession were ordered to be served concurrently.
7. In the result, the appellant’s sentence was two years imprisonment for the cannabis offences and lesser concurrent sentences for the other offending.

Appellant’s submissions

8. Ms Sapolu argued that the starting points used by the Judge for both the methamphetamine and cannabis offences were too high and that he failed to have sufficient regard for mitigating circumstances, in particular the personal circumstances of the offender. We were referred to the New Zealand Court of Appeal Judgment in Zhang v R^[1] which modified the sentencing bands for methamphetamine previously laid down by the Court of Appeal in R v Fatu^[2] and which provided more general guidance for sentencing for drug offending. It was submitted that the approach in Zhang would have allowed the Judge to adopt a lower starting point than two years imprisonment.
9. The starting point for the cannabis offending was compared to 15 months adopted by Sapolu CJ in Police v Pene^[3] for possession of cannabis leaf and seeds. In that case the prisoner had been seen selling cannabis in a public place and was found in possession of sufficient cannabis (25.5 gram) to make 36 cigarettes or joints. It was submitted that an equivalent starting point should have been adopted in this case, arguably, said Ms Sapolu, even less as, unlike the offender in Pene, the appellant was jointly charged and was not selling in a public place.
10. As to mitigating circumstances, counsel submitted that the Judge did not acknowledge and appeared not to have given weight to the appellant’s pregnancy and the impact of a prison sentence on her dependants. She is a solo mother with an eleven-year-old son. She is the sole breadwinner for her family which includes her stepmother. Ms Sapolu also argued there was evidence that the appellant was addicted to drugs and that her rehabilitation should have been a factor in sentencing.
11. Having regard to these matters, Ms Sapolu submitted a non-custodial sentence should have been considered and, if imposed, a prison sentence should have been less than two years.

Crown’s position

12. For the Crown it was submitted that the starting points adopted by the Judge for both methamphetamine and cannabis offences were in keeping with the sentences imposed in Samoan Courts for similar offending. For this purpose, we were referred to an analysis of sentences imposed for possession of equivalent quantities of methamphetamine and cannabis over the period 2012-2021. The starting points adopted were said to be within the range disclosed by sentencing decisions over that period.
13. For the Crown it was further submitted that mitigating factors personal to the appellant had been adequately reflected in the discounts applied by the sentencing Judge. The appellant’s pregnancy was said not to warrant any additional allowance unless it was associated with unusual medical needs that would make the sentence disproportionately severe as was the case in Knedler v Commissioner of Inland Revenue^[4].

Discussion

14. In our view the starting points used by Nelson J for the purpose of sentence, while stern, were within the available range and in themselves provide no basis for challenging the end sentence. The three year starting point for the cannabis charges was in line with those adopted for offending involving similar quantities and a commercial motivation.^[5] The evidence that the appellant was trafficking in cannabis was established by the nature and quantity of the cannabis in her possession and the circumstances in which it was found.
15. The methamphetamine offending did not appear to involve a commercial element; the appellant was in possession for the purpose of personal use. She was not responsible for bringing it to the party. The starting point may be seen as harsh having regard to the approach now applying in New Zealand in virtue of Zhang. But it was within the range of sentences to which we were referred for similar offending and, as it did not impact on the end sentence, it is not an appropriate case for this Court to consider whether a change to the approach favoured by Zhang is warranted in Samoa.
16. There was nothing before Nelson J or this Court to substantiate the claim that the appellant is an addict. The pre-sentence report made no reference to drug dependency. It conveyed the clear impression that the appellant was actively engaged in the community, in gainful employment and that her involvement with drugs was out of character.
17. There is, however, one consideration which persuades us that, in the circumstances, a lower sentence is appropriate. The Judge did not acknowledge that the appellant was in the early stages of pregnancy when sentencing took place though her condition was disclosed in the materials before him. In itself, that is of no moment; as submitted on behalf of the Attorney General, pregnancy is not a reason to discount a sentence unless, for some reason, it would make the sentence disproportionately severe.^[6] However, as events have unfolded, that is what the consequence will be if the sentence remains in place.
18. We were told that the appellant gave birth on 5 November. She was released from prison for the birth and is entitled to remain at large for three months. At that point she will be recalled to complete her sentence. That would be for a period of two months if she is granted parole having completed half her sentence. In our view, the separation of the appellant from her infant child for that period would result in a disproportionately severe sentence which, had he turned his mind to it, the Judge could and likely would have avoided without violating sentencing principles. A starting point of two and half years imprisonment for the cannabis offending would have been well within the available range and an end sentence of 18 months would fairly reflect the appellant’s culpability as well as her personal circumstances, circumstances which are entitled to be given greater weight on the approach urged on sentencing judges in Zhang.
19. For these reasons, in the unusual circumstances of this case, we are of the opinion that the end sentence should have been one of 18 months imprisonment.

Result

20. The appeal is allowed. The sentence of two years imprisonment is quashed. In its place we impose a sentence of 18 months imprisonment.
    

HONOURABLE JUSTICE HANSEN
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE VAAI

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^[1] [2019] NZCA 507; [2019] 3 NZLR 648.
^[2] [2006] 2 NZLR 72.
^[3] [2015] WSSC 44.
^[4] [2017] NZHC 2888.
^[5] See for example Police v Kolia Kolia [2012] Vaai J; Police v Vea Telea [2014] Sapolu CJ; Police v Steven Ioane [2016] WSSC 177.
^[6] Nedler v Commissioner of Inland Revenue [2017] NZHC 2888.