Police v Su'a [2018] WSDC 10 (3 September 2018)

IN THE DISTRICT COURT OF SAMOA
Police v Su’a [2018] WSDC 10

Case name:	Police v Su’a
Citation:	[2018] WSDC 10
Decision date:	03 September 2018
Parties:	POLICE (Informant) and MANE JUNIOR SU’A (Defendant)
Hearing date(s):
File number(s):	D2272/18
Jurisdiction:	District
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	DCJ Fepuleai Ameperosa Judge Roma
On appeal from:
Order:	On the one charge of possession of a utensil for the purpose of committing an offence, you are convicted and ordered to come up for sentence within 12 months if called upon.
Representation:	Snr Sgt K. Komiti for Prosecution
	Ms H. Wallwork for the Defendant
Catchwords:	Possession of a utensil – the offending – aggravating factors – mitigating factors – consequences of a conviction – result
Words and phrases:
Legislation cited:	Narcotics Act 1967 s13(b) Sentencing Act 2016 s69 & s70
Cases cited:	Police v. Vai [2009] WSSC 9 (9 February 2009); Police v. Tulua [2016] WSSC 123 (29 June 2016); Police v. Calango [2018] WSSC 31 (8 March 2018) (Police v. Maposua [2010] WSSC 85 (28 July 2010); Police v. Webber [2016] WSSC 37 (18 March 2016); Police v. Tevaga [2016] WSSC 38 (21 March 2016); Police v. Barlow [2018] WSSC 163 (28 November 2017); Police v. Kamisi [2018] WSSC 73 (11 May 2018);). Police v. Sumeo [2013] WSSC 36 (27 May 2013), Police v. Robles (19 June 2018); Chang v. Attorney General [2018] WSCA 3 (13 April 2018)); Police v. Papalii [2011] 132 (25 November 2011);
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

MANE JUNIOR SU’A male of Lepea.
Defendant

Representation: Snr Sgt K. Komiti for Prosecution
Ms H. Wallwork for the Defendant

Sentence: 3 September 2018

SENTENCE OF JUDGE ROMA

Charge

1. You appear for sentence on 1 charge of being in possession of a utensil for the purpose of committing an offence under the Narcotics Act 1967. The charge is brought under s13 (b). The maximum penalty is an imprisonment term of 7 years or a fine of $20,000.00.

Offending

2. In early April this year, an employee and Building Manager for the Ministry of Justice and Courts Administration (MJCA) discovered that he had lost a personal cheque book. Upon inquiries, he found out on 12 April 2018 that it was with you, and that you had been using it to purchase goods at a Chinese Supermarket near town.
3. He approached you and asked for his cheque book, which you returned. When further asked how you used the cheque book and funds in his account, you admitted having used it on ‘ice’ or methamphetamine. You also told him how 2 of your fellow Court officers were involved. Later that afternoon, you handed to him an item wrapped in an A4 sheet of paper. That item was a glass pipe.
4. The matter was reported to police and when interviewed, you told police that the pipe was used to consume methamphetamine.
5. In the pre sentence report, you confirm having admitted to the Building Manager that the money you used was to buy methamphetamine. You confirm having casually told him in a conversation later that afternoon about the pipe that you had, and handed it to him on his instructions. He assured you that he would hold onto it. Unfortunately for you, he gave the utensil to the ACEO Courts and reported your discussions. The ACEO Courts, in turn reported the matter to Police.

Aggravating Factors

6. The aggravating factors relating to your offending are:
   • (i) The utensil being a glass pipe was obviously for the purpose of smoking methamphetamine, a highly addictive and destructive drug for users;
   • (ii) You had the utensil in your possession within the premises of MJCA, where you have been working as a Deputy Registrar for the Supreme Court and where you know, the Courts have been dealing with offenders including those appearing for similar offending.
7. There are no aggravating factors personal to you as Offender.

Mitigating Factors

8. Compared to other cases of similar offending, there was one utensil found in your possession. There are also no other charges relating to possession of any narcotic substances.
9. The following are mitigating factors personal to you as offender:
   • (i) Your guilty plea entered at the earliest opportunity. It followed an admission to police when the matter was reported and your full cooperation with their investigation;
   • (ii) I accept that you are genuinely remorseful. It is consistent with your admissions to both Police and the Probation Service;
   • (iii) Personal Circumstances – You are 22 years of age. You have had a good level of education. You graduated with a Bachelor’s Degree in Management Studies from NUS, a course which you continued to pursue and complete whilst already employed by MJCA as a Court Officer. You are currently on suspension from work as a result of your offending, and depending on the sentence this Court imposes, there is a real likelihood that your current employment will be terminated. You admit to having started taking on ‘ice’ in 2017 but only during social events. The references from Father Paulo Filoialii, a close family friend and your Spiritual father, your Pulenuu, your work colleagues including the former ACEO Courts, and 2 of many lawyers whom you have had dealings with in your work, all speak highly of your good character, your impressive, professional and respectful work ethic, and how your offending has come as a surprise to everyone of them. You are a first offender.

Discussion

10. Up until the Narcotics Amendment Act 2009, the maximum penalty for possession of utensil(s) for the purpose of committing an offence under the Act had been 3 months imprisonment or a fine of $200.00. The increase and prevalence of narcotic related offending over the years and continuing risks it poses to the community led to the increase in penalties. As a result, it is now one of the most serious offences within the jurisdiction of the District Court.
11. Depending on the circumstances of each case, and the number of and accompanying charges, sentences imposed by the Courts for possession of utensils have ranged from non custodial terms of supervision (Police v. Vai [2009] WSSC 9 (9 February 2009); Police v. Tulua [2016] WSSC 123 (29 June 2016); Police v. Calango [2018] WSSC 31 (8 March 2018) to lengthy sentences of imprisonment (Police v. Maposua [2010] WSSC 85 (28 July 2010); Police v. Webber [2016] WSSC 37 (18 March 2016); Police v. Tevaga [2016] WSSC 38 (21 March 2016); Police v. Barlow [2018] WSSC 163 (28 November 2017); Police v. Kamisi [2018] WSSC 73 (11 May 2018)).
12. Where custodial sentences have been imposed, the defendants had also faced a number of more serious drug related charges such as possession of methamphetamine and marijuana, and there were usually multiple utensils involved.
13. But the Court has also granted discharge without conviction in 2 matters. The first is Police v. Sumeo [2013] WSSC 36 (27 May 2013), where a broken glass pipe wrapped in a white booklet leaf was found behind the defendant’s television set during a police raid pursuant to a search warrant. In discharging the defendant without conviction, the Supreme Court accepted that the defendant had not involved himself with drugs; considered that a broken glass pipe which he kept for a lengthy period of time could not be classified as a utensil for the purpose of consumption of narcotics as envisaged by the Act; and accepted the defendant’s impeccable good record, noting also that the humiliation from a police raid of his home within the view of neighbours was punishment in itself.
14. The second is Police v. Robles (19 June 2018), an unreported decision of Judge Papalii, where a Colombian national who had applied for an international student visa in New Zealand, and who travelled here for a short visit, was found in possession of a pipe amongst his belongings upon arrival at Faleolo Airport. In that case, the Court found that he inadvertently packed the utensil which belonged to a flatmate in New Zealand, and had no intention of using it during his brief stay in Samoa. There was also before the Court, extensive material on the impact of a conviction on the defendant’s pending application for an international student visa to study in New Zealand.

Application for Discharge without Conviction

15. Your Counsel seeks that the Court exercises its discretion similarly in your case.
16. The discretion to grant a discharge without conviction is provided for under section 69 of the Sentencing Act 2016. Section 70 however states that “the Court must not discharge a defendant without conviction unless it is satisfied that the consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.”
17. Two steps are involved. The first is that in terms of s70, the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The second is whether the overriding discretion to grant a discharge should be exercised (see Chang v. Attorney General [2018] WSCA 3 (13 April 2018)).
18. As to the first step, the Court must determine that in accordance with the 3 steps approach adopted by His Honour Sapolu, CJ in Police v. Papalii [2011] 132 (25 November 2011). The 3 steps approach requires the Court to consider:
    • (i) The gravity of your offending;
    • (ii) Consequences of a conviction on you;
    • (iii) Whether the consequences of a conviction on you would be out of all proportion to the gravity of the offence

Gravity of your offending

19. As Counsel concedes, the charge being drug related is therefore a serious offence. It is one of the most serious of offences within the jurisdiction of the District Court. It is submitted on your behalf that the utensil was not yours and that you had it for less than a day on behalf of a fellow Court Officer (Vili Mathes) who was late getting back to the office that afternoon. That Officer has also since been charged.
20. But according to the Summary and by your own admission, you and your fellow Officer were both consumers of methamphetamine. Be it during social events or not, your possession of the pipe was obviously for that purpose, to consume methamphetamine.
21. And to possess the utensil on and within the premises of the Courts and Ministry of Justice where the Courts are dealing with and in most cases handing down deterrent sentences to combat the prevalence of related offending, in my view aggravate the level of your offending.
22. I bear in mind that there is just one charge of possession of a utensil and no related charges of possession of narcotic substances and / or firearms as in other cases. There is therefore merit in Counsel’s argument that your offending is at the low end of drug related offending. But I do find that it is not at the low end of the charge of possession of utensil itself, given the circumstances of your offending, which I have just referred to.

Consequences of a Conviction

23. Even without any confirmation before me, I accept Counsel’s submission that you will almost certainly lose your job with MJCA if a conviction is entered. Whilst the risk of losing employment is common for any defendant in criminal proceedings, the risk is particularly real in your case because of what your employment and duty as a Court Officer entail, and in view of the significant role that the Courts have played and continue to play in dealing with similar offending.
24. It is also argued that a conviction will have an impact on your ability to travel for family reasons or work related purposes in the future. As the Court has in previous matters, I accept that that would also be an indirect consequence of a conviction on you.

Whether the consequences of a conviction would be out of all proportion to the gravity of your offending.

25. Whilst I accept that a conviction presents a real risk of your employment being terminated and will have an impact on your ability to travel, I am not satisfied that those consequences would be out of all proportion to the gravity of your offending.
26. Discharging a defendant without conviction obviously requires the Court to consider the facts and circumstances particular to each case. In my view, to grant a discharge without conviction in the circumstances of your offending would be sending out a wrong message.

Result

27. On the one charge of possession of a utensil for the purpose of committing an offence, you are convicted and ordered to come up for sentence within 12 months if called upon.
    

JUDGE FEPULEAI A. ROMA