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Police v Fuiava [2018] WSDC 18 (19 June 2018)

IN THE DISTRICT COURT OF SAMOA
Police v Fuiava [2018] WSDC 18


Case name:
Police v Fuiava


Citation:


Decision date:
19 June 2018


Parties:
POLICE v TUIFAGALILO FALEUPOLU FUIAVA, male of Lotofaga Safata and USA


Hearing date(s):



File number(s):
D4149/17, D4519/17


Jurisdiction:
DISTRICT COURT


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
JUDGE ALALATOA ROSELLA VIANE PAPALII


On appeal from:


Order:


Representation:
R Titi and Constable T Vaai for Prosecution

MV Peteru for Defendant
Catchwords:
Possession of a utensil namely an electronic weighing scale (s13b) Narcotics Act 1967); possession of an unlawful firearm namely a .32 caliber semi-automatic pistol (s12(1) Arms Ordinance 1960); possession of 24 live ammunitions for an unlawful weapon (s12(1) & (3), law reform background to s12 Arms Ordinance and s13(b) Narcotics Act; commercial intent of possession of electronic scale


Words and phrases:


Legislation cited:


Cases cited:
P v Lafi [2008] WSSC 44
P v Williams [2014] WSSC 152
P v Vai [2009] WSSC 9
P v Chan Chui [WSCA] 1


Summary of decision:
The accused is convicted of all three charges and ordered to come up for sentence in 8 months. In addition, he is ordered to pay a pecuniary penalty as follows:
(i) For the possession of the firearm and ammunitions he is to pay court costs of ST$2000, Prosecution costs of ST$500 and Probation costs of ST$100; and
(ii) For the possession of a utensil, he is to pay a court fine of ST3000 and Prosecution cost $ST500.
The accused is ordered to pay the total sum of $6100 with the Court cashier by Friday 22/06/18. He is to return to this Court at 10.30am the same date (22/06/18) for the recalling of this matter to provide proof of payment. His counsel has given an undertaking this will be done. The court will defer the issuance of a default order until Friday when his matter will be recalled.
In the meantime, his travel document is to remain in the custody of the Court Registrar until his next appearance when further orders as to its release will be made; depending of course if he complies with the pecuniary penalty ordered.
The record to note that the firearm, ammunitions and scale were returned to the Prosecution this instant date and as ordered in the main Judgment, the Police Commissioner is to have these destroyed forthwith.

IN THE DISTRICT COURT OF SAMOA


HELD AT MULINU’U


BETWEEN:


POLICE
Informant


AND:


TUIFAGALILO FALEUPOLU FUIAVA,
male of Lotofaga Safata and USA
Defendant


Counsels: R Titi and Constable T Vaai for Prosecution

MV Peteru for the Defendant


Date of Sentence: 19 June 2018


SENTENCING DECISION

Background

  1. Tuifagalilo Fuiava (“Tuifagalilo”) you appear today for sentence, after a defended hearing where you were declared guilty of all three charges namely:

Facts

  1. The pertinent facts and full background of the offending are well canvassed in my Judgement of 21/03/18 which should be familiar to all by now. I will not traverse this again, suffice to refer to it where applicable. But for these purposes, it is again noted that the items you were charged with Tuifagalilo, were discovered and confiscated from a Police raid conducted on 26/09/17 at your home at Lotofaga Safata and a vehicle registered under your name.

Victim

  1. The victim is obviously the State.

The Accused

  1. According to the evidence and your Pre-Sentence Report (“PR”), you reside permanently in the USA with your parents, wife and four children. But you frequently visit Samoa. In 2013, you travelled here to commence the construction of your family home at Lotofaga and you returned last year to complete it. You had a good education and held a number of employment in the USA before you branched out to establish a business with your family.

Aggravating Factors

  1. Prosecution submits and I accept that the aggravating features of your offending include the increasing prevalence of this type of offending and its impact on society; commercial intent of the offending given the discovery of the scale and large amounts of cash; premeditation; the presence of unlawful weapon and live ammunitions and inference of possession of methamphetamine and its adverse implications.

Mitigating factors

  1. In terms of the mitigating factors, you were of good character prior to this offending. You cooperated with Police in their investigations and raid. I accept you are genuinely remorseful. According to the PR you have accepted the Court’s finding of guilt.
  2. You have a favourable PR which states inter alia that you were penalised by your village fono with 40 cartons of tinned fish (pusa apa) and 12 cartons of chicken (pusa moa); you complied with this penalty. I am obligated by law pursuant to s8 of the Village Fono Act 1990, Community Justice Act 2008 and s9 Sentencing Act 2016 to take that penalty into account at sentence as a mitigating factor.
  3. I also take into account your personal circumstances. Given the nature of the offences and strict bail conditions imposed, you have been separated from your family and I accept this has taken a toll on you.

Discussion

  1. There is no question this type of offending is on a rampant rise. Its prevalence prompted Parliament to revisit the legislations and penalties imposed. One need only to look at the legislative history of the relevant enactments to know this.
  2. The history of amendments to the enactments over the years reflects the community and Parliament’s growing concern about the prevalence of these type of offences and the need to impose harsher sentences. But this was not always the case. To illustrate, for s12 Arms Ordinance 1960, prior to 1999, the maximum penalty was 3 months’ imprisonment or a $200 fine. However, in 1999, Parliament drastically increased this to a maximum of 5 years imprisonment or a fine of 100 penalty units or $10,000.[1]
  3. Similarly, s13 Narcotics Act 1967 also underwent reform. Prior to 2010, the maximum penalty was 3 months’ imprisonment or a fine of $200.00. However, this changed significantly in 2010 to 7 years imprisonment or a fine not exceeding 200 penalty units or $20,000. The main policy concern for these reforms was the surge of different types of controlled substances as well as implements utilised for consumption of narcotics. Foremost, was the need for deterrence to protect members of the community.
  4. This case further illustrates the very concerns Parliament, our Courts and community have had over the years. The fact that the scale was found in your possession Tuifagalilo in addition to the discovery of traces of methamphetamine is cause for alarm. Coupled with this, is the discovery of an unlawful firearm, live ammunition and large amounts of cash. It is a known fact that the presence of firearm is usually associated with drugs.
  5. One of the aggravating factors identified is premeditation. Your attempts at trial to explain away how you came to be in possession of the scale, firearm and ammunitions was simply not credible. For the firearm and ammunition, Police are known to issue amnesty time periods for surrendering unregistered firearms. You could have made use of this opportunity. But you did not.
  6. Another aggravating factor is the inference of commercial intent. The evidence led from Inspector Herbert Aati, confirmed in my mind the main purpose for which the scale was utilised was for weighing methamphetamine in point bags. Although no direct evidence was adduced from the raid regarding the commercial intent aspect, Prosecution’s case was circumstantial on this point, and I am entitled to draw an inference on the evidence open to me.
  7. In fact, this was the only plausible conclusion I could draw for your having possession of the scale. Why else would you be taking it around like it was worth a million dollars? You did so because of its main purpose as Police argued. If the methamphetamine was for your own personal use, you would not be requiring a scale to measure the quantity for your consumption. Also the explanation for the large amounts of unbanked cash found on your person simply did not add up. However, whether the cash money is proceeds of crime is not my concern as it is the Supreme Court that has proper jurisdiction to deal with such an application, if made.
  8. As I said above, traces of methamphetamine were spotted on the scale and the SROS report confirmed that it was in fact this drug. Methamphetamine is a controlled substance listed in the First Schedule of the Narcotics Act as a Class A Narcotic. It is obvious that it is a deadly drug known for its highly addictive and toxic effects on users. Although none was actually found on you, the evidence is crystal clear that in addition to the remnants of methamphetamine found on the pan of the scale, the k-9 dog Flynn also detected a strong scent of what Police said was ‘Ice’ on the lounge seats and in the vehicle where the scale was found.
  9. There is no doubt in my mind Tuifagalilo, having heard the evidence that you do have some involvement with drugs and in particular methamphetamine. In fact, your counsel had suggested that you attend a drugs and alcohol programme as a form of rehabilitation. When pressed further to clarify she quickly withdrew the suggestion; but it was already too late. Your lawyer would not have made such a suggestion for you to attend such programme if this were not the case.
  10. In sentencing you, I have in mind the purposes of sentence set out s5 Sentencing Act 2016 which includes holding you accountable; promoting in you a sense of responsibility; denouncing your conduct, deterrence, and protection of the community. I also remind myself of the principles of sentence in s6 Sentencing Act.
  11. It is crucial to send out a strong message to you Tuifagalilo and the community at large that this Court does not condone your conduct. It is critical that members of the public are protected from this type of offending. You must play your part as a Samoan to ensure this is a drug free community. You must start thinking about our youth whose lives is harmed from using drugs made available by those who deliberately deal with these illegally. I am telling you today Tuifagalilo as a final warning, that you must stop what you are doing.
  12. You have four children ranging from the ages of 3 to 14. You must start thinking about their future. The golden rule in the scriptural book of Leviticus is: “Do unto others as you would have them do unto you”. It is timely you start thinking about others including your family. You have been separated from them for a while but this is a natural consequence of your offending. I accept that physical separation from can be emotionally draining on any person.
  13. Tuifagalilo, if you want your kids to grow up in a drug free environment, then you better show them the way to ensure they do not tread a thorny path. As a parent you should be setting a good example and be a role model. No parent wants to see their children get involved in drugs or any other offence. Do not forget the proverb that you reap what you sow.
  14. You must bear in mind Tuifagalilo that if you continue down this road of self-destruction, you will be taking down with you everyone else in your family. Only you hold the key to your life and the path you choose to walk. I can rave on and on about atonement and the need for you to change your ways but if there is no drive or motivation on your part to flip a new page, then it is futile and a complete waste of time.
  15. This matter cost this Court three day of invaluable time and resources. But as you had chosen to deny the charges, the principles of natural justice and Article 9 of the Constitution required you be afforded a fair and public hearing given you are innocent until proven guilty by the Prosecution. However, your own evidence was damaging that it nailed home the case for the Prosecution. I assess your degree of culpability in terms of the scale to be on the high end and for the firearm and ammunitions, moderate.
  16. In your favour, I take into account the mitigating factors listed in 6 to 8 above. You are a first offender and a person of good character prior to this offending but this was by no means out of character given there was premeditation. You cooperated with Police, and is genuinely remorseful. I know that it is a stigmatising experience to be in that dock. I am certain you would like closure and finality so you may see your family.
  17. Prosecution recommended a conviction and an imprisonment term of 12 months for the scale and 6 months for the armed offences. Your counsel proposed a fine. Both sides relied on their own case authorities.
  18. But I have conducted my own research and note that for these type of offences, penalties imposed ranged from non-custodial to custodial depending as always on the circumstances of each case. So I am mindful of the range of appropriate sentences previously imposed and policies the Courts have adopted.
  19. In regards to case authorities, this is very much distinguished in many respects from the instant case. For example, in P v Semisi Lafi[2], the accused was charged with a combination of counts, including armed with a firearm, 3 possession of narcotics and 1 possession of a utensil. The totality principle was taken into account and he was convicted and sentenced to 10 months’ imprisonment.
  20. Similarly for P v Williams,[3] the accused there was charged with possession of methamphetamine, possession of utensils, possession of marijuana seeds, possession of unlawful pistols and ammunition. He was convicted and sentenced to an imprisonment term of 5 years.
  21. In both these cases, controlled substances were actually found and each accused was charged accordingly for those offences. Compare this to P v Vai[4], he faced one charge of possession of a utensil namely a glass pipe. He was convicted and sentenced to a suspended sentence of 12 months and was further ordered to pay costs of $100 each to the Prosecution and Probation.
  22. Neither side however, relied on P v Chan Chui[5]. The accused there was convicted by CJ Sapolu of 3 marijuana joints, possession of a glass pipe; possession of a copper pipe and possession of 54 rounds of .22 ammunition. The accused was sentenced with a total pecuniary penalty of $650 specified as:
(b) Possession of a prohibited implement $150
(c) Possession of a prohibited implement $150.
(d) Possession of ammunition $150.
  1. Prosecution appealed the sentence on the ground it was manifestly inadequate, but the appeal was dismissed. It is crucial to note what the Court of Appeal said there:[6]

“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.”

  1. I endorse the words of the Court of Appeal above. I further say that the circumstances of your case differs from the next bloke who appears in that dock for a similar charge. In other words, no two cases are ever the same.
  2. With that being said, I now turn to consider an appropriate sentence for you. I note you were in custody for a week before bail was granted on 4/10/18.
  3. Having considered the totality of your offending, degree of culpability and all the aggravating and mitigating factors, I form the view that a non-custodial sentence is appropriate. I am mindful that subjective and general deterrence is crucial. But I want you to know Tuifagalilo that this is the only time I will be merciful because the next time you appear, there will not be any more mercy or leniency. Bear that in mind.

Penalty

  1. You are convicted of all three charges and ordered to come up for sentence in 8 months. In addition, you are ordered to pay the following pecuniary penalty:

(c) The total sum that you must pay is ST$6100.00

  1. Your counsel requested you be given until this Friday 22/06/18 to settle in full the fine and costs ordered. I have accepted this.
  2. Your matter is therefore adjourned to be called before me this Friday 22/06/18 at 10.30am, for you to appear to provide proof of payment. Your counsel has given an undertaking that this will be done. So I will defer the issuance of a default order until this Friday when your matter is next called.
  3. In the meantime, your travel document is to remain in the custody of the Court Registrar until you have settled in full the sum ordered and appear with proof of payment on 22/06/18.
  4. The record to note that the firearm, ammunitions and scale were returned to the Prosecution today and as ordered in the main Judgment, the Police Commissioner is to have these destroyed forthwith.

Addendum

  1. The matter was recalled on 22/06/18 whereby Tuifagalilo appeared and produced the receipt as proof of payment. A subsequent order was made for the release of his travel document.

JUDGE A R VIANE PAPALII


[1] Arms Amendment Act 1999. No 19
[2] P v Lafi [2008] WSSC 44
[3] P v Williams [2014] WSSC 152
[4] P v Vai [2009] WSSC 9
[5] P v Chan Chui [WSCA] 11
[6] Ibid at 4

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