Police v Faulkner [2007] WSSC 80 (16 October 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

JOSEPH LAFAELE FAULKNER
male of Vaitele-uta and Savalalo.
Accused

Counsel: P Chang for prosecution
T R S Toailoa for accused

Sentence: 16 October 2007

SENTENCE

The charge

The accused Joseph Lafaele Faulkner, a 42 year old male of Vaitele, appears for sentence on the charge of possession of narcotics, namely, cocaine weighing 555 grams preferred by the prosecution under s.7 of the Narcotics Act 1967. Under s.18 (2) (a) of the Act, the offence charged carries a maximum penalty of 7 years imprisonment. Other charges of lesser gravity have been withdrawn by the prosecution. The accused pleaded guilty to the charge for which he is now appearing for sentence.

The offending

As the amended summary of facts admitted by the accused shows, on 6 February 2006, a police team armed with a search warrant went to search the accused’s house at Vaitele-uta. When the police arrived at the accused’s house, they were "stalled" by the accused’s de facto wife whilst the accused threw a small silver case and a number of other items out of a window at the back of his house. A short time later the police were admitted into the house and a search was carried out of the accused’s premises.

The police found on the accused’s premises a total amount of cocaine weighing 555 grams and a total amount of marijuana weighing 40 grams. The police also found a .45 automatic pistol loaded with seven live ammunitions in the silver case that was thrown out by the accused and a .38 revolver loaded with one bullet stuck with a tape under a rocking chair inside the accused’s house. This was the rocking chair on which the accused was sitting during part of the search of his premises.

The amended summary of facts also shows that the silver case which the accused threw out of his house also contained these items:

(i). marijuana seeds and plant material weighing 40 grams,

(ii). 180 grams of cocaine in the form of blocks,

(iii). 327 grams of cocaine in powder form,

(iv). 9 glass tubes and a metal tube; one of the 9 glass tubes containing traces of cocaine and the metal tube containing traces of cannabis,

(v). 16 small plastic pockets ("deal bags") of cocaine weighing 36 grams,

(vi). $200 in cash, and

(vii). 123 small plastic bags ("deal bags")

Other items which the police found on the accused’s premises included:

(i). a hose and plastic tube which were thrown out by the accused at the same time he threw the silver case out of a window at the back of his house,

(ii). a silver tube found in the kitchen which was later confirmed to be a smoking device containing traces of cocaine,

(iii). a manual weighing scale, a box containing wire and a surveillance camera, six gas lighters, and five live .45 ammunitions, and

(iv). a copper coloured pipe found at the rear of the accused’s property which was later scientifically confirmed by the ESR in New Zealand to contain traces of cocaine and to be a smoking device.

Subsequent scientific analysis by the ESR confirmed that the various packages of suspected cocaine, within a total of 555 grams, were in fact all cocaine. The purity of the cocaine was found to vary from 74% up to 88%.

Submissions for accused

Counsel for the accused in his submissions in mitigation referred to the accused’s plea of guilty to the only remaining charge of possession of cocaine against him, the fact that the accused has no previous criminal convictions, and the fact that the accused has been in custody pending sentence.

Counsel also referred to a letter from the accused to the Court, which letter was received by the Ministry of Justice and Courts Administration on 16 July 2007. In that letter the accused says that he has been trying to stop the importation of cocaine into Samoa and to protect the country from cocaine since 2003 when he read in a local newspaper about cocaine being sold in the nightclubs and streets of Apia. In his efforts to stop the importation of cocaine and to protect the country from cocaine, he forcibly took (fao) cocaine brought in by someone from overseas and took the cocaine to his house. Later on, according to the accused’s letter, this person who brought the cocaine from overseas approached the accused and asked the accused to sell the cocaine back to him. The accused says he told this person that he did not want to sell ice (a slang term for the drug methamphetamine) or cocaine in Samoa but it would be better for him to take the cocaine back to where he had brought it from. A week later the police searched the accused’s premises and found the cocaine together with the other items and substances earlier mentioned. The accused also says in his letter that the two firearms which the police found in his house were offered for sale to him by someone. He forcibly removed the firearms from that person and told him that he (the accused) would hand the firearms over to the police.

The accused then goes on to say in his letter that in 1995 he observed that there was an increase in the quantity of ice imported into the country. So he reported to the police the names of those people who were importing ice into the country but nothing has been done about it. The accused mentions the names of three such police officers to whom he says he reported the names of those people who were importing ice. The Court ordered that a copy of the accused’s letter be given to the police for a response as the letter is an important item presented by the accused in mitigation and it puts part of the blame on the police.

Two of the three police officers whose names are mentioned by the accused in his letter have filed affidavits in response. The first of these police officers deposes in his affidavit that in 1995 he was studying law at the University of the South Pacific in Fiji. He then went to Vanuatu in 1996 to continue his legal studies. He did not return to Samoa until the end of 1999. So this police officer deposes that he was not in Samoa in 1995 which is the year the accused says he gave him information about drugs. The second police officer whose name is mentioned in the accused’s letter has also filed an affidavit in response. He denies that the accused gave him any information relating to drugs in 1995. This police officer deposes in his affidavit that the only conversation he has ever conducted with the accused was in relation to cautioning and interviewing him in relation to the charges filed against him and that was in 2002.

The accused also says in his letter that whilst in custody, he wrote a letter to the police explaining "what was actually happening". He was then taken from prison and had an audience with the police officer named in his letter and another member of the police Transnational Crime Unit. The accused says that during the conversation with those two police officers, he told them, amongst other things, that a container by a named overseas person would be arriving in the country the following week with another consignment of cocaine hidden inside a vehicle. The police officer named by the accused in his letter that he had passed information to about the container which would arrive the following week with cocaine hidden inside a vehicle has filed an affidavit in response. He says that the information given to him by the accused was passed on to the police Transnational Crime Unit and the Attorney General. Another police officer who is a member of the Transnational Crime Unit also filed an affidavit. He says that the information given by the accused was passed on to the Ministry of Customs who searched the container and found no drugs in the vehicle that was inside the container.

I must say that I find the accused’s letter to be totally incredible and is an attempt to mislead the Court. This is not a sign of genuine remorse on the part of the accused. The fact that the accused’s de facto wife stalled the police when they arrived to search the accused’s house whilst the accused threw a silver case and a number of other items out of a window at the back of the house is clear evidence that the accused was removing those items so that the police would not find them inside his house. It is entirely inconsistent with what the accused says in his letter that he forcibly took the cocaine found on him from someone who had it because he wanted to stop and prevent the importation of cocaine into Samoa. It is also inconsistent with what he says in his letter that the only intention he had was to resist drugs being brought into the country as he is concerned about our young generation for the future. The number of other items and substances, apart from cocaine, which the police found inside the accused’s house as set out in the amended summary of facts makes what the accused says in his letter most suspicious to the point that I conclude it is not true. I also do not accept that the pistol and the revolver which was stuck under the accused’s rocking chair were items which someone had offered to him for sale. These firearms belong to the accused and if they had been offered for sale to him then he must have bought them. Certain parts of the accused’s letter which mention some police officers by name have also been contradicted and explained in the affidavits in response filed by the police.

Submissions for the prosecution

Counsel for the prosecution in her written submissions refers to the amount of cocaine (555 grams) found by the police in the accused’s possession to be significant by any standard. A police officer who is a member of the Australian Federal Police (AFP) with many years of experience in drug related investigations and who had the opportunity to inspect the cocaine and other items found in the accused’s house, produced a written statement which is referred to in the submissions by counsel for the prosecution. In that statement the AFP officer says that the price of cocaine in Australia varies from AUD$250 to AUD$600 per gram. He also says that 85% is a high purity level and high purity levels of cocaine can indicate that it was obtained from a person close to the producer. He also says that cocaine is typically sold to users in small plastic bags containing one gram of substance and the plastic bags found by the police in the accused’s house are typical of ‘deal’ bags sold to drug users. He further says that drug suppliers often use firearm to protect themselves, their drugs and money from theft by other people. Drug suppliers do not report the theft of these items to the police because of the illegal nature of their business and often rely on the use of firearms to prevent the thefts from occurring. He also says that a ‘deal’ of cocaine supplied to a user is usually one gram in weight and it is common to find weighing scales at the premises of drug suppliers. Cocaine is bought and sold by its weight and scales are needed to weigh the ‘deal’.

The AFP officer further refers to what is called ‘crack’ cocaine. He says such cocaine is called ‘crack’ because of the noise it makes when it is heated. ‘Crack’ is used by placing a piece of it inside a pipe or tube. The pipe or tube is then heated by a flame from a cigarette lighter or similar heating appliance. The vapours given off by the heated ‘crack’ are inhaled by the user.

I must say that from the written statement by the AFP officer, the firearms, live bullets, bags, tubes, smoking devices, manual weighing scale, and gas lighters found at the accused premises are all items and appliances that are commonly found in connection with the supply or use of cocaine. The discovery of all those items and appliances at the accused’s premises further makes what the accused says in his letter to the Court incredible.

Counsel for the prosecution in her written submissions also refers to a report by a member of the New Zealand Police with many years of experience in drug-related investigations. That report states that the purity of cocaine is reduced a number of times by ‘cutting’ before it reaches the street where it is sold. It is estimated that if the 555 grams of cocaine in this case is sold in New Zealand, the conservative value it would yield is NZ$764,200. There is no street value for cocaine in Samoa as this is one of the first cocaine cases in this country.

It is also submitted for the prosecution that the cocaine found in the accused’s possession could not have been for the accused’s personal use but for the purpose of supply to the others. This submission is based, inter alia, on the large quantity of cocaine, the different ways the cocaine was packaged, the large number of ‘deal’ bags normally used for the purpose of supply, the presence of a manual weighing scale in the accused’s house, the number of tubes which can be used for consuming ‘crack’, and the high purity of the cocaine varying between 74% to 88% which means it could be further broken down for increased distribution. After careful consideration, I have decided to accept this submission by the prosecution.

Counsel for the prosecution also emphasises the special need for deterrence in this type of case due to the harmful effects of cocaine and whilst cocaine is only at an introductory stage and is not yet prevalent in Samoa. Counsel also points out that in New Zealand, cocaine has been re-classified from a Class B to a Class A drug to reflect its seriousness and its harmful effects. The maximum penalty in New Zealand for possession of cocaine for the purposes of supply is life imprisonment.

Reference was also made to the sentences imposed in two New Zealand case for cocaine related offences. In R v Yee (2001) (169/01, New Zealand Court of Appeal decision delivered on 29 November 2001), the New Zealand Court of Appeal upheld a sentence of 8 years imprisonment after a guilty plea on a charge which involved possession of 416 grams of cocaine with 80% purity for the purposes of supply. In the second case of R v Emirali and Carroll (2006) (CA177/06; New Zealand Court of Appeal decision delivered on 12 December 2006), the New Zealand Court of Appeal upheld a sentence of 9 years imprisonment for importation 548 grams of cocaine of 78% purity and 7 years imprisonment for conspiracy to supply.

Counsel for the prosecution then submits that the appropriate starting point for sentence in this case should be the maximum penalty of 7 years imprisonment with only a very minimal allowance for the accused’s guilty plea and his personal circumstances.

The use and effect of cocaine

The use of cocaine must be known to only very few people in this country and its effects must be known to an even lesser number of people. If cocaine is already on illegal supply to the Samoan public, the extent of such supply is unknown to the Courts. But as this is one of the first drug cases involving cocaine to come before the Courts, one would assume that the availability of this drug in Samoa is presently very limited.

Given the very limited knowledge that the Samoan public probably have of the use and effects of cocaine, I would refer to the written statement by the AFP officer, already mentioned, where it is stated:

" Cocaine is the crystalline alkaloid powder obtained after a chemical process from the coca plant. It is the most powerful stimulant derived from a natural source. It is used in medicine as an anaesthetic, particularly for the eyes, nose and throat. The main form of cocaine is cocaine hydrochloride. This form of cocaine is used by snorting or injection. Its use produces a sense of euphoria and energy and is strongly addictive. The health effects it can cause include heart attacks, respiratory failure, strokes and seizures."

In the New Zealand case of R v McFarlane [1992] 3 NZLR 424, Cooke P in delivering the judgment of the Court of Appeal stated at p.426:

" The reclassification [of cocaine as a Class A drug] was a response to fear of a rapid growth of usage of cocaine in New Zealand, particularly its derivative ‘crack’, such as had occurred in the 1980s in overseas countries, particularly the United States and the United Kingdom. The drug can be taken intravenously and in various forms of bodily application, but more often it is taken....by inhalation after heating (snorting). In the form of crack, a preparation with a cocaine base, it is smoked. An effect of the drug is rapid and intense but short-lived euphoria, which may be followed by a ‘crack’ with severe depressions and paranoia. In turn a craving for and psychological dependence on the drug may arise. Regular users face increased risks of heart attacks and strokes from bleeding into the brain resulting from high blood pressure. Among pregnant woman who use cocaine there is a high incidence of miscarriages and their babies may have cocaine related disorders. Hallucinations, as of insects crawling under the skin, occur in heavy users".

Further on at p.426, Cooke P went on to say:

" Treatment apparently becomes necessary for heavy and many lesser users sooner or later. It is expensive and on a large scale could not be coped with by existing drug-treatment facilities in New Zealand. Addicts spend heavily to obtain their weekly supplies and sometimes are driven to crime to support their habit. The high profits also attract criminal elements. Some distribution in New Zealand is said to be in the hands of certain motorcycle gangs. In addition to the social dangers of increased cocaine use, there is the cost to the community of detection and enforcement measures".

At p. 427, Cooke P referred to a 1991 report by a United States Department of State (Bureau of International Narcotics Matters) which describes crack cocaine as "the most immediately addictive drug known to man".

I would strongly recommend that the above comments I have just referred to merit serious consideration by the appropriate authorities, particularly in relation to the current maximum penalty of 7 years imprisonment for possession of cocaine when the maximum penalty in jurisdictions like New Zealand for possession of cocaine for the purposes of supply and other hard drugs classified as Class A in the Misuse of Drugs Act 1975 (NZ) is life imprisonment.

The decision

In setting a starting point for sentence in this case, I have decided to apply the approach adopted in R v Davis [2005] NZCA 246, which was a case of possession of cocaine and conspiring to export cocaine, where Robertson J in delivering the judgment of the New Zealand Court of Appeal comprising of himself, Baragwanath and Heath JJ stated at para [63]:

" It is dangerous, in cases generally and particularly in an area like this, to try to use mathematical analysis to determine a sentence. There has to be a judgment by weighing all the relevant factors. In setting the starting point the fundamental focus is on the actual offence and the involvement of the particular person in that offending. We use the term ‘staring point’ in the way it was defined by this Court in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [8]:

‘" The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features relating to the offender. Put another way, a starting point ‘is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial’ (R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 at para [34]"’

There are no mitigating features of the offending in this case which are relevant to setting a starting point for sentence. The relevant aggravating features of the offending in this case would be, first the nature of the narcotic possessed by the accused which is cocaine, secondly the large quantity of 555 grams, thirdly the high purity of the cocaine which range between 74% to 88% fourthly the estimated street value of the cocaine which on a conservative basis would yield about NZ$764,200, fifthly the cocaine was obviously for a commercial purpose, namely, selling to users, sixthly the accused’s role which was clearly that of distributor though it is not clear whether he was also an importer, and seventhly deterrence which is the primary sentencing consideration in cases of drug offending. Deterrence is of particular significance at this stage before cocaine becomes a serious problem in this country.

A factor which has troubled me in fixing a starting point for sentence is that the maximum penalty provided by our Narcotics Act 1967 for possession of narcotics, which includes cocaine, is 7 years imprisonment. This is substantially less than the maximum penalty in other jurisdiction like New Zealand where the maximum penalty for possession of cocaine for the purposes of supply is life imprisonment. Thus, on a comparative basis it can be said that the maximum penalty of 7 years imprisonment is inadequate.

Counsel for the prosecution, as earlier mentioned, suggests in her submissions that the starting point for sentence in this case should be the maximum of 7 years imprisonment with only very minimal allowance for the accused’s guilty plea and personal features. I would have been inclined to accept that suggestion if it was not for the fact that no authority was cited where a Court has adopted the maximum penalty as the starting point for sentence in a case of serious drug offending. It was also not argued whether it is justified to adopt the maximum penalty as the starting point for sentence because the maximum penalty appears to be seriously inadequate for serious drug offending. In the circumstances, I have decided that a starting point of 6 years and 9 months imprisonment would be appropriate. The starting point would have been higher if the maximum penalty was more than 7 years imprisonment.

Allowance is then made for the accused’s guilty plea. However, given what I have said about the letter written by the accused to the Court, I do not find the guilty plea as a reflection of genuine remorse on the part of the accused. Credit will therefore be given to the accused for his guilty plea only on the basis that it has saved the time and resources of the Court. Further credit is given for the fact that the accused is a find offender. For these mitigating features, I will deduct 5 months. That leaves 6 years and 4 months.

The accused is convicted and sentenced to 6 years and 4 months imprisonment for possession of 555 grams of cocaine. The total period during which the accused has been remanded in custody up to today is to be deducted from that sentence.

The suppression order that I had made in relation to the aforesaid letter by the accused to the Court does not apply to this decision and what is said in it.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Toa Law for accused