Police v Faisauvale [2010] WSSC 83 (16 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

TAGALOASA FILIPAINA FAISAUVALE,
male of Faleatiu and Vaitele
Defendant

Presiding Judge: Justice Slicer

Counsel: P Chang & G Patu for the prosecution
T S Toailoa for the defendant

Hearing: 18, 19, 20, 21 May, 8 and 11 June 2010
Sentencing: 16 July 2010

Charge: Possession of Narcotics, Armed with a Dangerous Weapon

SENTENCE

1. Filipaina has been found guilty of the crimes or offences involving the possession of narcotics, a firearm and ammunition. The circumstances leading to his conviction are stated in the Reasons for Decision delivered on 11 June 2010.
   
2. Filipaina was engaged in a commercial operation on property leased by his former wife. He employed members of his family to cultivate and harvest a variety of crops on that land, and to maintain the premises in good condition. Two of those family members were charged with possession of narcotics, one of whom is deceased and the second, Sinapati, convicted on the joint trial.
   
3. On the morning of 8 August 2009, police went to a property at Fugalei occupied and managed by the defendant. They had a search warrant authorising them to search for narcotics. On their way to the property they saw his vehicle which was searched. They found ammunitions of different calibers in the vehicle. During the search they saw Filipaina's woman companion leave a nearby video shop. A search of her handbag and purse revealed a loaded semi-automatic pistol and approximately $1,300 in cash. The police then accompanied the defendant to the property where they found 30.7 grams of marijuana leaves, 14 branches of dried marijuana weighing 14.7 grams, and 99 small plastic bags often associated with the sale and distribution of narcotics. The evidence is that a bag with a small amount of marijuana is sold on the street for SAT$5.00.
   
4. The defendant employed three members of his family on the property one of whom, Sinapati attempted to hide the narcotics from police. Sinapati was sentenced on 29 June 2010 as a youthful and minor offender.
   
5. Filipaina was engaged in the commercial operation of processing, distribution and sale of narcotics. There was evidence that there is often a connection between the possession of firearms and narcotics. The reason is self-evident.
   
6. Here the possession of a semi-automatic pistol and a commercial operation in narcotics requires a significant penalty.
   
7. Counsel for the defendant made cogent and detailed submissions on the sentencing hearing. His contention was that many countries had adopted a penal or criminal model in its response to drug use. He made the point that alcohol had caused more damage. He claimed that the models had not succeeded in reducing drug use. The number of arrests for narcotics reported in Samoa, as stated by police who gave evidence on this trial, supports that claim. The second part of the submission of counsel is that the courts have compounded the problem by continuing to use imprisonment in a futile attempt to reduce offending. There is some merit in what counsel says. Some countries have reduced the penalty for possession of small amounts for personal use. Some countries, like Samoa distinguish between marijuana and heroin or amphetamines. Some countries recognize addiction by a user as a medical problem requiring treatment rather than imprisonment.
   
8. But no country has allowed commercial sale or distribution especially when it involves the possession and use of firearms. There is a big difference between small personal use and large scale criminal activity. Criminal organizations are interested in money and protection of their market. They use bribery, violence and the weakness of addicts to get financial gain. All countries recognize this evil. Here the offender was engaged in commercial gain and had an illegal weapon to protect his activity or enforce payments. The general submissions of counsel do not apply in this case.
   
9. There is a second reason to answer the contention of counsel. The courts impose sentences within a statutory guide. It is for parliament to state its view of the seriousness of a crime in its fixing of statutory punishments. The courts are required to accept the statements in the legislation in the light of social values and circumstances. The courts are responsible for assessing penalty in individual cases and over time might set a guide to appropriate penalties. But larger social and political issues remain the province of parliament.
   
10. Filipaina is aged 51 years. He has prior convictions for the crimes of murder committed in 1980 and 1981. He had been released on parole in September 1992 but remains subject to a life sentence of imprisonment. He has failed, on a number of occasions to obey the conditions of his parole. His parole was revoked in August 2009 following the charges relating to these crimes.
    
11. The pre-sentence report indicates that the offender has raised and supported a large family and has been a good provider for his extended family. He has been successful in business and has been a good member of and provider for his village. That is often the case for persons engaged in commercial criminal activity. To his credit he has no convictions for criminal conduct since the date of parole. The court accepts that some of his financial success has come from legitimate business.
    
12. The combination of commercial involvement in narcotics and the possession of firearms require a significant penalty.
    
13. The legislation provides for maximum penalties of 7 years and 5 years imprisonment respectively for narcotic offences, in addition to maximum fines of $10,000. He will be sentenced to consecutive sentences for the possession of narcotics and the firearm. Convictions will be recorded on the remaining crimes. The prosecution suggested that cumulative sentences of 2 years be imposed on each of the ammunition charges. While the ammunition charges were of different calibers there was no evidence of any corresponding firearm. No application has yet been made by the Attorney General pursuant to the Proceeds of Crimes Act 2007, sections 19 and 28 for either the forfeiture of the money or the imposition of a pecuniary penalty. If no application is made within a time prescribed by the statute it ought to be returned to the companion of the offender.
    

ORDERS

1. Filipaina Faisauvale is convicted of the crime of possession of narcotics comprised in information S1939/09;
   
2. Filipaina Faisauvale is sentenced to a term of imprisonment for a period of 4 years for the possession of narcotics, such sentence to commence as and from 8 August 2009.
   
3. Filipaina Faisauvale is convicted of the crime of possession of an unlawful weapon comprised in information S1941/09;
   
4. Filipaina Faisauvale is sentenced to a term of imprisonment of 2 years and 6 months for the possession of an unlawful firearm, such sentence to be cumulative to that imposed in Order 2.
   
5. Filipaina Faisauvale is convicted of the crimes of possession of unlawful ammunition comprised in information S3265/09, S1954/09.
   

JUSTICE SLICER