Police v Maposua [2010] WSSC 85 (28 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

MOLI MAPOSUA,
male of Moataa, Vaivase & Falelauniu
Defendant

Presiding Judge: Justice Slicer

Counsel: G Patu and F Vaai for the prosecution
T S Toailoa and T Toailoa for the defendant

Hearing: 25, 28 June and 21 July 2010
Sentencing: 28 July 2010

Charge: Possession of Narcotics (3x), Possession of Utensil, Possession of Unlawful Weapon

SENTENCE

1. Moli Maposua has pleaded guilty to three charges of Possession of Narcotics and one charge of Possession of a Narcotic Utensil contrary to the Narcotics Act 1967 ss.18, 13 (b) ("The Act"). He has also pleaded guilty to Possession of an Unlawful Weapon contrary to the Arms Ordinance 1960 s.13. Those pleas were entered towards the conclusion of the prosecution case after the defendant had heard much of the evidence. The defendant was entitled to enter his plea of not guilty and put the prosecution to proof. He ought not to be punished for his exercise of a civil right. But he is not entitled to the full benefit of a plea of guilty entered before trial. Here he pleaded guilty at the last moment and after the presentation of the prosecution case. Little weight will be given to the plea. It was an acceptance of the strength of the case against him or as some authorities state an acceptance of the inevitable.
   
2. On 21 December 2007 police, with the authority of a search warrant, searched the land and premises occupied by the defendant. They recovered 2,398 marijuana seeds, 32 marijuana stalks, 3 marijuana plants with a total weight of 2,728 grams, loose leaves of the substance and a smoking implement. They also found a .32 revolver with 17 rounds of ammunition.
   
3. Evidence led at trial established that over a period of time persons commonly visited the property, often by taxi and purchased narcotics. The court is satisfied that the operation was both commercial and ongoing.
   
4. Counsel for the defendant restated his submissions made in the sentencing of Filipaina referred to in the Sentencing of Filipaina Faisauvale (16 July 2010). The court has received a number of sentencing judgments published between 2002 and 2009 (Tovio [2002] WSSC 23; Fuifui [2005] WSSC 20; Siaosi [2007] WSSC 9; Selau (21 May 2008); Samuelu (25 March 2009)) and the more recent decisions of 2010. They show a consistent sentencing pattern. Personal use of small quantities does not invariably result in imprisonment. There has been a changing of judicial response for individuals with good background and record which recognises the problems associated with the use of an unlawful substance. But there has been a consistency in the imposition of harsher penalties on persons engaged in commercial distribution and financial gain. The court accepts the reasoning of Nelson J in Ioane Sefo (4 August 2008) that there has been a dispersal of marijuana related offences which stems from organised sale and distribution of the narcotic. Experience in other jurisdictions suggests that there is a connection between a supply and distribution network between marijuana and more dangerous drugs such as heroin and amphetamines. One model which has been a response to the problems identified by counsel has been the decriminalisation of possession and use of small amounts of marijuana and implicitly allowing the cultivation of only 1 or 2 plants in an attempt to break the connections between crime and recreational use.
   
5. The Narcotics Act 1967 was enacted at a time when the complexities of drug abuse associated with marijuana and later with heroin, amphetamines and similar drugs were not properly understood. The legislation did not distinguish between the amounts involved, commercial as against personal possession or corresponding penalties dependant on those distinctions. The statement of a uniform maximum penalty of 7 years imprisonment (s.18) required that all matters be determined by the Supreme Court because of the provisions of the District Courts Act 1969 s.36. No regulations proscribing a trafficable amount as provided for by the Act s.5 have been promulgated. The amendments made by the Act providing for the new provisions ss.18A, B deal with manufacture and are designed to meet the requirements of the chemical processes of narcotics but fail to deal with organic and grown substances. The Narcotics Amendment Act 2009 which commenced on 12 July 2010 increases the maximum penalty, but on my limited access to that legislation, does not deal with the problem identified above.
   
6. The problems of sentencing and a coherent response to the problem require greater consideration by the parliament. The courts are required to provide consistency in sentencing within a framework set by the legislature and in accordance with the social circumstances of the general community. It may be that the Attorney might consider the selection of an appropriate test case for consideration by the Court of Appeal as a means of providing guidance to sentencing Judges.
   
7. In this case the dealings were commercial and were associated with the possession of an unlawful firearm. I repeat what I said in Filipaina (16 July 2010) concerning the combination of narcotics and firearms.
   
8. Moli is aged 50 years and lives in a stable relationship. The pre-sentence report states that in recent years he has been a responsible member of his community, but he has a long record of convictions for breaches of the law. That record shows repeated offences of dishonesty and violence between 1976 and 1996. Those offences include ones of kidnapping, rape, actual bodily harm, robbery and being armed with a dangerous weapon. There are many convictions for burglary and theft and two for possession of narcotics.
   
9. I see no reason to distinguish the appropriate penalty from that imposed on Filipaina except the fact that Filipaina offended whilst on parole. Some small allowance will be made for his late plea of guilty. A composite sentence will be imposed on the narcotics charges of possession and a cumulative one with respect to the firearms offence. He has served no time in custody.
   

ORDERS

1. Moli Maposua is convicted of the crimes of Possession of Narcotics as comprised in informations S24/08, S26/08 and S123/08;
   
2. He is sentenced to a term of imprisonment for a period of 4 years with respect to those informations.
   
3. Moli Maposua is convicted of the crime of Possession of an Unlawful Utensil as comprised in information S33 of 2008.
   
4. Moli Maposua is convicted of the crime of Possession of an Unlawful Weapon as comprised in information S36 of 2008;
   
5. He is sentenced to a term of imprisonment for a period of 18 months with respect to that information; such sentence is to be cumulative to that imposed by Order 2.
   

JUSTICE SLICER