Police v Fuiono [2011] WSSC 83 (26 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

MATAIO FILIPO FUIONO male of Falealupo, Faleapuna and Lotopa.
Accused

Counsel: F Lagaaia and D Niumata for prosecution
Accused in person

Sentence: 26 July 2011

SENTENCE BY SAPOLU CJ

The charge

1. The accused is charged under s.18 (b) of the Narcotics Act 1967 that at the Fugalei market on the 26th day of February 2011 he did give a small shopping bag containing 40 marijuana cigarettes (joints) to one Ioane Sefo a male over the age of 21 years. To this charge the accused pleaded not guilty and stood trial.
   

The offending

2. The facts of the present offending may be briefly stated. A team of police officers who had been engaged in a dawn raid of a house at Fugalei on early Saturday morning 26 February 2011 afterwards went to the market at Fugalei. Inside the market, some of the police officers met the accused who is well-known to them. Shortly afterwards, the police met one Sefo Ioane who was carrying a bag. Sefo Ioane was then a prisoner but was out on week-end parole.
   
3. The police searched the bag carried by Sefo Ioane and found a parcel containing 40 marijuana joints. Sefo Ioane told the police the marijuana joints had been given to him by the accused whom the police had just met a short while before. One suspects that the reason why the accused gave the marijuana joints to Sefo Ioane, was to avoid his being caught in possession of the marijuana joints when he saw the police at the Fugalei market because he is well-known to the police.
   
4. From the evidence adduced at the trial of the accused, Sefo Ioane and the accused had been separately charged in relation to the same marijuana substances. Sefo Ioane pleaded guilty to the charge against him and had been sentenced by Nelson J to 4 years imprisonment. The prosecution was therefore able to call Sefo Ioane as a witness at the trial of the accused.
   

The charging and penalty provisions

5. Section 18 of the Act which is the relevant provision states:
   

"A person who contrary to the provisions of this Act or the regulations:

"(a) deals in or has possession of any narcotic;

"(b) sells, gives, supplies or administers or offers to sell, give, sell or supply and narcotic to any person;

"(c) procures, consumes, or otherwise uses any narcotic:

commits an offence and is liable to;

"(d) imprisonment for life where a Class A narcotic was the narcotic or one of the narcotics in relation to which the offence was committed; or

"(e) imprisonment for a term not exceeding 14 years where paragraph (a) of the subsection does not apply but a Class B narcotic was the narcotic or one of the narcotics in relation to which the offence was committed; or

"(f) imprisonment for a term not exceeding 7 years where a Class C narcotic was the narcotic in relation to which the offence was committed or any narcotic not listed in any of the Schedules"

6. As advised by counsel for the prosecution, s.18 (d)-(f) was introduced by amending legislation in 2010.
   
7. Cannabis resin which is the narcotic found in marijuana is classified as a Class B narcotic in the Second Schedule to the Act. Because of this, a person who sells, give, supplies or administers or offers to sell, give or supply any narcotic to any person under s.18 (b), which is the provision under which the accused is charged for giving 40 marijuana joints to Sefo Ioane, is liable to a maximum penalty of 14 years imprisonment in terms of s.18 (e). This is the same maximum penalty provided under the pre-existing s.18 (1) for any person who sells, gives, supplies, or administer, or offers to sell, give, supply, or administer any narcotic to any person under the age of 21 years. In respect of any person over the age of 21 years, the maximum penalty under the pre-existing s.18 (2) was 7 years imprisonment.
   
8. Under the existing s.18 (b) and (e) there is no longer any distinction between a person under or over the age of 21 years. The same maximum penalty of 14 years imprisonment now applies to both categories.
   
9. Perhaps I should note here that it appears from the most recent and relevant New Zealand case that I have been able to find, namely, R v Hampton and Hampton [2008] NZHC 1958 that the maximum penalty under the New Zealand Misuse of Drugs Act 1975 for cultivation of cannabis is 7 years imprisonment and the maximum penalty for possession of cannabis for supply or for sale is 8 years imprisonment. In that case the police found 144 cannabis plants growing on the accused's property, 53 cannabis seedlings in the boot of a car near the accused's house, and 2.2 kilograms of dried cannabis plant material in the boot of another car near the accused's house. The accused Paul Hampton who pleaded guilty was sentenced to 10 months home detention. The accused Te Rakato Hampton who had also pleaded guilty was sentenced to 7 months home detention.
   

Previous convictions

10. Because the accused has four previous convictions for possession of narcotics (marijuana) and previous convictions for other types of offences, something needs to be said about the use of previous convictions for sentencing purposes as the accused's previous convictions is one of the basis on which the prosecution relies for seeking a sentence of 4½ years imprisonment in this case. Whilst previous convictions are relevant to establish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencing Judge should be on guard against sentencing an accused twice for the same offences on which he had previously been convicted and sentenced. This has been explained in many cases but it would be sufficient for present purposes to refer to Sentencing Guide (1994) by G G Hall where the learned author said at 1.6.12, B/191:
    

"Regard may be had to an offender's record when imposing sentence. This matter is not without its difficulties as the Court has to reconcile two principles; on the one hand the acceptance of the preventive purpose of punishment, and, on the other, the rejection of punishing an offender again for earlier offences: R v Ward [1976] 1 NZLR 588. In that case the Court of Appeal said that an authoritative statement of the policy which the court should adopt where it thinks it necessary to protect the public from the depredations of persistent offenders is to be found in an earlier judgment of the Court pronounced by Sir Michael Meyers CJ in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594, 597 where he said:

"The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly".

"The compromise adopted by the Court of Appeal is that previous convictions may be examined to establish the character of an offender and to assist in the determination of the punishment that is appropriate for a person of that character for the particular offence committed: see eg R v Howe [1982] 1 NZLR 618. See also R v Ottewell [1970] AC 642, 650, [1968] 3 ALL ER 153, 158 (HL). Previous convictions are regarded as being relevant to a prediction of the offender's future behaviour, and to the determination of the likelihood of an offender responding positively to a particular form of sentence.

"While the number and nature of previous convictions is a significant factor in sentencing (as it is illustrative of contempt for authority, and is thus relevant to an assessment of culpability), primarily regard must be had, when determining the appropriate sentencing level, to the intrinsic nature and gravity of the offence charged. A sentence must not be increased merely because an offender has previous convictions, with the result that he is thereby punished twice for the same offence: Casey (above); R v Power [1973] 2 NZLR 617 (CA); Baumer v R (1988) 166 CLR 51 (HCA).

"A person is not to be sentenced on his or her record. Criminal record is relevant to the extent that if the offender has no previous convictions he or she is generally entitled to substantial mitigation as a first offender (see para 1.6.6). In relation to the length of the offender's criminal record, mitigation progressively becomes less significant until it becomes ultimately non-existent.

11. The learned author of Sentencing Guide (supra) then went on to say:
    

"The second feature identified in the extract from the judgment in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 and re-affirmed in R v Ward [1976] 1 NZLR 588 is that the commission of several offences of the same or similar type will normally result in an offender receiving a more severe sentence on the basis that the previous convictions indicate a predilection to commit a particular type of crime. Previous offences may be so numerous and so persistent that a lengthy sentence of imprisonment needs to be imposed because of the need to remove the offender from the community in order to protect its safety, and, where appropriate, its property: Rapana v Police (High Court, Auckland AP281/91, 28 November 1991, Tompkins J).

Aggravating factors

12. The only aggravating factor in relation to the present offending is that its commission inside the Fugalei market suggests that the marijuana joints were intended for sale. So there was a commercial motive. The Fugalei market is the place where so many prosecutions for possession of narcotics (marijuana) have originated from.
    
13. The other aggravating factor is the previous convictions of the accused for possession of narcotics and this factor relates to the accused as offender.
    

Mitigating factor

14. There is no mitigating factor.
    

The decision

15. Having regard to the intrinsic nature and gravity of the offending as well as the maximum penalty of 14 years imprisonment, I will take 2 years as the starting point for sentence. I will increase that sentence by 3 months to 2 years and 3 months having regard to the accused's previous convictions for possession of narcotics (marijuana). There is no mitigating factor in relation to the accused as offender.
    
16. The accused is therefore convicted and sentenced to 2 years and 3 months imprisonment. This is the highest sentence I can impose in this case. The 4½ years imprisonment term sought by the prosecution is, in my respectful view, too high even if marijuana related offences are prevalent. The total time for which the accused has been remanded in custody is to be deducted from that sentence.
    

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia, for prosecution