Police v Patau [2013] WSSC 120 (16 August 2013)

SUPREME COURT OF SAMOA

Police v Patau [2013] WSSC 120

Case name: Police v Patau

Citation: [2013] WSSC 120

Decision date: 16 August 2013

Parties: POLICE (prosecution) and JUNIOR PATAU male of Vaiala

Hearing date(s): 11 – 13 June, 17 – 18 June 2013

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
P Chang and E Niumata for prosecution
T S Toailoa for defendant

Catchwords:

Words and phrases:

Legislation cited:
Narcotics Act 1967 ss.6, 18 (a)(d)

Cases cited:
Peti Key v Police (CA 07/13)
Police v Faulkner [2007] WSSC 80
Police v Rankin [2010] WSSC 22
The Public Prosecutor v Kolelf [2008] VUSC 5
The Queen v Fatu (CA 415/2004)
R v Whittle [1974] Crim. LR 487
Hokefonu v Rex [2003] TOCA 3

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

JUNIOR PATAU male of Vaiala

Defendant

Counsel: P Chang and E Niumata for prosecution

T S Toailoa for defendant

Hearing: 11 – 13 June, 17 – 18 June 2013

Sentence: 16 August 2013

Charge: Possession of Narcotics (x1)

SENTENCE OF SLICER J

1. Junior Patau has been found guilty by assessors of the crime of the statutory offence of possession of narcotics namely, methamphetamine contrary to the Narcotics Act 1967 section 6, 18 (a) (“the Act”). The quantity of the narcotic was 60.15 grams. On 12 December the defendant went to the Faleolo Airport to collect a suitcase addressed to a Samoan citizen who had not lived in Samoa for many years. The suitcase had been consigned from Los Angeles via Auckland and was treated by customs as unaccompanied luggage.
2. The defendant had been employed in the Quarantine Section of the Government of Samoa for some 18 years, and was aware of the internal procedures and protocols of the systems in place for the processing of imported items either by consignment or as unaccompanied luggage.
3. The suitcase was consigned by an American company, R. M. Imports trading in California which provided documentation called an airway bill. The defendant obtained a copy of the consignment invoice and as such assumed control of the disposition of the suitcase.
4. The suitcase was examined by a customs officer who had suspicion because of a prior importation by R. M. Imports. He did so in the defendant’s presence. The officer found a package wrapped inside some clothing inside the suitcase which was later tested and found to be amphetamine.
5. The assessors had been directed that in order to find the defendant guilty of the offence, they must be satisfied beyond reasonable doubt that the defendant had knowledge of the presence of an illicit article or item, at the time of possession. They were directed that:
   • (1) Possession included the ability to control, or the management of an object even if it is not on the person said to have been in possession;
   • (2) Unlawful possession required the prosecution to prove that a person knew of the existence and presence within his physical control of the object;
   • (3) The defendant must know that he is in possession of an illicit article even if he did not know of the precise nature of the drug;
   • (4) More than one person could have control of an item; and
   • (5) The questions as to whether the substance was, in fact, amphetamine and whether, in fact, the defendant had possession of a narcotic were ones solely for the assessors.
6. The defendant gave and adduced evidence.
7. The Act section 18 (a) provides for dealing in or possession of a narcotic. In this case the prosecution confined its case to possession and did not claim that the defendant had dealt with the substance. Subsection (d) provides a penalty of “imprisonment for life where a Class A narcotic was the narcotic in relation to which the offence was committed.” Amphetamine is a Class A narcotic.
8. The proviso stated in the Act section 18 does not apply in this case. The Court of Appeal has adopted the ‘band approach’ in the fixing of a starting point for the determination of sentence (Peti Key v Police CA 07/13). There have been few sentences imposed by Samoan Courts in relation to Class A drugs. In Police v Faulkner [2007] WSSC 80 the learned Chief Justice imposed a sentence of 6 years and 4 months imprisonment on a defendant for the possession of 555 grams of cocaine. He commented on the inadequacy of the statutory maximum of 7 years for such an offence. He paid regard to the quantity and the estimated street value of NZ$764,200 as warranting close to the maximum permitted sentence. In 2009 through its enactment of the Narcotics Amendment Act, Parliament increased the maximum penalty for possession of a Class A narcotic to one of life imprisonment.
9. In Police v Rankin [2010] WSSC 22 this Court imposed a sentence of 19 months imprisonment on a person convicted of possession of 0.5 grams of marijuana and 3.3 grams of methamphetamine. Since the 2009 legislation had not been proclaimed the maximum permitted sentence remained at 7 years imprisonment. In that case the Court accepted that the possession was for personal use.
10. In Faulkner (supra) there was no doubt that the possession was for commercial gain. In Rankin (supra) this Court had cause to examine the case of the Supreme Court of Vanuatu, The Public Prosecutor v Kolelf [2008] VUSC 5 in which Tuoby J imposed a sentence of 4 years and 6 months on a defendant involved in the possession and supply of a commercial quantity of cocaine (290 grams). His Honour regarded deterrence, especially in a small state, as significant matters in his determination of penalty.
11. Here the prosecution sought, as a commencing point, 7 years imprisonment, relying on a New Zealand decision of its Court of Appeal in The Queen v Fatu (CA 415/2004). In that case the Court applied the ‘band’ methodology. The New Zealand Parliament had reclassified methamphetamine as a Class A drug thereby increasing the maximum sentence for commercial dealing in Class A drugs to that of life imprisonment. That legislative approach accords with the Samoan legislation of 2009.
12. The Court in Fatu (supra) also considered whether regard ought be had to quantity rather than street value as a more objective guide in the sentencing process, and concluded at 27:

“We are of the view that objectivity and consistency are best served if the weight calculations proceed on a basis that is referable to purity. Where the Misuse of Drugs Act refers to quantities of drugs (as for presumption of supply), it refers to the actual quantities of the controlled drug concerned. So a mixture containing 12 grams of a controlled drug and six grams of baking soda is treated as 12 grams and not 18 grams of the controlled drug for the purposes of the Act. The position is the same in Australia and England. The reason for the words ‘whether or not contained in a substance, preparation, or mixture’ in Schedule 5 is simply to make clear that if, say, the controlled drug were a very small proportion of the overall product, it is still a controlled drug.”

13. The Samoan legislation, Schedule 1 does not make reference to quantity although Schedule 3 defining Class 3 narcotics does make use of proportions and quantities in items 75 – 83. For the purpose of this sentence regard is had to the quantity rather than the potential value of the narcotic. But it may be that in some instances Samoan Courts might use either methodology. Nothing turns on this point since the Court accepts the Certificate of Analysis as showing the substance as being methamphetamine and assumes it to be between 60 – 80% purity. The Judges in Fatu (supra) also considered that in cases involving importation and supply, consideration of commerciality may be significant stating at 32:

“In cases involving importation and supply, considerations of commerciality may be significant. Indeed, as will become apparent, we think that in importation cases involving only small quantities of the drug for personal consumption, the appropriate sentencing response may lie outside (ie beneath) the bands postulated (see [34] below). In cases involving supply, there is an obvious culpability difference between those who supply for gain and those who give small quantities of drugs to friends for their personal consumption (or, perhaps, buy small quantities of drugs for their friends). Where there is a complete absence of commerciality and an absence of aggravating features (eg an aggravating feature such as the supply of drugs to school children or other young people) sentencing Judges may sentence beneath the bands postulated in [34].”

14. The Court in Fatu (supra) continued to examine the effect of the amended legislation on the appropriate ‘band’ or advisory sentencing guide. It determined that in cases involving the sale or supply of methamphetamine:

“(a) Band one – low level supply (less then five grams) – two years to four years imprisonment.

Band two – supplying commercial quantities (five grams to 250 grams) – eight years to 11 years imprisonment.

Band three – supplying large commercial quantities (250 grams to 500 grams) – eight years to 11 years imprisonment.

Band four – supplying very large commercial quantities (500 grams or more) – ten years to life imprisonment.”

and in cases of importing:

“(a) Band one – low level importing (less then five grams) – two years six months to four years six months imprisonment.

(b) Band two – importing commercial quantities (five grams to 250 grams) – three years six months to ten years imprisonment.

(c) Band three – importing large commercial quantities (250 grams to 500 grams) – nine years to 13 years imprisonment.

(d) Band four – importing very large commercial quantities (500 grams or more) – 12 years to life imprisonment.”

Pre-Sentence Report

15. The Court rejects the recommendation or suggestion contained in the pre-sentence report of 15 July that an appropriate penalty be a significant fine. The opinion is based on the false promise that the defendant had no knowledge of the contents of the suitcase. The report wrongly states:

“Given his explanation for committing the offence, it is apparent that he was naïve to go ahead and obtain the cargo from the airport for a friend without prior knowledge of the contents. His ignorance cannot be taken as an excuse for breaking the law. He has in the process committed a very serious offence against the state.”

16. It likewise rejects the defendant’s contention in his counsel’s plea in mitigation that he had only gone to collect the bag as a favour to a friend. The finding of the assessors required them to have concluded that the defendant had knowledge of the presence of a narcotic inside the bag that he was collecting.

Prosecution’s Submission

17. The prosecution submits that the commencing point ought be a sentence of seven years imprisonment. A sentencing Judge may not take a view of the facts that is inconsistent with the assessors’ verdict (see generally Warner on Sentencing, 2 Edition 2.316). But the English author Thomas in his text Principles of Sentencing (2 Edition) 369 observes that the English authorities do not require a sentencing Judge “to accept the whole of the defendant’s version of the offence. He (or she) may exercise his (or her) own judgment on the evidence, so long as he (or she) does not assume the existence of a fact that has been negated, expressing or by implication, by the formal finding of guilt (R v Whittle [1974] Crim. LR 487).
18. A Judge at the stage of sentencing can make his or her own findings of the facts consistent with the verdict of the assessors.
19. The essential findings of the Court relevant to the fixing of the commencing point are:
    • (a) The defendant was in possession of the narcotic with knowledge that it was within the bag;
    • (b) The defendant did not act as an unwitting victim of a friend. He had attempted unsuccessfully to obtain help of another in retrieving the bag;
    • (c) The possession formed portion of an attempted importing of a narcotic;
    • (d) The possession was for personal use only and there was no commercial component; and
    • (e) The quantity was not insignificant.
20. The Court does not accept that prosecution’s submission that a starting point of seven years imprisonment is appropriate ’considering the cases cited and the aggravating factors of this case.’ The Tongan case of Hokefonu v Rex [2003] TOCA 3 does not assist the prosecution.
21. The Court regards the appropriate starting point as being at the lower end of Band two as stated in Fatu (supra) paragraph 36. The possession formed part of an unsuccessful act of importation and although the act was for personal use the quantity was commercial.
22. Given the quantity of the imported narcotics the commencing point is that of five years imprisonment.

Aggravation

23. The offender was a Quarantine Officer with many years of service. He was familiar with the personnel, practice and procedures associated with importation by sea and air. He had used his knowledge of procedures to effect his purpose and betrayed the trust placed in him as a quarantine officer.

Mitigation

24. His is not entitled to the benefit of a plea. He has given many years of public service and has no prior history of misconduct or betrayal of that trust as a public officer.
25. The offender is aged forty-five has two children.
26. He has been a good provider for his family. He is well regarded by members of his church, community and extended family. He does not enjoy good health and imprisonment will be burdensome.
27. He was well regarded by his employer as shown in the reference provided by the Assistant Chief Executive Officer of Quarantine. The Court would prefer to regard the possession as personal rather than for the supply or sale to others and will treat him as a user rather than a supplier; a matter which would warrant a harsher sentence and would be less inclined to accept the assertion made in the reference paragraph 4 (4). The Court has regard to the intention of Parliament in increasing the penalty for Class A narcotics.
28. He is entitled to the credit of time already served and four weeks will be deducted from this sentence.
29. The appropriate sentence is that of three years and nine months imprisonment. One month will be deducted leaving a sentence of three years, eight months imprisonment.

ORDERS:

(1) Junior Patau is convicted of the crime of Unlawful Possession of a Narcotic.
(2) Junior Patau is sentenced to three years and eight months imprisonment, to commence as and from 19 July 2013.

..............................

(JUSTICE SLICER)