Police v Moa [2013] WSSC 24 (27 May 2013)

SUPREME COURT OF SAMOA

Police v Moa [2013] WSSC 24

Case name: Police v Moa

Citation: [2013] WSSC 24

Decision date: 27 May 2013
Parties:
POLICE v TAGOIAEGA TOLEAFOA FAISAUVALE MOA and SIVAI KEPI male and female of Fasito’o-Tai

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:
Representation:
F E Niumata for prosecution
M V Peteru for defendants

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution

AND

TAGOIAEGA TOLEAFOA FAISAUVALE MOA and SIVAI KEPI male and female of Fasito’o-Tai

Defendants

Counsel: F E Niumata for prosecution

M V Peteru for defendants

Sentence: 27 May 2013

ORAL SENTENCE

The defendants in this case appear for sentence on charges of possession of narcotics (second defendant) and giving of narcotics (first defendant). The maximum penalty for both offences is 14 years imprisonment. The first defendant Tagoiaega Faisauvale is a 44 year old male planter of Fasito’o-tai with 5 children. His co-defendant Sivai Kepi is his 29 year old de facto spouse from the village of Sasa’ai in Savaii. The couple themselves do not have children from their relationship.

The police summary of facts relates that the first defendant supplied the marijuana involved in this offending. It says that on Tuesday 13 March 2012, the first defendant asked his female cousin Fevi’ia’i Isaako to go with the second defendant to Savaii to deliver a shipment of marijuana. For this the first defendant promised to pay his cousin $1,000.00

On Wednesday 14 March the defendants picked up Fevi’ia’i and the group proceeded to Mulifanua Wharf. The marijuana was packed in a suitcase. The suitcase was unloaded and carried on to the ferry by Fevi’ia’i who pretended that the suitcase was very heavy but as she pulled it on board the suitcase overturned. This drew the attention of an off-duty police officer. He began watching what Fevi’ia’i was doing and became suspicious of the two women and the suitcase. When he made enquiries of the wharf employees, he was told that Fevi’ia’i often travelled to Savaii and that she was suspected of being involved in the drug trade. The officer accordingly contacted the Savaii police who met the two women when they arrived at Salelologa Wharf. As they disembarked with the suitcase the police arrested them and took them to Tuasivi police station.

A search of the suitcase revealed it contained 3 rubbish bags. The first contained 5.136 kilograms of marijuana; enough to make according to the police summary some 7,337 joints. The second bag contained 2.59 kilograms of marijuana, equivalent to 3,700 joints; and the third bag 1.955 kilograms, equivalent to 2,779 joints. Gross weight of the marijuana shipment was 9.681 kilograms.

The women were interviewed by the Tuasivi police. The defendant Fevi’ia’i admitted to being the courier and the second defendant Sivai admitted to packing the marijuana into the trash bags in order for it to be transported to Savaii. For her role in the matter the first defendants cousin Fevi’ia’i was on 7 May 2012 convicted and sentenced by this court to a term of 5 ½ years in prison.

The present defendants initially pleaded not guilty to the charges but on trial day all other informations were withdrawn by the police and the defendants changed their pleas to the remaining single charge from not guilty to guilty. Their subsequent application to the court to revert back to not guilty pleas was earlier this year denied by the court and it is today a question of a suitable penalty to be imposed on the defendants.

The second defendant Sivai Kepi is a first offender but the first defendant is not. He has admitted to his previous conviction record. A record which includes a conviction for narcotics possession in 2006 for which he served a prison term.

As my brother Judge Vaai, J said when he sentenced Fevi’ia’i, the message from this court stated “loud and clear on many occasions is that if you involve yourself in drugs the prospect of imprisonment is very high. The prevalence of narcotics offending justifies stern measures.” He also referred to Parliament doubling in 2009 the penalty for possession of marijuana from 7 to 14 years imprisonment.

I will deal firstly with the second defendant Sivai. I see no reason to treat you differently from your co-courier Fevi’ia’i. The Judge who dealt with Fevi’ia’is case adopted 5 years as an appropriate start point. For the purposes of consistency I adopt the same start point. But unlike Fevi’ia’i this defendants guilty plea was not entered at the earliest opportunity and it appears from the court file to have only been entered as a result of a plea bargain. Also unlike Fevi’ia’i this defendant continues to protest her innocence. She told the probation office that she met Fevi’ia’i on the ferry to Savaii and was unwittingly swept up in the capture in Savaii. She maintained to the probation office that she has been wrongly accused in this matter by the police.

This shows a lack of remorse for her offending. But her guilty plea to the charge against her has saved some of the courts limited resources and time. In acknowledgment of that I will deduct 3 months from her start point sentence. For her first offender status I will deduct a further 3 months from her sentence making a total deduction of 6 months. She qualifies for no other deductions for this matter.

Sivai is convicted and sentenced to 4 ½ years imprisonment. But the time she has spent in custody is to be deducted from that sentence.

As for the first defendant, he of course is the primary offender. He supplied the marijuana in question. Sufficient marijuana was in the suitcase to make according to the police over 10,000 cigarettes. Clearly such a quantity was for commercial purposes. Its transportation on the ferry to Savaii means it was destined for the Savaii drug market. Obviously from the quantity involved the drug trade there is alive and well, flourishing even. 9.6 kilograms of marijuana is one of the largest if not the largest ever marijuana haul in this country. At least the largest to date; and this was only one shipment that the police managed to intercept.
This community should be frightened that these sorts of quantities are floating around out there available by consumption by persons of all ages. Including the younger generation who statistics from the Ministry of Justice will confirm make up the bulk of narcotics offenders.
The experience of every overseas jurisdiction to date has been that large scale marijuana trafficking is the precursor or the prelude to introduction of hard drugs. We are seeing that trend emerge in this country with the growing number of prosecutions in the last few years for possession of cocaine and more recently for possession of methamphetamine or ‘ice’ as it is more commonly known.
The scourge of drugs must be resisted firmly. The court should not be hesitant to take a leading role in this fight, to urge and to provide incentives to our people to say ‘No to drugs’.
Even for Tagoiaega, I am sure he does not want his own children to do drugs. Of course he does not. No loving or sensible father would. But he was a key part of the distribution network that became apparent in this case.
The deterrent message to Tagoiaega and to everyone else must be unequivocal. Engaging in this kind of offending is a sure pathway to Tafaigata Prison. As this court has said in previous cases such as Police v Poliko [2011] WSSC 8 “because of the prevalence and seriousness of drug offending imprisonment would normally be the penalty. And the penalties on those who make a living out of selling drugs will be especially severe because they are at the heart of drug trafficking in this country.” To dealers and sellers of marijuana, the court says this: find something else to do. There is no profit or happy ending in doing drugs or being involved in the trade.
Considering all circumstances of the defendants offending and taking into consideration Parliaments concern at the growing nature of the drug problem in this country which led it three years ago to substantially increase penalties for marijuana and drug possession; and having regard to the commercial nature of the first defendants enterprise and the quantity of drugs involved in this matter; a 10 year start point for sentence is in my view appropriate. I upgrade that to 11 years to take account of this defendants previous conviction for narcotics offending.
But from that the defendant is entitled to certain deductions which his counsel has referred to. Firstly for his guilty plea. Normally a substantial deduction is allowed by the court for a guilty plea but in this defendants case he has the same problem as his co defendant: the plea was entered late and not at the first reasonable opportunity. It was entered as a result of a plea bargain and like Sivai, Tagoiaega continues to protest his innocence as evidenced from what he told the probation office. I will therefore only allow for his matter a 1 year deduction from the start point.
Normally he would also receive a deduction for being a first offender but he is not a first offender. Tagoiaega is not qualified for any other deductions.
In respect of the charge against him, he is convicted and sentenced to 10 years imprisonment but the time he has spent in custody is to be deducted from that term.

...........................
JUSTICE NELSON