Police v Webber [2016] WSSC 37 (18 March 2016)

IN THE SUPREME COURT OF SAMOA
Police v Stuart WEBBER & Anor [2016] WSSC 37

Case name:	Police v Stuart WEBBER & Anor
Citation:	[2016] WSSC 37
Decision date:	18 March 2016
Parties:	Police (informant) and Stuart WEBBER, male of Vailoa Faleata & Afiamalu and Andrea AH CHONG, female of Puipaa & Afiamalu (defendants)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Laulusāmanaia Justice Mata Tuatagaloa
On appeal from:
Order:	Stuart Webber Possession of Methamphetamine (convicted and sentenced to five years imprisonment). Possession of marijuana branches/loose leaves & Possession of 18 marijuana seeds (convicted and fined $500 forthwith, in default 3 months’ imprisonment on possession of 18 marijuana seeds is convicted and fined $200 forthwith in default 6 weeks imprisonment). Possession of Utensils: (convicted and sentenced to 3 months’ imprisonment). The defendant, Stuart Webber, is to serve the above sentences as follow with the possession of methamphetamine as the main offence: The sentence for possession of utensils of 3 months is to be served concurrent with the sentence for possession of methamphetamine; Should the defendant not pay the monetary fine or fines imposed, the in-default period will be cumulative to the sentence imposed for the possession of methamphetamine. This means that 3 months or 6 weeks or both is added on to the 5 years imprisonment. The sentence to less any time in custody. Andrea Ah Chong Convicted and sentenced to 12 months’ supervision with the following conditions: i. 60 hours’ community service; ii. Not to re-offend; and iii. Any other as directed by Probation Services.
Representation:	Mr O Tagaloa for the Prosecution Ms R Papalii for the Defendants
Catchwords:	Possession – narcotics – methamphetamine – marijuana – illegal substances – ‘ice’ – Class A drugs – Class B drugs – addiction to drugs –
Words and phrases:	R v Fatu sentencing bands for commercial dealings in Class A Drugs. Bands on sale, supply and importation.
Legislation cited:	Narcotics Act 1967 ss. 7, 18(a), 18(b), 13(b), 6(b),
Cases cited:	Police v Nguyen HC R v Fatu [2005] NZCA 278; [2005] 22 CRNZ 410 Police v Patau [2013] WSSC 120 (16 Aug 2013) Police v Scott Barlow (unreported,13 January 2014, Slicer J) Police v Faulkner [2007] WSSC 80
	Police v Rankin [2010] WSSC 22
Summary of decision:

IN THE SUPREME COURT OF Samoa

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

STUART WEBBER, male of Afiamalu and Vailoa, Faleata and
ANDREA AH CHONG, female of Afiamalu and Puipaa
Defendants

Counsel:
Mr O. Tagaloa for the Prosecution
Ms R. Papalii for the Defendants

Date: 18 Samoa 2016

SENTENCING OF JUSTICE TUATAGALOA

The charges:

1. Originally three charges were laid against the defendants – Stuart Webber and Andrea Ah Chong. Two joint charges (S3985/15, S3986/15) and one charge (S890/15) against the defendant Stuart Webber. The prosecution subsequently filed ten (10) additional joint charges against the defendants and including the defendant named Paramjit Kaur.
2. On 22 January 2016 the prosecution withdrew all charges against the defendant Paramjit Kaur; withdrew seven (7) charges against defendant Stuart Webber; and eight (8) charges against defendant Andrea Ah Chong.
3. The defendant Stuart Webber then pleaded guilty to four (4) charges:
   1. possession of a Class A narcotic, namely methamphetamine (S2572/15) with a penalty of life imprisonment (ss. 7 & 18(a) Narcotics Act 1967);
   2. possession of a Class B narcotic, namely sativa L cannabis known as marijuana (S2573/15) with a maximum penalty of 14 years’ imprisonment (ss. 7 & 18(b) Narcotics Act);
   3. possession of utensils for the commission of an offence (S2574/15) with penalty of maximum seven (7) years’ imprisonment (s. 13(b) Narcotics Act);
   4. possession of sativa L seeds (18) known as marijuana (S2568/15) with penalty of maximum 14 years’ imprisonment (s. 6(b) Narcotics Act).
4. The defendant Andrea Ah Chong also pleaded guilty to two charges:
   1. possession of marijuana (sativa L) seeds (S2568/15) with maximum 14 years’ imprisonment; and
   2. possession of marijuana (sativa L) branches and loose leaves (S2573/15) with maximum penalty 14 years’ imprisonment.
5. Ms Rosella Papalii appears for both defendants and Mr Ofisa Tagaloa appears for the prosecution.

The offending:

6. Both defendants confirm the summary of facts prepared by the prosecution which basically says that:
   • On 30 July 2015, the Police with a search warrant searched the defendants place at Afiamalu;
   • Both defendants were at home when the police searched the house and found the following:
     • − 16 marijuana branches weighing at 6.3 grams and loose leaves weighing at 4.3 grams;
     • − 18 marijuana seeds;
     • − 7 medium plastic bags containing methamphetamine weighing 24.7 grams;
     • − 7 small plastic bags containing methamphetamine weighing 1.4 grams;
     • − 2 glass pipes and 1 stainless steel socket.
7. The police also found $20,025.00 cash together with the illegal substances.

Submissions by the prosecution:

8. Counsel for the prosecution in his written submissions refers to the quantity of methamphetamine (better known as ‘ice’) found of 26.1 grams as quite a substantial amount. That the amount found could not have been for personal consumption alone but that the defendant, Stuart Webber was also selling because the methamphetamine found were found in self sealing bags of medium and small sizes.
9. Counsel refers to the affidavit of Detective Senior Sergeant John Francis Brunton of the New Zealand Police with experience in serious drug offending says at paragraph 6 “suppliers of methamphetamine will often be in possession of self-sealing bags of varying sizes. Different sized bags are used for various different dealing amounts.” He confirms the plastic bags as in photographs 20-23 & 32 as those that suppliers of meth use in distributing methamphetamine.
10. Given that there may not be a street value for methamphetamine in Samoa since this is one of a few cases of its possession in Samoa, Counsel referred to the New Zealand case of Police v Nguyen HC on the estimated value of one (1) gram of methamphetamine in New Zealand is NZD$1000 to give an idea of the value of methamphetamine on the street. In estimation then, 26.1 grams will be NZ $26,100.00 or ST$45,059.83.
11. Counsel for the prosecution also emphasizes the seriousness and harmful effects of this illegal drug. The increase in maximum penalty from seven (7) years for methamphetamine to life imprisonment shows Parliament’s concerns about this drug and its harmful effects. Therefore the need for deterrence.
12. Counsel refers to the few cases of Class A drugs of methamphetamine and cocaine dealt with by the Court. Counsel for the prosecution submitted that the courts should adopt the Bands provided in the New Zealand case of R v Fatu^[1] as adopted by Slicer J in Police v Patau^[2].
13. Counsel for the prosecution then submits 9 years as an appropriate starting point against the defendant, Stuart Webber.
14. For the defendant, Andrea Ah Chong, counsel for the prosecution seeks
    12 months supervision with conditions as the court see fit.

Submissions by counsel for the defendants:

15. Counsel for the defendants in her submissions asked the court when imposing sentence to consider the defendant, Stuart Webber’s addiction to drugs. That the reason why this defendant sells ‘íce’ is to feed his addiction. I find this submission by Counsel at odd with what this defendant say in the pre-sentence report that he bought the ‘ice’ from a person named Maku. In that regard he could have just bought it and use it instead of also selling it.
16. Counsel submits the need for this defendant to undergo treatment. Counsel refers to Police v Scott Barlow^[3] where the defendant’s addiction was considered by the court and the court sentenced Barlow to 18 months imprisonment, to be followed by 18 months rehabilitation and then 3 years supervision.
17. Counsel in her written submission asks the court to consider referring the defendant, Stuart Webber to the Alcohol and Drugs Court to undergo treatment. Counsel was informed that the defendant is not suitable for referral to the Alcohol and Drugs Court because the penalty for possession of methamphetamine is life imprisonment and is too serious a crime. The difference between Barlow (supra) and present case is that the court in Barlow accepts that the possession of methamphetamine was for personal use. This was the reason why Slicer J did not follow the bands in New Zealand case Fatu (supra) that he earlier adopted in Patau (supra). In the present case there is supply for gain in addition to personal use.
18. Counsel submits that the court is not bound by the bands as in Fatu (supra). She stressed in her oral submissions that the court should consider the quantity found of 26.1grams is not much compared to the other quantities found in the cases of Police v Faulkner^[4], Police v Patau^[5].
19. Furthermore, the court should not take into account the estimated value as submitted by the prosecution because those values are those in New Zealand and is based on the ‘purity’ of the methamphetamine. Counsel said that the defendant Stuart Webber told her that the methamphetamine found is not good stuff and therefore not pure. Pure or not the defendant was obviously getting a lot of money from selling it because there was also $20,085 cash found during the police search.
20. Whatever may be the going rate or street value in Samoa the court believes it will not be cheap. It is well known that meth or ‘ice’ as is well known is not cheap and only those who can afford would buy it. The estimation street value in New Zealand is then helpful to get an idea of the value of meth. Because if that is the estimated street value in New Zealand it would also certainly not cheap here in Samoa.
21. Counsel then in her written submission asks the court to consider the first offender status of the defendants and their change of plea has certainly saved the court’s time. She is aware that a custodial sentence for the defendant Stuart Webber is inevitable but for the defendant Andrea Ah Chong who is only charged with possession of marijuana branch, loose leaves and possession of marijuana seeds (18) she asks for a non-custodial sentence.

Discussion:

22. There have been few sentences imposed by the Court in relation to Class A drugs in which methamphetamine and cocaine are classified under. Slicer J in Patau (supra) made the following observations:
    • In Police v Faulkner [2007] WSSC 80. The learned Chief Justice commented on the inadequacy of the statutory maximum of 7 years for such an offence at the time. His Honour also noted that the amount found was for commercial gain and in sentencing paid regard to the quantity and street value of the drugs found. The Chief Justice imposed a sentence of 6 years and 4 months’ imprisonment for the possession of 555 grams of cocaine.
    • In 2009 the Narcotics Act was amended and the penalty for possession of Class A drugs was increased from 7 years to life imprisonment. In Police v Rankin^[6] before the 2009 amendments were proclaimed, the maximum was still 7 years’ imprisonment. Nelson J imposed a 19 months imprisonment term for 0.5 grams of marijuana and 3.3 grams of methamphetamine. The Court in Rankin accepted that possession was for personal use.
    • The New Zealand Parliament in reclassifying methamphetamine as a Class A drug thereby increasing the penalty for commercial dealing to life imprisonment accords with the legislative approach of the Samoan legislation of 2009.
23. In Police v Patau (supra) the amendments to Narcotics Act have come into effect where the penalty was then increased from 7 years to life imprisonment. Slicer J commented that possession of 60.15 grams of methamphetamine formed part of an unsuccessful act of importation and although the act was for personal use, the quantity was commercial. The learned Judge adopted the lower end of band 2 on importing of Class A drugs and imposed and end sentence of 3 years and 8 months imprisonment.
24. Slicer J took note of the bands in R v Fatu (supra) which bands are for commercial dealings in Class A Drugs and therefore . The bands are: one on sale and supply, and one on importation. The Judges in Fatu (supra) considered that in cases involving importation and supply, consideration of commerciality may be significant at page 32:
    • “In cases involving importation or 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 (or beneath) the bands postulated at [34]. 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 by 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].”
25. In Police v Scott Barlow^[7] the Court on possession of 0.5 gram marijuana joint, 0.4 grams marijuana leaves, and 14.38 grams methamphetamine imposed a sentence of 18 months’ imprisonment to be followed by 18 months’ rehabilitation, and then three years’ supervision. The Court accepts that the possession was for personal use.
26. In Police v Roy Williams^[8] on possession of 0.2 grams of methamphetamine, the Court agreed with Slicer J in Patau (supra) and the bands as in R v Fatu (supra) and adopted the lower end of Band 2 on sale and supply and imposed an end sentence of 12 months’ imprisonment taking into account the quantity of methamphetamine as very small; and with possession of 3,647 marijuana seeds the Court imposed an end sentence of five years’ imprisonment. The sentences are to be served concurrently. Nelson J did not in his judgment say whether there was any evidence of the defendant dealing or selling methamphetamine. Although the amount of methamphetamine found was very small, the learned judge nevertheless adopted band 2 in Fatu (supra) on sale and supply which bands are for commercial dealing in Class A drugs. That means the bands do not apply to personal use.
27. In the present case possession was not only for personal use but was also obviously supply for gain so there is the existence of commerciality. The defendant Stuart Webber admitted that he not only uses methamphetamine but also deals or sells it.
28. The Court has regard to the intention of Parliament in increasing the penalty for Class A narcotics. It is an indication of Parliament’s serious concern about the presence of hard drugs in the community and its harmful effects. I agree with the Chief Justice in Faulkner (supra) that deterrence is of particular significance at this stage with these hard drugs before it becomes a very serious problem in this country.

The defendants:

Stuart Webber:

29. The defendant Stuart Webber is 45 years’ old of Vailoa, Faleata and Afiamalu. The defendant whilst young moved with his mother to American Samoa. He spent most of his life in American Samoa and United States of America and only came to Samoa in 2003. He was married and has three children from previous relationships. He married his co-defendant, Andrea Ah Chong in December 2015.
30. The defendant himself admitted in the pre-sentence report that he has long history with marijuana and methamphetamine. He said in the same report that he not only uses both but that he sells the methamphetamine as well. Webber said in the pre-sentence report that he gets about $25,000 from selling methamphetamine. The police also found about $20,025 cash when they searched the defendants house.
31. The pre-sentence report has the defendant, Stuart Webber, saying that he bought the marijuana substances from a stranger at the market for $20.00; whereas the methamphetamine he bought from a person named ‘Maku’ who has since passed away. He admits in the pre-sentence report that he would get about $25,000.00 from selling methamphetamine. Of that money he keeps his share of up to $5,000.00 and the rest he said goes to this person named ‘Maku’. The tools or utensils found were also bought from a friend whom he did not say the name.
32. Stuart is a user and dealer of methamphetamine. What I don’t understand is he said he bought the methamphetamine from Maku but then gives most of the money to this person whom he bought the methamphetamine from in the first place. It does not make sense. The Court thinks that defendant Stuart Webber is not being honest, and does not want to reveal the true identities and status of his suppliers.
33. There are several testimonials attached to the pre-sentence report on Stuart Webber that he is a good man, straightforward and honest which the court has doubts about his honesty.

Andrea Ah Chong:

34. Ms Ah Chong, on the other hand, had a good education and did one year at Auckland University of Technology. Her parents divorced when she was at college. Both parents seemed to be of able means with the mother running a motel business where Ms Ah Chong was helping. Ms Ah Chong had a disagreement with her mother and moved in with the co-defendant, Stuart Webber two (2) months before the police raid. The pre-sentence report says she married the co-defendant Stuart Webber in December 2015.
35. The pre-sentence report says Andrea knows that her co-defendant uses marijuana but does not know of his methamphetamine use. Her co-defendant Stuart Webber confirmed with probation that Andrea knows of his marijuana use but not his methamphetamine use and dealing.
36. There are testimonials from various people vouching for Andrea’s good character and that she is aggressive, intelligent and innovative. She is no doubt intelligent and someone with a bright future who rebelled against her mother and got mixed up with the co-defendant.
37. In fixing the starting point the court considers the following.

The aggravating factors:

1. Quantity of methamphetamine found of 26.1 grams is not a small amount in a small country like Samoa.
2. Potential value of the methamphetamine found. Given that the defendant Stuart Webber admitted to selling it and the amount of $20,025 cash was also found one can certainly say that the amount of methamphetamine found would have been higher. The cash found is by no means a small amount but quite a substantial amount. There was commerciality involved.
3. The serious effect and impact of methamphetamine
4. Quantity of marijuana found goes to show that the defendant, Stuart Webber, is a drug user of not only methamphetamine but also marijuana. This defendant in the pre-sentence report admitted to a long history with methamphetamine and marijuana use. As with the defendant Andrea Ah Chong there is no evidence of her using marijuana. She is what one would say she was at the wrong place at the wrong time.

The mitigating factors:

38. The only mitigating feature of the offending is the defendants’ guilty pleas after several charges were dropped by the prosecution. Although they did not plead guilty in the first opportunity, their change of plea after the prosecution withdrew several of their charges has saved the Court from going to a trial that would have taken up five days or more of its time. They would nevertheless be entitled to 1/3 discount. Both defendants are also first offenders. I agree with Ms Papalii for the defendants that first offender status is linked to good character which is always a mitigating factor. The testimonials provided by various people affirm that the defendants are people of previous good character or _ehaviour.

The decision:

39. For the purpose of this sentence regard is to the quantity and potential value of the methamphetamine given that the defendant Stuart Webber admitted to selling the methamphetamine.

Stuart Webber

Possession of Methamphetamine:

40. Given the aggravating factors and the circumstances of this case, the Court adopts Band 2 in R v Fatu (supra) on sale or supply of methamphetamine and have 8 ½ years as starting point. The defendant has no prior history of misconduct, is well regarded by members of his family and church. He deserves 12 months to be deducted. The defendant is also entitled to 1/3 discount for his change of plea which I considered to be an early plea because once the prosecutions withdrew all the other charges the defendant changed his plea.
41. The defendant is convicted and sentenced to five years imprisonment.

Possession of marijuana branches/loose leaves:
Possession of 18 marijuana seeds:

42. The amount found and no evidence of any commerciality involved with these substances mean that it is for personal use.
43. The prosecution estimated that 16 branches weighing at 6.3 grams and loose leaves weighing at 6.3grams are estimated to produce 15 marijuana joints.
44. The defendant on possession of 16 marijuana branches and loose leaves is convicted and fined $500 forthwith, in default 3 months’ imprisonment.
45. The defendant on possession of 18 marijuana seeds is convicted and fined $200 forthwith in default 6 weeks imprisonment.

Possession of Utensils: (2 glass pipes and one stainless steel socket).

46. The defendant told probation in the pre-sentence report that he used the socket to smoke marijuana and the pipes for the consumption of methamphetamine. The penalty is not more than 7 years’ imprisonment.
47. The defendant is convicted and sentenced to 3 months’ imprisonment.
48. The defendant, Stuart Webber, is to serve the above sentences as follow with the possession of methamphetamine as the main offence:
    1. The sentence for possession of utensils of 3 months is to be served concurrent with the sentence for possession of methamphetamine;
    2. Should the defendant not pay the monetary fine or fines imposed, the in-default period will be cumulative to the sentence imposed for the possession of methamphetamine. This means that 3 months or 6 weeks or both is added on to the 5 years imprisonment.
    3. The sentence to less any time in custody.

Andrea Ah Chong

Possession of 18 marijuana branches/loose leaves
Possession of 18 marijuana seeds

49. There is no evidence of any commerciality involved with these marijuana substances. There is also no evidence that this defendant is a user of marijuana. As I said earlier on she was at the wrong place at the wrong time. In the words of her Counsel “Her crime is she fell in love with Stuart without any knowledge of the activities he was engaged in”.
50. The defendant, Andrea Ah Chong, is convicted and sentenced to 12 months’ supervision with the following conditions:
    1. 60 hours’ community service;
    2. Not to re-offend; and
    3. Any other as directed by Probation Services.
       

_________________________

JUSTICE TUATAGALOA

---

^[1] [2005] 22 CRNZ 410
^[2] [2013] WSSC 120 (16 Aug 2013)
^[3] (unreported,13 January 2014, Slicer J)
^[4] [2007} WSSC 80, CJ
^[5] [2013] WSSC 120 (16 August 2013), Slicer J
^[6] [2010] WSSC 22
^[7] Unreported (13 January 2014) Slicer J
^[8] [2014] WSSC 153 (14 July 2014) Nelson J