Police v Tevaga [2016] WSSC 38 (21 March 2016)

IN THE SUPREME COURT OF SAMOA
Police v Tevaga [2016] WSSC 38

Case name:	Police v Tevaga
Citation:	[2016] WSSC 38
Decision date:	21 March 2016
Parties:	POLICE (Prosecution) PANAMA TEVAGA, male of Ululoloa and Leauvaa. (Defendant)
Hearing date(s):	-
File number(s):	S2776/15, S2777/15, S2778/15, S2779/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of possession of methamphetamine you will be convicted and sentenced to 12 months in prison. Any time spent in custody awaiting sentence to be deducted from that 12 months. On the second charge of possession of 2.6 grams of marijuana leaves and twenty three (23) branches, considering the relatively small quantity involved and other relevant factors and making the same kinds of deductions, convicted and sentenced to 6 months in prison, concurrent to your 12 months. On the third charge of possession of forty three (43) marijuana seeds likewise convicted and sentenced to 6 months in prison also a concurrent term. On the final charge of possession of utensils likewise convicted and sentenced to 6 months in prison also a concurrent term. In other words the total term that you will serve for these offences is 12 months in prison less any custody time.
Representation:	O Tagaloa for prosecution P Mulitalo for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Police v Patau [2013] WSSC 120
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PANAMA TEVAGA male of Ululoloa and Leauvaa.
Defendant

Counsel: O Tagaloa for prosecution
P Mulitalo for defendant.

Sentence: 21 March 2016

SENTENCE

1. Illicit narcotics is the scourge of many a society and Samoa is becoming no exception. This has led to initiatives such as the Drug and Alcohol Court being set up and to Parliament doubling the maximum penalty for possession of marijuana and marijuana seeds from 7 to 14 years in prison. And Parliament making possession of the so-called harder drugs such as methamphetamine also known as ‘ice’ punishable by a maximum of life in prison. That puts possession of methamphetamine or ice on par with serious criminal offences such as rape, murder and manslaughter.
2. The defendant here has pleaded guilty to a number of narcotics charges namely S2778/15 possession of methamphetamine; information S27776/15 possession of marijuana leaves and branches; information S2779/15 possession of marijuana seeds; maximum 14 years and finally the defendant pleaded guilty to information 2777/15, possession of utensils for use in narcotics offending, maximum 7 years in prison.
3. The prosecution summary of facts which does not appear to be disputed says the defendant is a 40 year old male of Ululoloa and Leauvaa in a defacto relationship and runs a taxi business. At the time of the offending he was renting premises at Ululoloa together with co-defendants who have pleaded not guilty to the charges. All defendants were under suspicion by the police for being involved in distributing drugs. And according to the summary of facts they moved from place to place.
4. In the early morning hours of 22 August 2015 the police raided the defendants premises or house at Ululoloa. At that time only he was home. As a result of that raid was discovered the substances which are the subject of the four charges. Defendants counsel has submitted that some of these narcotics did not belong to the defendant, they belong to his co-defendants. That submission however is negated by the fact that the defendant has pleaded guilty to being in possession of all these narcotics and to the charge involving the utensils. There is no clearer indication of who the narcotics belong to than those guilty pleas.
5. I will deal with the most serious of the charges first namely possession of the methamphetamine. In respect of this charge there is no question an imprisonment penalty must be imposed. To mark the seriousness of the offending. To deter not only the defendant from future involvement with such illegal narcotics and to send a loud and clear message to others that if you involve yourself with methamphetamine it is likely you will be spending time in either Tafaigata or Vaiaata. All other defendants who have previously appeared before the court on possession of methamphetamine have received imprisonment penalties and it is highly likely that will continue to be the case.
6. The approach to sentencing for possession of methamphetamine is set out in those previous decisions most particularly in the matter of Police v Patau [2013] WSSC 120. Which lays down a band sentencing approach in relation to possession of methamphetamine based on various factors. But those band sentences are applicable to cases of sale and supply of methamphetamine. The court in Patau noted that where there is a complete absence of commerciality and aggravating features for example such as the supply of drugs to school children or young people, sentencing may be carried out beneath the postulated bands.
7. There is no evidence before me the defendant was involved in the sale or supply of methamphetamine. Suspicion is insufficient. All indications are that what he had was for personal use by himself and his friends. The band approach in Patau does not apply. The question remaining however is what is the appropriate start point for sentence considering what I have referred to earlier and considering the maximum penalty of life in prison.
8. I have reflected on this because although the quantity of methamphetamine involved in this case is relatively small (3.2 grams), it is of concern to the court that the harder type narcotics seem to be taking root in our community. As evidenced by the increasing number of cases coming before the court involving Class A drugs in recent years. It used to be that marijuana a Class B drug was the flavour of the day but that seems no longer the case. Methamphetamine and cocaine are emerging as new players in the drug market. Experience shows probably as pre-cursers of even harder and more addictive narcotics.
9. The court must by its penalty soundly discourage such a trend. And do all that is possible to stamp out this growing trend before the problem becomes as entrenched in Samoan society as is the use and consumption of marijuana. I have therefore adopted as a start point for sentence a period of 2 years in prison. To reflect the seriousness with which the court regards possession of methamphetamine, notwithstanding that it was only for personal use.
10. There are deductions from that start point that your lawyer has correctly reminded the court you are eligible for. Firstly for your guilty plea which has saved the State and the courts limited time and resources, I deduct one-quarter of the penalty a period of 6 months, leaves a balance of 18 months.
11. You have a clean criminal record in this country, your pre-sentence report is a good one and sets out your background of service to your family including your partners family. But that is only for the period that you have been in Samoa. I cannot give you credit for the period before that. Because it appears from what I have read that you were then resident overseas and it was only about 10 years ago that you were deported from Hawaii. However I will give you some measure of credit for that record and your background of service in this country. I will give you half the normal credit that is given for such matters a period of three (3) months deducted from 18 months, leaves 15 months in prison.
12. Your counsel also referred to the fact that you are co-operating with police enquiries into the use of methamphetamine. That is worth a credit to you in my assessment a further 3 months, leaves a balance of 12 months in prison.
13. No other deductions are available to be made for your sentence Panama. On the charge of possession of methamphetamine you will be convicted and sentenced to 12 months in prison. Any time spent in custody awaiting sentence to be deducted from that 12 months.
14. On the second charge of possession of 2.6 grams of marijuana leaves and twenty three (23) branches, considering the relatively small quantity involved and other relevant factors and making the same kinds of deductions, convicted and sentenced to 6 months in prison, concurrent to your 12 months.
15. On the third charge of possession of forty three (43) marijuana seeds likewise convicted and sentenced to 6 months in prison also a concurrent term.
16. On the final charge of possession of utensils likewise convicted and sentenced to 6 months in prison also a concurrent term. In other words the total term that you will serve for these offences is 12 months in prison less any custody time.
    

JUSTICE NELSON