NPO v Tulua [2016] WSSC 46 (15 March 2016)

SUPREME COURT OF SAMOA
NPO v Tulua [2016] WSSC 46

Case name:	NPO v Tulua
Citation:	[2016] WSSC 46
Decision date:	15 March 2016
Parties:	NATIONAL PROSECUTION OFFICE v MEFIPOSETA TULUA male of Lotopa.
Hearing date(s):	15 March 2016
File number(s):
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The motion for a forfeiture order is therefore dismissed.
Representation:	O Tagaloa and B Faafiti-Lo Tam for applicant A Sua for respondent
Catchwords:	Proceedings by way of a motion – tainted property – onus of proof -
Words and phrases:	application for a forfeiture order in respect of tainted property -
Legislation cited:	Proceeds of Crimes Act 2013 s.14 (1) (a)
Cases cited:	Attorney General v Magele Fiti [2014] WSSC 63 Attorney General v Filipaina [2012] WSCA 1 Solicitor General of New Zealand v Wikitera and Palmer [2010] NZHC 908
	Solicitor General v Moss
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER

of an application for forfeiture order pursuant to sections 14 of the Proceeds of Crime Act 2007.

BETWEEN

NATIONAL PROSECUTION OFFICE
Applicant

A N D

MEFIPOSETA TULUA male of Lotopa.
Respondent

Counsel:
O Tagaloa and B Faafiti-Lo Tam for applicant
A Sua for respondent

Hearing: 15 March 2016

Judgment: 15 March 2016

JUDGMENT OF SAPOLU CJ

The proceedings

1. The newly established National Prosecution Office has brought a motion under s.14 (1) (a) of the Proceeds of Crimes Act 2013 for a forfeiture order in respect of a vehicle, namely, a 2003 Toyota White Matrix Station Wagon number 14030 registered under the name of the applicant Mefiposeta Tulua of Lotopa, claiming that the vehicle is “tainted property” being an “instrument” as those terms are defined in s.2 of the Act.
2. Proceedings by way of a motion or application for a forfeiture order in respect of tainted property is civil and not criminal. In terms of s.80, the onus of proof is on the applicant and the standard of proof is on the balance of probabilities.
3. The motion by the applicant is strongly opposed by the respondent. The evidence for both parties was adduced by way of affidavits. It was not necessary to call any oral testimony. The affidavit evidence is sufficient for present purposes.

Background

4. According to the evidence of constable Faleolo Lifa, between 11:00am and 12 noon on Sunday 15 November 2015, he and another police officer attended a call from Malolelei in a police vehicle. On their way down the Cross Island Road to return to Apia, they noticed a vehicle at Vaoala pulled out onto the road in front of them. The windows of the police vehicle were down and it was a fine day. Constable Faleolo says that when that vehicle accelerated, a gust of wind carrying a strong odour of marijuana came through his window. The police then followed behind that vehicle. The Apia police station was contacted for back up as constable Faleolo was suspicious that there may be some dangerous weapons in the other vehicle. When that vehicle stopped at the Scoops ice cream shop at Matautu, constable Faleolo and the backup team of police officers approached the driver and the passengers who were in the vehicle. The driver is the present respondent. He was advised to drive his vehicle to the Apia police station as the police suspected that there were marijuana inside his vehicle. At the Apia police station, the respondent was told to park his vehicle in the police car park area. That was sometime after 3:00pm in the afternoon.
5. According to the evidence of corporal Papalii Vainuupo Papalii, he and other police officers together with two police dogs trained to conduct searches for narcotics searched the respondent’s vehicle at the police car park area. Corporal Aasa Afoa in his evidence says that the respondent and the passengers who were in the vehicle were present while the police were carrying out the search. The police found a half marijuana joint in the coins compartment just above the gear box, a small marijuana branch on the floor mat on the driver’s side, and two straws used as utensils for sniffing narcotics in a CD cover between the driver’s seat and the front passenger’s seat.
6. According to the evidence of constable Onosai Fetuia’i, the half marijuana joint and the small marijuana branch weighed 0.1 gram. If the weight of the branch is to be subtracted because it is non-consumable, then the weight of the half marijuana joint would be less than 0.1 gram.
7. The respondent and his witnesses deny that they were smoking marijuana inside their vehicle. I need not decide for present purposes whether to believe them. The respondent says that he and two of the four passengers in the vehicle were smoking pall mall red cigarettes. However, they do not deny that the police found marijuana substances and utensils in the vehicle they were using.
8. The respondent also says that the vehicle is a product of the savings that he and his partner (wife) have made from their catering business. It is their first and only vehicle. It was purchased in 2014. The vehicle is used not only for their catering business which happened at least twice a month but for their family to travel to places, to do their shopping and their other family errands. The respondent estimates the current value of his vehicle to be about $7,000 to $8,000. The valuation given by the police is $8,000. The evidence of the respondent’s partner is generally confirmatory of the respondent’s evidence.
9. Following police investigation, the respondent was charged with one count of possession of narcotics in relation to the possession of the half marijuana joint and one count of possession of utensils for the purpose of committing an offence against the Narcotics Act 1967 in relation to the two straws. The respondent pleaded guilty to both counts.

The relevant provisions of the Proceeds of Crime Act 2007

10. The Proceeds of Crime Act 2007 provides for two kinds of tainted property, namely, proceeds of crime or an instrument. The applicant claims that the vehicle in this case is an “instrument” in terms of the Act. Section 2 of the Act relevantly provides:
    • “ ‘instrument’ in relation to property, means the property:
      • (a) is used in, or in connection with, the commission of a serious offence”.
11. There is no dispute that the offences to which the respondent has pleaded guilty are “serious offences” in terms of s.2. What is in dispute is that counsel for the respondent contends that the vehicle is not an instrument in terms of the Act and therefore is not tainted property. He says that is because the vehicle was not used in, or in connection with, the commission of the offences of possession to which the respondent has pleaded guilty. I disagree. The marijuana substances and utensils were found by the police inside the respondent’s vehicle he was driving. The vehicle was plainly “used in, or in connection with, the commission” of the offences with which the respondent was charged and to which he pleaded guilty. It is therefore tainted property.
12. Section 14 (1) (a) provides for the making of an application to the Court for a forfeiture order. Counsel for the applicant submits that the proper applicant is the National Prosecution Office and not the Director of Public Prosecutions. Counsel for the respondent did not want to submit on this point. I will therefore say no more about it but assume for present purposes that the proper applicant is the National Prosecution Office.
13. The most relevant provision of the Act to these proceedings is s.19. Section 19 (1) provides:
    • “(1) Where, upon application by the National Prosecution Office, the Court is satisfied that property is tainted property in respect of a serious offence of which a person has been convicted, the Court may order that the property, or so much of the property as is specified by the Court in the order is forfeited to the State”.
14. It appears from s.19 (1) that the power of the Court to make a forfeiture order in respect of tainted property is entirely discretionary. Simply because the Court is satisfied that a property is tainted property does not mean that a forfeiture order will inevitably follow. The Court has a discretion to exercise. That discretion and the factors that may be taken into account in its exercise appear in s.19 (4) which provides:

“(4) In considering whether to make a forfeiture order against property, the Court may take into account:

(a) any right or interest of a third party in the property; and

(b) any hardship that may reasonably be expected to be caused to any person by the operation of the order; and

(c) the use that is ordinarily made of the property or the use to which the property was intended to be put.

15. An issue that has arisen to my mind is whether the factors to be taken into account by the Court as listed in s.19 (4) are to be taken as exhaustive. This is because counsel for the respondent in his submissions argues that to make a forfeiture order in this case would be a disproportionately severe additional punishment given the small quantity of substances with which the respondent was charged. However, proportionality or disproportionality is not one of the factors expressly listed in s.19 (4). Ms Faafiti-Lo Tam for the applicant quite properly conceded that the factors provided in s.19 (4) are not to be treated as an exhaustive list. This would be consistent with s.15 (2) of the Proceeds of Crime Act 1961 (NZ) which provides the factors the Court may take into account in considering whether to make a forfeiture order and then states “any other matter relating to the nature and circumstances of the offence or offender” may be taken into account.

The s.19 (4) factors

16. To assist with future applications for forfeiture orders against tainted property, I refer to Solicitor General of New Zealand v Wikitera and Palmer [2010] NZHC 908 where Andrews J stated at para [18]:
    • “The s.15 (2) factors have been discussed in many judgments on forfeiture applications. A helpful summary of the principles that may be gleaned from the authorities is contained in the judgment of White J in Solicitor General v Moss HC Tauranga CIV – 2009 – 470 – 320, 5 May 2010 at [52]. Those principles are:

(a) A forfeiture order is an additional penalty provided by Parliament as a deterrent. The offender is sentenced for his crime, and in addition any of his property used to commit or to facilitate the crime is liable to forfeiture. If this is draconian, that appears to be the intention of the legislation.

(b) Those who commit serious drug related offences in or from their properties can normally expect to lose them unless there is gross or severe disproportion between the gravity of the offending and the value of the property sought to be forfeited coupled with the other punishment inflicted on the offender.

(c) The fact that the property had been acquired by previous honest endeavours and that the offences were discovered before the criminal had enjoyed much of their intended fruits is not a sufficient reason why forfeiture should not be ordered.

(d) When considering the ‘use’ of the property under s.15 (2)

(a), the focus should be on the ‘predominant’ or ‘significant’ use of the property.

(e) In considering ‘hardship’ under s.15 (2) (b), it needs to be recognised that there will always be some hardship to an offender and sometimes to a third party when a forfeiture order is made. It stems from the operation of the Act and is disregarded. The question is whether that hardship is ‘undue’.

(f) The issues of forfeiture may give rise to the question of disproportionality under s.9 of the New Zealand Bill of Rights Act.

(g) There is always an overlap between disproportionality and undue hardship under s.15 (2) (b). A useful nonexclusive list of factors that would weigh include –

(i) the value of the property;
(ii) the nature of the offender’s interest;
(iii) the value of the drugs involved;
(iv) whether the property was acquired with the proceeds of sale of drugs
(v) the utility of the property to the offender;
(vi) the length of ownership;
(vii) the extent to which the property is connected with the commission of the offence;
(viii) the fact that the forfeiture provisions are intended as a deterrent to drug dealer; and
(ix) the interests of innocent third parties.

(a) The question the judge should ask is whether the forfeiture of the present equity in the property is disproportionate to the appellant’s offending.

(b) The property does not have to be purchased for the purpose of the offending.

(c) The reasons for committing the crime are ordinarily immaterial.

(d) To determine the economic benefits derived by the offender as a result of the offending, it is necessary to assess the value and scale of [the offending] and the ultimate yield of [the offending].

Consideration of the s.19(4) factors

(a) Interest of a third party

17. The vehicle in this case was purchased in 2014 with monies from the catering business operated by the respondent and his partner which is a legitimate source. The partner who was not involved in the respondent’s offending would be a third party with an interest in the vehicle. Her interest would be proportional to her contributions to the purchase price of the vehicle and any improvements done to the vehicle.

(b) Gravity of the offence

18. The quantity of marijuana substances in the respondent’s offending is a half marijuana joint and a small marijuana branch with a total weight of 0.1 gram. The branch is non-consumable. There were also two straws used for sniffing narcotics. It would appear that these substances and utensils were for the respondent’s own personal use and not for any commercial purpose. The gravity of the offending is at the low end of the scale.

(c) Hardship

19. In Attorney General v Magele Fiti [2014] WSSC 63 at para 32, this Court expressed the view that “hardship” in terms of s.19 (4) would have to be “undue hardship” in order to qualify for consideration as a s.19 (4) factor because a forfeiture order will always result in some hardship to the offender and sometimes to a third party. If a forfeiture order is made in this case, it would mean that the respondent would be deprived of the ownership and use of the vehicle in connection with his catering business and his family. There will also be hardship to his partner. However, I do not consider this hardship to be undue.

(d) The use ordinarily made of the property

20. Even though the vehicle is used in connection with the catering business by the respondent and his wife that happens at least twice a month. The predominant use of the vehicle is for family errands and travelling places. The vehicle is not ordinarily used for committing narcotic offences. There is also no evidence that the vehicle had been used before in, or in connection with, the possession of narcotics.

(e) Proportionality

21. The vehicle is worth $8,000. The value of the marijuana substances and utensils found in the vehicle would be minimal and insignificant. The value of the vehicle far exceeds the value of the marijuana substances and utensils. The gravity of the offending is at the low end of the scale.
22. In the case of Attorney General v Filipaina [2012] WSCA 1 cited for the applicant, the vehicle that was forfeited as tainted property was of negligible value. Two orders were made in that case. A pecuniary penalty order against the respondent forfeiting $1,322 cash as proceeds of crime and therefore tainted property and a forfeiture order against the vehicle as tainted property. Found in the respondent’s vehicle was the $1,322 cash and a pistol loaded with ten bullets. The totality of that offending was much more serious than the present offending. It suggests “dealing in narcotics” whereas in this case there is no evidence to suggest such dealing.

Conclusion

23. Taking all the above matters into account, I have come to the conclusion that it is not appropriate to make a forfeiture order against the vehicle. The motion for a forfeiture order is therefore dismissed.

CHIEF JUSTICE