Police v Barlow [2017] WSSC 163 (28 November 2017)

SUPREME COURT OF SAMOA
Police v Barlow [2017] WSSC 163

Case name:	Police v Barlow and Vagana
Citation:	[2017] WSSC 163
Sentence date:	28 November 2017
Parties:	POLICE (Prosecution) v SCOTT BARLOW male of Ululoloa and FATU VAGANA male of Salelavalu and Nuuuli ,American Samoa Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from: Order:	Barlow-Convicted and sentenced to 4 years imprisonment for possession of methamphetamine. The accused is convicted and sentenced to 12 months imprisonment for the possession of utensil. Both sentences are concurrent. Any time spent in custody is to be deducted Vagana- Convicted and sentenced to 4 ½ years imprisonment for possession of methamphetamine. Any time spent in custody is to be deducted
Representation:	O Tagaloa and A Matalasi for Prosecution S Leung Wai for the First- Named Accused J Brunt for the Second-Named Accused
Catchwords:	Possession of Narcotics Possession of Utensil
Words and phrases:
Legislation cited:	Narcotics Act 1967, section 7(1)(a) and 18(a) Narcotics Act 1967, secion 13 (b)
Cases cited:	Police v Patau [2013] WSSC 120- 60.15 Police v Williams [2014] WSSC153-0.2 Police v Scott Barlow (Unreported 13 January 2014 per Slicer J)-14.38 Police v Webber [2016] WSSC 37-26.1 Police v Tevaga [2016] WSSC 38- 3.2
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SCOTT BARLOW male of Ululoloa and FATU VAGANA male of Salelavalu and Nuuuli, American Samoa
Accused

Counsel:
O Tagaloa and A Matalasi for Prosecution
S Leung Wai for the First-Named Accused
J Brunt for the Second-Named Accused

Sentence: 28 November 2017

SENTENCE

The Charges

1. On 3 November 2017, after a defended hearing, I found the accused guilty of one joint charge of knowingly have (ving) in their possession Narcotics namely methamphetamine (three(3) small plastic bags containing methamphetamine weighing at 5.9 grams), pursuant to sections 7(1)(a) and 18(a) of the Narcotics Act 1967 (the ‘Act’) for which the penalty is life imprisonment.
2. I also found the first named accused guilty of knowingly has (having) in his possession a utensil, namely, one(1) glass pipe for the purpose to commit an offence against this Act, pursuant to section 13(b) of the Narcotics Act 1967(the ‘Act’), which carries a maximum penalty of 7 years imprisonment or a fine not exceeding 200 penalty units ($20,000) or both.

The offending

3. According to the evidence, on 28 June 2017 the first named accused Scott and the second named accused Fatu went in a taxi to Fagalii airport. Scott went inside the airport to allegedly uplift an envelope addressed to a ‘Penina Setu’ arriving on a Talofa Airways flight from American Samoa. Fatu waited in the taxi with the taxi driver in the car park of the airport. As it turns out, what had arrived from American Samoa was a bag for ‘Penina Setu’. Upon the bag being searched by a Customs officer, 3 packets of methamphetamine were discovered. The taxi was searched by Police and a glass pipe was found in the taxi. This glass pipe had been brought out of Scott’s car at home and put into the taxi by the taxi driver on Scott’s instruction.
4. Both Scott and Fatu knew about the arrival of the drugs and went to pick up the drugs. Fatu knew the names of the sender and receiver and told Scott these names.
5. The methamphetamine was confirmed through testing at the Scientific Research Organisation of Samoa. The quantity of methamphetamine in the 3 packets was 5.9 grams in total.

The first named accused

6. Scott is 42 years old. He is married with 2 children from his current wife and 3 from an earlier marriage who are in New Zealand. He contributes financially to his older children in New Zealand.
7. Scott was involved in the family business and doing maintenance around their home. He runs errands and looks after their two children by picking them up and dropping them off to school.
8. His wife has been pressured as a result of this offending. They had planned to take their children to New Zealand for education next year. She is concerned that Scott is depressed. She remains supportive of him and has noticed positive changes in his character during his time in custody.
9. The accused has previous convictions in 2014, two for possession of narcotics, 2 for possession of utensils and in 2017 for possession of firearm, presenting firearm and breach of sentence conditions.

The second-named accused

10. Fatu Vagana is 46 years old. He is married with 6 children, aged 13 to 25 years. His family lives in American Samoa, although he says they have now relocated to the United States of America because of his offending.
11. He was adopted by a family friend in American Samoa and has lived there for many years. He worked for Starkist Cannery Company for 25 years before he left due to health reasons. He then started driving a bus.
12. Fatu’s brother in Savaii says that Fatu is generous and giving. He says Fatu is quiet and chooses to care for their mother, rather than socialise.
13. There are 3 written character testimonials from his Minister, Pulenuu and family chief.
14. Fatu continues to deny the charge against him to Probation.
15. He is a first offender.

Aggravating features of the offending

16. Attempting to bring into the country a Class A narcotic is an aggravating feature of this offending. It shows a high level of brashness in the commission of this offence. Fatu organised the importation of the drugs and Scott went inside the airport to clear the drugs through Customs and Quarantine. I find Fatu’s culpability to be higher than Scott’s who went to uplift the narcotics.
17. There is a high level of premeditation on the part of Fatu who organised the importation of the narcotics. There is also, I find, premeditation to a lesser extent on the part of Scott found in his active participation in going to the airport with Fatu in a taxi which he organised, going inside the airport and attempting to clear the bag from Customs and Quarantine.
18. The offending had a commercial intent behind it given the evidence. Fatu says he does not consume narcotics. I found that Fatu wanted help to sell the narcotics and Scott had agreed, while also hoping to smoke some himself. This commercial intent further aggravates this offending.

Aggravating features in respect of the first named accused Scott

19. The Court considers that it is an aggravating feature in respect of the first named accused that he has a previous conviction for possession of narcotics, namely methamphetamine, and possession of utensil, the exact same charges for which he is being sentenced today.
20. In determining the weight of aggravation to be found in previous convictions Police v Fuiono [2011] WSSC 83 (26 July 2011) in which he says;

Whilst prs convictions&#160 are rnt to establish tish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencidge s be on guard agai against sentencing an accused twice for tfor the same offences on which he had previously been convicted and sentenced. This has been explained in many cases but it would be sufficient for present purposes to refer to Sentencing Guide (1994) by G G Hall where the learned author said at 1.6.12, B/191:

"Regard may be had to an offender's record when imposing sentence. This matter is not without its difficulties as the Court has to reconcile two principles; on the one hand the acceptance of the preventive purpose of punishment, and, on the other, the rejection of punishing an offender again for earlier offences: R v Ward [1976] 1 NZLR 588. In that case the Court of Appeal said that an authoritative statement of the policy which the court should adopt where it thinks it necessary to protect the public from the depredations of persistent offenders is to be found in an earlier judgment of the Court pronounced by Sir Michael Meyers CJ in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594, 597 where he said:

"The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convis . 60;. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has ay exp. We agree that the sentence passed ought to bear bear some relation to the intrinsic naturnature of the offence and gravity of the crime. But it by no means follows that the previous ctions m60; must be ignored. Itecs necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime a prr's ;previous convicns are> are involved e quhe question of his character. Further, the previous ctions&#160 of a prisone indicate cate a predilection to commit the particular type of offence of which he is cted,hich case it is t is the duty of the Court, for the protection of the public, to take them them into consideration and lengthen the period of confinement accordingly".

"The compromise adopted by the Court of Appeal is that previous convictions may be examined to establish the character of an offender and to assist in the determination of the punishment that isopriate for a person of that character for the particular offence committed: see eg R v Howv Howe [1982] 1 NZLR 618. See also R v Ottewell [1970] AC 642, 650, [1968] 3 ALL ER 153, 158 (HL). Previous coions&#160 are regarded as beingvant vant to a prediction of the offender's future behaviour, and to the determination of tkelihood of an offender responding positively to a particular form of sentence.

"Whi>"While the number and nature of pus convictions&#160 is aificant factor in r in sentencing (as it is illustrative of contempt for authority, and is relevant to an assessment of culpability), primarily regard must be had, when determining ting the appropriate sentencing level, to the intrinsic nature and gravity of the offence charged. A sentence must not be increased merely because an offender has ous convictions , 60;, with the t that he i he is thereby punished twice for the same offence: Casey (above); R v Power [1973] 2 NZLR 617 (CA); Baumer v R [1988] HCA 67; (1988) 166 CLR 51 (HCA).

"A person is not to be sentenced on his or her record. Criminal record is relevant to the extent that if the offender has no pus convictions&#160 he o is generally enti entitled to substantial mitigation as a first offender (see para 1.6.6). In relation to the length of the offender's criminal record, mitigation progressively becomes less sicant until it becomes ulti ultimately non-existent.

The learned author of Sentencing Guide (supra) then went on to say:

"The second feature identified in the extract from the judgment in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 and re-affirmed in R v Ward [1976] 1 NZLR 588 is that the commission of several offences of the same or similar type will normally result in an offender receiving a more severe sentence on the basis that the &#160 ate a predilection to n to commit a particular type of crime. Previous offences may be so nus and so persistent that a lengthy sentence of imprisonment needs to be imposed because ofse of the need to remove the offender from the community in order to protect its safety, and, where appropriate, its property: Rapana v Police (High Court, AucklP281/91,1/91, 28 November 1991, Tompkins J).

1. I am mindful that any uplift to sentence does not punish the first-named amed accuseccused twice for an offence for which he has been convicted and sentenced, but his previous convictions for possession of methamphetamine and possession of utensil do indicate a predilection to commit the particular type of offences of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

Mitigating factors

First named accused

22. The accused has expressed remorse to Probation, and it has been conveyed through Defence Counsel. I approach this with caution given his re-offending.
23. I take into account the character testimonials in his favour, particularly striking is the letter from his daughter.
24. I take into account his personal circumstances, in particular his young children, who are being victimised at school through no fault of their own. They are the unfortunate victims of this offending.

Second named accused

25. I take into account the testimonials in his favour.
26. I take into account his personal circumstances, being separated from his family, and his health concerns.

Discussion

27. Prosecution recommends a starting point of 9 years imprisonment for Scott and 8 ½ years imprisonment for Fatu.
28. Counsel for the first-named accused submits that a lengthy term of imprisonment is not appropriate and that the accused will be better served by attending rehabilitation programs like those offered by the Alcohol and Drugs Court.
29. Counsel for the second named accused submits that a community based sentence of supervision is more appropriate.
30. Previous sentencing decisions for possession of methamphetamine in Samoa can be seen below;

Police v Patau [2013] WSSC 120- 60.15 grams-starting point 5 years imprisonment;

Police v Williams [2014] WSSC153-0.2 grams-starting point of 2 years imprisonment;

Police v Scott Barlow (Unreported 13 January 2014 per Slicer J)-14.38 grams-end sentence 18 months;

Police v Webber [2016] WSSC 37-26.1 grams-starting point-8 ½ years imprisonment;

Police v Tevaga [2016] WSSC 38- 3.2 grams-starting point of 2 years.

31. It is evident from these cases is that custodial sentences are a certainty when dealing with class A narcotics, regardless of the quantity, given its penalty of life imprisonment.
32. In New Zealand where methamphetamine has become prevalent, the Crown position in the Court of Appeal case of R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72, is particularly noteworthy;

Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side effects. It induces aggressive and irrational behaviour, and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs. It has created a thriving industry, in which organised crime is heavily involved.

33. Sentiments have been expressed by my fellow judges about the undesirability of these hard drugs in Samoa. In 2014 in the case of Police v Williams, Nelson J stated;

Parliament recently increased the term to life imprisonment as an indication of its serious concern about the increasing presence of hard drugs in our community. Indeed the Courts have seen over the years how hard drugs such as ice slowly infiltrating the drug community in this country. The consumption of illegal narcotics is of course also a social problem. The Courts play a role in trying to reduce the problem by imposing deterrent sentences of imprisonment of offenders... But the courts cannot alone solve the problem. The community must also play its part. And the message that the court tries to send the community all the time is involvement in drugs can lead to ruination of good lives and to terms in prison.

34. As recent as 2016, Nelson J in Police v Tevaga stated:

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. The court must by its penalty soundly discourage such a trend. And do all 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.

35. I echo these sentiments and am in full agreement that the deterrent force is found in sentences of this Court. To that end, the sentence for the accused today will be custodial.
36. The Court of Appeal in R v Fatu set out three sets of guidelines for sentencing. The first for offending involving the supply of methamphetamine, the second for offending involving the importation of methamphetamine and the third for offending involving the manufacture of methamphetamine. For the purposes of this sentencing, I take heed of the guidelines for offending involving the importation of methamphetamine. This is a case of bringing into Samoa from American Samoa, a Class A narcotic.
37. The Court of Appeal in R v Fatu stated “We have decided that the quantity of the drug involved in the offending (rather than anticipated monetary yields) provides the most helpful measure of culpability”.
38. The guidelines are as follows;

Guidelines for ding involvivolving the importation of methamphetamine

(a)Band one – low-level importing (less than 5&;g) – two years six months’ to four years six months’ imprisoprisonment.

(b)Band two – importing commercial quantities (5 g to 250 g) – three years six months’ to ten years’ imprisonment.

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

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

As indicated, in cases where small quantities of methamphetamine have been imported for personal consumption, it is open to sentencing Judges to treat band one as noticable. We emphasmphasise that these bands are otherwise applicable to all who import methamphetamine, including those whose roles are as “mules”. Obviously the more significant the role of the offender in any importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band.

39. The approach will be to fix a starting point for each accused for the lead offence or the most serious one of possession of methamphetamine. Then deductions will be made for each accused depending on mitigating factors.

Sentence

First named accused- Scott Barlow

40. Scott has attended a program with the Alcohol and Drugs Court, which he completed in 2016. His sentence in 2014 was a term of imprisonment followed by a period of rehabilitation as directed by Probation. It is evident is that Scott has had the benefit of rehabilitation programs offered by the Court. Rehabilitation will only work is the offender is minded to change. In this sentence, the Court will not offer any more rehabilitation programs nor will Scott’s rehabilitation be an important factor in today’s sentencing. Deterrence and the protection of the public will be paramount considerations. I address rehabilitation because Probation and Mr Leung Wai have mentioned rehabilitation in their submissions.
41. Having regard therefore to the aggravating features of this offending and the sentencing bands in R v Fatu, I fix the starting point for possession of methamphetamine within Band 2 for importing a quantity between 5g and 250 g, the amount here being 5.9 grams (3years and 6 months to 10 years imprisonment). The starting point is 4 years imprisonment. I uplift this by 6 months for his previous convictions for possession of methamphetamine and possession of utensil, as an aggravating feature relating to him. This increases the starting point to 4 ½ years imprisonment. I deduct 1 month for his remorse. I deduct 5 months for his character references and his personal circumstances.
42. The accused is convicted and sentenced to 4 years imprisonment for possession of methamphetamine.
43. The accused is convicted and sentenced to 12 months imprisonment for the possession of utensil.
44. Both sentences are concurrent.
45. Any time spent in custody is to be deducted.

Second named accused-Fatu Vagana

46. Having regard to the aggravating features of this offending, and the sentencing bands in R v Fatu, I fix the starting point for possession of a methamphetamine within Band 2 for importing of a quantity between 5g and 250 g, the amount here being 5.9 grams which is 3 years and 6 months to 10 years imprisonment. The starting point is 5 years imprisonment given his level of culpability. I deduct 6 months for his good character according to the character testimonials and his personal circumstances.
47. The accused is convicted and sentenced to 4 ½ years imprisonment for possession of methamphetamine.
48. Any time spent in custody is to be deducted.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN