Police v Afamasaga [2018] WSSC 118 (28 November 2018)

SUPREME COURT OF SAMOA
Police v Afamasaga [2018] WSSC 118

Case name:	Police v Afamasaga
Citation:	[2018] WSSC 118
Decision date:	28 November 2018
Parties:	POLICE (Prosecution) AND PAULO AFAMASAGA male of Malifa (Defendant)
Hearing date(s):	-
File number(s):	S1957/12, S2018/12, S1645/12
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- Having due regard to all factors the court imposes the following sentences in respect of these charges: in relation to possession of 1.8 grams of methamphetamine you will be convicted and fined $5,000 payable forthwith in default 6 months in prison. Pursuant to section 14(3) of the Sentencing Act 2016 I will also as part of your sentence issue an order for you to come up for sentence within 12 months if called upon under section 73 of that Act. You will not be called upon for sentence if you obey the following conditions: you will pay forthwith the costs of the Police of $573.10, costs of the Probation Office $200, court costs $300, a total of $1,073.10. Failure to pay forthwith will result in your being called up for sentence and an order for your immediate imprisonment for 6 months. The second condition of the order up for sentence is that within 24 hours you are to leave Samoa and remain away for the period of the order. - In relation to the second charge of possession of 0.9 grams of marijuana you will be convicted and fined $500 payable forthwith in default 3 months in prison. As part of your sentence I will also issue an order to come up for sentence within 12 months if called upon, the condition of that order is again you leave within 24 hours and you stay away for 12 months, this period to be cumulative to the first. - On the third charge of possession of the bullet you are convicted and fined $500 again payable forthwith in default 3 months in prison. I will also issue another order to come up for sentence for 12 months as part of that penalty. And you will not be called upon for sentence provided you again leave Samoa within 24 hours and stay away for another 12 months cumulative to the above two periods.
Representation:	L Sio for prosecution L H Schuster for defendant
Catchwords:	commercial gain – dealer – ice– illegal narcotic – non-custodial – proceeds from the sale of illicit narcotics – possession of unlawful ammunition – possession of methamphetamine – possession of marijuana substances –personal use –sentencing bands
Words and phrases:
Legislation cited:	Narcotics Act 1967 Sentencing Act 2016
Cases cited:	Police v Tevaga [2016] WSSC 38 Police v Barlow [2017] WSSC 163 Police v Fialelei [2018] WSSC 102 Police v Patau [2013] WSSC 120
Summary of decision:	The summary of these penalties Paulo is as follows: for possession of the methamphetamine a fine of $5,000 possession of marijuana $500 possession of the bullet $500, that is a total fine of $6,000. You have also been ordered to pay costs of $1,073.10 arising out of these charges. To meet those penalties, I order that your funds held by the Attorney Generals Office be transferred and disbursed firstly $573.10 to the Police for their costs and the balance of $4,000 to the court to meet partial payment of your fines. That leaves a balance on your fines of $2,000 and a balance on your costs of $500 which means you have to come up with $2,500 forthwith in default of which you will serve a minimum of 12 months in prison. The second part of your penalty relates to leaving this country and adds up to this: Within 24 hours you must depart this country and stay away for three years. If you fail to do that you will be brought back before me for sentence and I am sure you understand exactly what will happen if you are brought back before me. Once your fines and costs have been paid there will be a further order that the defendants travel documents be released to him forthwith.

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PAULO AFAMASAGA male of Malifa.
Defendant

Counsel:
L Sio for prosecution
L H Schuster for defendant

Sentence: 28 November 2018

S E N T E N C E

1. Defendant pleaded guilty to three charges. Firstly, S1957/12 that at Malifa on 04 October 2012 he was knowingly in possession of an unlawful ammunition namely one .38 caliber bullet. The second is S2018/12 that at Malifa on the 04^th of October 2012 he was knowingly in possession of methamphetamine an illegal narcotic. And the third is S1645/12 that at Malifa on 04 October 2012 he was knowingly in possession of marijuana substances also an illegal narcotic under the Narcotics Act 1967.
2. The uncontested summary of facts from the police indicates that the defendant is a 47-year-old male of Malifa and Motootua married with children. On the 04^th of October 2012 at about 7:00a.m. the Police executed a search warrant on the property of the defendant at Malifa as he was suspected to have been engaged in dealing in illicit narcotics. The defendant was found to be in possession of the following items: Firstly 1.8 grams of methamphetamine more commonly known as “ice”. Secondly, 0.9 grams of loose marijuana leaves packed into a plastic bag equivalent to about two or three cigarettes. Thirdly, cash of $4573.10 which I am this morning informed is now in the possession of the Attorney Generals Office. Fourthly a savings bank book with a balance of approximately thirty odd thousand tala ($30,030.58) and fifthly the .38 caliber bullet.
3. The defendant initially pleaded not guilty to these charges and while awaiting trial somehow managed to flee the jurisdiction and return to the United States of America. I am informed by his counsel that he normally lives and resides in Anaheim, California in the United States. He only recently returned to Samoa for a family fa’alavelave resulting in the police arresting and detaining him in custody pursuant to a warrant for his non-appearance in court.
4. The defendant is Samoan born and as such is a citizen of this country but he also holds American citizenship. He has a current United States passport and presumably a current Samoan one as well. At least I assume the latter because the Samoan passport surrendered to the court expired in 2016. So he is a non-resident citizen who has committed a crime in his country of birth.
5. The police argue that notwithstanding the small quantity of drugs found in his possession that he nevertheless is a dealer in illicit narcotics. If not a dealer in methamphetamine then a dealer in marijuana. They base their argument on the fact that a substantial amount of cash was discovered on the defendants property plus the fact that his savings passbook contained some thirty thousand odd tala. There is no doubting that these are indeed substantial sums of money. The police also seem to imply that the .38 calibre bullet is associated with the defendants illegal drug activities but there is no evidence to support that suggestion.
6. In relation to the passbook monies there has been filed uncontested affidavits indicating that these represent funds collected from members of the defendants family for the purpose of tattooing of ten people of the family including the defendant. The master tattooist Taumaloto Su’a Suluape has filed an affidavit with the court confirming that in late 2012 this tattooing occurred and that $24,000 was payment for his services. The defendants sister has deposed the rest of the money from the passbook was used to fund the usual customary presentations for the tattooist and his “aufaigaluega” (assistants). Based on these uncontested affidavits I am therefore satisfied the passbook monies were for the purposes of the family tattoos. And I am satisfied there was nothing unusual or extraordinary in the defendant being in possession of such a large sum of money in his savings passbook.
7. As to the four thousand odd tala ($4,573.10) seized by the police I am not persuaded that these are necessarily proceeds from the sale of illicit narcotics or from illegal activities. There can be many reasons for the presence of such a large amount of cash in a persons house, not necessarily from the sale of illegal narcotics. Without more evidence I am not satisfied that the prosecution has established that the defendant was in fact a dealer in illicit narcotics. I must therefore assume that the small quantity of drugs found in the defendants possession was for his own personal use. This of course makes a world of difference to the sentence that the court is about to impose because drug dealers are routinely punished by imprisonment.
8. There is no question possession of methamphetamine a Class A prohibited drug under the Narcotics Act 1967 is a matter of great concern. Not only to our legislators who have raised the maximum penalties for drug offending generally and ice in particular over recent years. But it is also a concern to the courts where we have seen an increase in the number of cases coming before us involving methamphetamine. This drug seems to be the flavour of the moment for those who can afford it. A dangerous and alarming trend which has been commented on by the court in previous cases such as Police v Tevaga [2016] WSSC 38, Police v Barlow [2017] WSSC 163 and Police v Fialelei [2018] WSSC 102.
9. Because of the insidious nature of the narcotic in question and the danger it poses, the courts have quite properly taken a tough stance in relation to people coming before it involved in the use or distribution of methamphetamine for commercial gain. That continues to be the position and this case should not be interpreted as altering the situation. But there is a combination of factors that makes this particular case different and unique.
10. Firstly the quantity involved is relatively small. Secondly as observed there is no evidence before me to indicate the defendant was dealing in drugs, only that they were for his own personal use. Thirdly the defendant has spent some months in custody and has had time to enjoy the hospitality of Tafaigata Prison. Fourthly and of particular importance in this case is the fact that this defendant is a citizen resident out of jurisdiction. He does not normally live in Samoa. I am of the view that the less exposure this country including its prison population has to such people, the better.
11. I also note that in the watermark and leading case of Police v Patau [2013] WSSC 120 a decision of my brother Slicer, J where the court first applied sentencing bands for possession of methamphetamine, it was stated that in appropriate cases, absent commerciality and special aggravating circumstances, the court can sentence below the postulated bands of imprisonment. And indeed can hand down non-custodial or other kinds of sentences for drug offending. I find the present case to be one such case.
12. I take into consideration as highlighted by your counsel the fact that in this country you have a clean record. There is nothing before me to suggest that the position is different in the United States of America where you normally live. I also note your wife and most of your children plus your immediate family live and reside in California. I have read your pre-sentence report you have a good background and many people speak highly of your good character. I am also satisfied from the material placed before me that you and your family are in a position to meet any monetary penalty.
13. I further take into consideration that there is nothing before me to indicate that you received as you should have, a village penalty for your actions. After all Paulo you may be resident in the United States of America but when you are here you reside in your village of Apia and are a recognized member of that community. And your offence was committed within the confines of the village of Apia. For some reason you have been given a free pass by the village. Why I do not know. But this is a practice not to be encouraged or condoned. Perhaps the village regards possession of ice and marijuana as trivial and not worth penalising. If this is so the Alii and Faipule of Apia should seriously reconsider their position. Your counsel is a high ranking matai of Apia village, he understands exactly what I am talking about.
14. I also take into account that you have spent some two months or so in custody on remand.
15. Having due regard to all factors the court imposes the following sentences in respect of these charges: in relation to possession of 1.8 grams of methamphetamine you will be convicted and fined $5,000 payable forthwith in default 6 months in prison. Pursuant to section 14(3) of the Sentencing Act 2016 I will also as part of your sentence issue an order for you to come up for sentence within 12 months if called upon under section 73 of that Act. You will not be called upon for sentence if you obey the following conditions: you will pay forthwith the costs of the Police of $573.10, costs of the Probation Office $200, court costs $300, a total of $1,073.10. Failure to pay forthwith will result in your being called up for sentence and an order for your immediate imprisonment for 6 months. The second condition of the order up for sentence is that within 24 hours you are to leave Samoa and remain away for the period of the order.
16. In relation to the second charge of possession of 0.9 grams of marijuana you will be convicted and fined $500 payable forthwith in default 3 months in prison. As part of your sentence I will also issue an order to come up for sentence within 12 months if called upon, the condition of that order is again you leave within 24 hours and you stay away for 12 months, this period to be cumulative to the first.
17. On the third charge of possession of the bullet you are convicted and fined $500 again payable forthwith in default 3 months in prison. I will also issue another order to come up for sentence for 12 months as part of that penalty. And you will not be called upon for sentence provided you again leave Samoa within 24 hours and stay away for another 12 months cumulative to the above two periods.
18. The summary of these penalties Paulo is as follows: for possession of the methamphetamine a fine of $5,000 possession of marijuana $500 possession of the bullet $500, that is a total fine of $6,000. You have also been ordered to pay costs of $1,073.10 arising out of these charges. To meet those penalties, I order that your funds held by the Attorney Generals Office be transferred and disbursed firstly $573.10 to the Police for their costs and the balance of $4,000 to the court to meet partial payment of your fines. That leaves a balance on your fines of $2,000 and a balance on your costs of $500 which means you have to come up with $2,500 forthwith in default of which you will serve a minimum of 12 months in prison.
19. The second part of your penalty relates to leaving this country and adds up to this: Within 24 hours you must depart this country and stay away for three years. If you fail to do that you will be brought back before me for sentence and I am sure you understand exactly what will happen if you are brought back before me. Once your fines and costs have been paid there will be a further order that the defendants travel documents be released to him forthwith.
20. Finally I say this to you Paulo: you live and reside in California in the United States of America. What you do there is your business. Indulge in your habits of consuming of ice and marijuana if that is your wish. But do not come back to this country and do this because the penalty next time I assure you will be much harsher than what has been given to you today. Are we clear on the penalties Mr Schuster? (DC: very clear your honour).
    

JUSTICE NELSON