Police v Kamisi [2018] WSSC 73 (11 May 2018)

IN THE SUPREME COURT OF SAMOA
Police v Kamisi [2018] WSSC 73

Case name:	Police v Kamisi
Citation:	[2018] WSSC 73
Decision date:	11 May 2018
Parties:	POLICE (Informant) and TEREMOANA DAN TUMAMA KAMISI, male of Siusega, Aleisa, Vaitele-uta, Faleula and Tafua Savaii (Defendant)
Hearing date(s):
File number(s):	S1270/17, S1271/17, S1272/17 & S1269/17
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- Convicted and sentenced as follows: - Possession of methamphetamine (S1270/17) – convicted and sentenced to 1 year and 8 months imprisonment less time remanded in custody, concurrent to the other charges; - Possession of seeds (S1271/17) – convicted and sentenced to 6 months imprisonment, to be served concurrently; - Possession of utensils, convicted and sentenced to 3 months imprisonment, to be served concurrently; and - Possession one branch cannabis (S1272/17) – convicted and sentenced to 1 month imprisonment, to be served concurrently. - Sentences are to be served concurrently, this means that your imprisonment term is 1 year and 8 months imprisonment, less any time remanded in custody.
Representation:	F Ioane for Prosecution A Lesa for the Accused
Catchwords:	Possession of methamphetamine, marijuana branch and the seeds.
Words and phrases:	The possession of methamphetamines or ice as it is more commonly known is also becoming increasingly common in Samoa.
Legislation cited:
Cases cited:	(Police v Tevaga [2016] WSSC 38 (21 March 2016) per His Honour Nelson J), Police v Barlow [2017] WSSC 163 (28 November 2017), Her Honour Tuala-Warren J and R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

TEREMOANA DAN TUMAMA KAMISI, male of Siusega, Aleisa, Vaitele-uta, Faleula and Tafua Savaii.
Defendant

Counsel:
F Ioane for Prosecution
A Lesa for the Accused

Sentence: 11 May 2018

SENTENCE

1. Teremoana, you appear for sentence on one charge of possession of 0.8 grams of methamphetamines which carries a maximum penalty of up to life imprisonment. You also appear for sentence for possession of 1 branch of marijuana weighing 1.0 grams (maximum penalty 14 years imprisonment), possession of 44 seeds of marijuana (maximum penalty 14 years imprisonment) and possession of utensils (maximum penalty 7 years imprisonment).

The Offending:

2. According to the Summary of Facts accepted by you, at 9.30om on Saturday 25 August 2017, Police conducted a search of your house under a search warrant. A search was conducted of the house and you voluntarily handed over the utensil to Police. Police then carried out a body search and Police found a small medicine bottle containing 7 small plastic bags of methamphetamine weighing 0.8 grams. The Police then entered the house and found:
   • (a) A white plastic bag that contained one marijuana branch weighing 1.0 gram;
   • (b) Three straws of different colors;
   • (c) One glass pipe utensil;
   • (d) Forty four (44) marijuana seeds; and
   • (e) Five small plastic bags and two medium plastic bags for the purposes of using for the methamphetamines.

The Accused:

3. You are a 44 year old male of Aleisa. According to your Supplementary PSR, you are married to your second wife. Your ex-wife has re-located to New Zealand with your children and you have no children to your second wife. You both however care for your two nephews aged 15 and 17. Your wife seeks leniency from the Court and she says that she has seen your remorse for your offending first hand.
4. You told the Probation Service when assessed for the ADC program in April and your counsel that you have no prior convictions. You also told me on the 11^th April when your matter was called for sentencing indication that you had no prior convictions. When your prior conviction record was however read to you, you confirmed your prior conviction record, smiled and treated the exchange in terms of your prior conviction record lightly. You have a prior conviction for assault causing injury and being armed with a dangerous weapon for which a non-custodial sentence was imposed

Aggravating factors:

5. The aggravating factors relating to your offending is the quantity of narcotics in your possession consisting of methamphetamine, marijuana branch and the seeds in your possession taken as a whole.
6. Prosecution submits that you are dealer or seller of narcotics. On the material before me, I am not satisfied that you are a dealer or seller of the narcotics. I am however satisfied that you are a consumer of drugs.
7. While you have previous convictions from 2015, they are of a different nature. Prosecution submits that your previous convictions show you are not a person of good character and you do not have remorse. These are matters to address in mitigation.

Mitigating Factors

8. The mitigation features personal to you is your early guilty plea. While to the Probation Service and through your wife, you are said to be remorseful, I find this difficult to accept given that you were not honest with the Court when dealing with your prior conviction record and took that exchange lightly.

Discussion:

9. Illicit narcotics is a scourge in many societies and Samoa is becoming no exception (Police v Tevaga [2016] WSSC 38 (21 March 2016) per His Honour Nelson J). The possession of methamphetamines or ice as it is more commonly known is also becoming increasingly common in Samoa. This narcotic has wreaked havoc in many overseas communities. In Police v Barlow [2017] WSSC 163 (28 November 2017), Her Honour Tuala-Warren J cited from the R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 in terms of methamphetamines as follows:

“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.”

10. A deterrent sentence is the only sentence that is appropriate. In terms of your possession of methamphetamine, this is to mark the seriousness of your offending, to deter not only you from future involvement with illegal narcotics but also to send a clear message to others that if you involve yourself with methamphetamine, you will most likely be imprisoned. As His Honour Nelson J stated in Police v Tevaga (supra) and which remains the case:

“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.”

11. You told the Probation Service that you were shocked when the raid took place at your home at 9.30pm on Saturday 25 August 2017. For others using, dealing or otherwise in possession of this particularly destructive and addictive drug, a similar fate will most likely await them if they continue to use, deal or otherwise possess methamphetamine.
12. I adopt totality in sentencing principles and the charge of possession of methamphetamine as the lead charge. Prosecution seeks a start point of 2 years. Your counsel accepts this start point as appropriate.
13. I have considered the various authorities cited to me. There is no evidence that you possessed these drugs for a commercial purpose. Bearing in mind the authorities referred to me including Police v Tevaga (supra), I agree that a start point of 2 years imprisonment is appropriate. Prosecution seeks an uplift of your sentence for your prior convictions. Those convictions are for offending of a different nature so I will not uplift your sentence but you will receive no discount for prior good character. Given however that you misled the Court, your counsel and the Probation Service in relation to your prior convictions and this involved dishonesty over a period of time and to different persons, I do not accept that you are genuinely remorseful for your offending. There will be no discount for remorse. The only deduction then is for your guilty plea so from 2 years imprisonment, I deduct 4 months for your guilty plea leaving an end sentence of 1 year 8 months imprisonment less time remanded in custody.

Result:

14. You are accordingly convicted and sentenced as follows:

(a) Possession of methamphetamine (S1270/17) – convicted and sentenced to 1 year and 8 months imprisonment less time remanded in custody, concurrent to the other charges;
(b) Possession of seeds (S1271/17) – convicted and sentenced to 6 months imprisonment, to be served concurrently;
(c) Possession of utensils, convicted and sentenced to 3 months imprisonment, to be served concurrently; and
(d) Possession one branch cannabis (S1272/17) – convicted and sentenced to 1 month imprisonment, to be served concurrently.

15. As your sentences are to be served concurrently, this means that your imprisonment term is 1 year and 8 months imprisonment, less any time remanded in custody.
    

JUSTICE CLARKE