Police v Oloaga [2018] WSSC 98 (30 July 2018)

SUPREME COURT OF SAMOA
Police v Oloaga [2018] WSSC 98

Case name:	Police v Oloaga
Citation:	[2018] WSSC 98
Decision date:	30 July 2018
Parties:	POLICE (Prosecution) AND TAPU OLOAGA @ JAY OLOAGA male of Laulii and Tafuna American Samoa. (Defendant)
Hearing date(s):	-
File number(s):	S1841/47, S1842/17
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 are convicted and sentenced to 2 years and 3 months in prison. Remand in custody time to be deducted. - Concerning the charge of possession of a utensil namely an electronic weighing scale for the purposes of offending against the Narcotics Act. The maximum penalty for that is 7 years in prison. Following a similar process to the above, you are convicted on that charge and sentenced to 1-year in prison, concurrent term. - The nett effect is that you will serve for these charges 2 years and 3 months in prison less remand in custody time.
Representation:	R Titi for prosecution I Sapolu for defendant
Catchwords:	Possession of an electronic weighing scale – utensil used for the purpose of committing an offence – methamphetamine – Class A narcotic – custodial sentence – 4-band approach – importation of methamphetamine – consumer – distributor – commercial gain – non-custodial penalty – community detention and treatment programme – attempted to conceal and disperse – applicable principles – hold the defendant accountable – destructive drug
Words and phrases:
Legislation cited:	Narcotics Act 1967
Cases cited:	R v Fatu CA 415/04 [2005] NZCA 278; [2006] 2 NZLR 72 Police v Patau [2013] WSSC 120 Police v Williams [2014] WSSC 153
	Police v Tevaga [2016] WSSC 38 Police v Barlow [2017] WSSC 163
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAPU OLOAGA @ JAY OLOAGA male of Laulii and Tafuna American Samoa.
Defendant

Counsel:
R Titi for prosecution
I Sapolu for defendant

Sentence: 30 July 2018

S E N T E N C E

The charges

1. Defendant has pleaded guilty to two charges: S1842/17 that at Fagalii International Airport on 02 November 2017 he was in possession of an electronic weighing scale being a utensil used for the purpose of committing an offence against the Narcotics Act 1967. Pursuant to s.13(b) of that Act, the maximum penalty for such offending is 7 years imprisonment or a fine not exceeding $2,000 or both.
2. Defendant also pleaded guilty to S1841/17 that same date and same place he knowingly was in possession of 7.9 grams of methamphetamine a Class A narcotic commonly known as ice. By virtue of s.18 of the Narcotics Act the maximum penalty for possession of a Class A narcotic is life imprisonment. There is no doubting the seriousness of these offences, in particular the latter.
3. When the prosecution summary of facts was presented to the defendant, he indicated through his counsel that he disputed the quantity of the methamphetamine in question. A disputed summary of facts hearing accordingly had to be held culminating in counsels and the defendant attending to reweighing the substances held by the Police. And agreeing on a reassessed weight of 6.4 grams.
4. The substances in question must of course have been of greater weight as this weight represents the weight of that which was retained in the custody of the Police after relevant samples had been extracted and sent to the SROS Lab at Nafanua for analysis. The exact weight matters little to the final outcome of these proceedings because the relevant case law talks of quantities exceeding 5 grams.

Facts

5. The undisputed facts in accordance with the prosecution summary of facts is that on the 02^nd of November 2017 at about 5:00 pm the defendant arrived on a Polynesian Airlines flight at the Fagalii Airport. The flight came from neighbouring American Samoa. Upon arrival the defendant made his way to the Fagalii Terminal for normal immigration and customs checks. While the customs officer and a police officer were checking the defendants belongings he produced an electronic weighing scale from his pocket.
6. The electronic weighing scale was believed to be a weighing scale for weighing banned substances and the defendant was then taken to one of the rooms of the airport to conduct a full body search as he was suspected of carrying banned substances. While the defendant was walking to the room he had a small plastic bag containing the methamphetamine inside the right pocket of his pants. The summary says he quickly put his right hand inside his pocket and tore the bottom of the plastic bag causing the contents to become scattered inside his pocket.
7. When the police conducted a full body search upon him they found one small clear plastic bag containing methamphetamine weighing 2.1 grams, and one medium clear plastic bag containing methamphetamine weighing 5.8 grams. The total amount of methamphetamine from both plastic bags as recorded in the summary is 7.9 grams but as stated previously that has now been reduced by consent to 6.4 grams.
8. Photos of the search conducted at Fagalii Airport were produced at the summary of facts hearing and these supplement the police summary. The photos show the torn plastic bag and the contents of the defendants pants pocket and demonstrate a clear attempt by the defendant to conceal the methamphetamine. It also appears from the photos the scattered methamphetamine found in the defendants pants pocket were not part of the two plastic bags weighed by the police. I am not clear why this is so but as stated earlier, the crucial factor is that the quantity found on the defendant exceeded 5 grams.

Submissions

9. The prosecution submits the court ought to follow its normal sentencing policy in respect of those who deal in, sell or privately use methamphetamine and impose a custodial sentence. They rely on the sentencing bands approach established by R v Fatu CA 415/04 [2005] NZCA 278; [2006] 2 NZLR 72 a New Zealand Court of Appeal authority applied by the Samoan Courts previously in cases such as Police v Patau [2013] WSSC 120, Police v Williams [2014] WSSC 153, Police v Tevaga [2016] WSSC 38 and most recently Police v Barlow [2017] WSSC 163.
10. Fatu established a 4-band approach based on weight for cases of sale and supply of methamphetamine as well as 4-bands for cases of importation. The bands for importation are:

“(a) Band one – low level importing (less than five grams) – two years six months to four years six months imprisonment.

(b) Band two – importing commercial quantities (five grams to 250 grams) – three years six months to ten years imprisonment.

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

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

11. The prosecution argue this is a case of importation of methamphetamine. Notwithstanding the fact that they charged the defendant with possession. And that given the quantity exceeds 5 grams, it falls within the B-2 range of 3½ to 10 years imprisonment. Their submission hinges on the fact that the defendant is not only a consumer but also a distributor of methamphetamine for commercial gain. They point to the quantity of the meth involved plus the fact that he was carrying an electronic weighing scale which according to the SROS report contained traces of methamphetamine. Indicating that the scale was not used to weigh other substances.
12. On the other hand defendants counsel has argued strongly in favour of a non-custodial penalty. She says the meth was for personal use only and cites various New Zealand authorities where penalties of home detention were imposed. Given that Samoa has no system of home detention, she has put forward Community Service possibly community detention and treatment programs as alternatives open to the court. She has submitted evidence that the defendant has begun undergoing treatment for his addiction although it is to be noted this only commenced earlier this month. The month of his sentencing. Counsel advocates this despite an unfavourable report by the Alcohol and Drug Court Clinician who assessed the defendant and reported that the defendant fails to meet the criteria for a treatment programme under the Drug and Alcohol Court.
13. I agree with the prosecution. This is a case of a defendant attempting to smuggle into Samoa not an insignificant quantity of a dangerous and addictive narcotic. The fact of him having in his possession an electronic weighing scale carrying traces of methamphetamine makes it highly unlikely the narcotics were for personal use only. I am also satisfied the defendant imported the narcotics albeit he was charged with possession. He landed from an international flight at an international airport with the drugs on his person and when discovered he attempted to conceal and disperse some of them. As such he falls within the scope of B-2 of Fatu an authority that has been consistently applied on more than one occasion in this jurisdiction. I further accept the prosecution suggestion that the appropriate start point for sentencing is at the lower end of B-2, namely 3½ years imprisonment.

Discussion

14. The applicable principles and purposes of sentencing under the Sentencing Act 2016 have been referred to by both counsels in their submissions. They do not require restatement. In this case the primary principles are firstly to hold the defendant accountable for his conduct, secondly to denounce his behaviour and thirdly and most significantly to deter him and others from committing this kind of offence. These override considerations of rehabilitation although I would strongly urge the defendant to continue with measures to address his drug addiction, for the sake of his family if not for himself because he is not going to prison forever.
15. In R v Fatu the court noted in a passage approved by my sister Tuala-Warren, J in Police v Barlow:

“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 at all levels. The manufacturing process is particularly dangerous ......... If it is appropriate to draw any distinction between Class A drugs, methamphetamine can fairly lay claim to a place in the most serious category.”

Recently in Police v Tevaga a case of possession of a smaller quantity of methamphetamine than that involved in this case I observed the following:

“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.”

Further on in the judgment I said:

“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 flavor 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.

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.”

Sentence

16. For possession of the methamphetamine, the start point for sentence is 3½ years in prison. However mitigating factors in your favour need to be allowed for. Firstly, for your first offender status, your clean record and good background of service to your family and community. Plus your good character as attested to by references attached to your pre-sentence report. To reflect all this I make a deduction of 6 months, leaves a balance of 3 years.
17. The pre-sentence report confirms payment in full of your village fine, a further 6 months deduction for that, leaves a balance of 2½ years.
18. The final deduction is for your guilty plea. Although the effect of this was largely watered down by your challenge of an essential part of the summary of facts which required the court to undertake a disputed summary of facts hearing. I therefore can only allow a reduced credit of 3 months, leaves a balance of 2 years and 3 months.
19. No other deductions need to be made in respect of your sentence. On the charge of possession of methamphetamine, you are convicted and sentenced to 2 years and 3 months in prison. Remand in custody time to be deducted.
20. Concerning the charge of possession of a utensil namely an electronic weighing scale for the purposes of offending against the Narcotics Act. The maximum penalty for that is 7 years in prison. Following a similar process to the above, you are convicted on that charge and sentenced to 1-year in prison, concurrent term.
21. The nett effect is that you will serve for these charges 2 years and 3 months in prison less remand in custody time.
    

__________________
JUSTICE NELSON