Police v Tauialo [2019] WSSC 68 (29 November 2019)

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Case name:	Police v Tauialo

Citation:	[2019] WSSC 68

Decision date:	29 November 2019

Parties:	POLICE v TAFUNA TAUIALO male of Vaitele, Apia, Savaii and Vancouver, Washington, United States of America.

Sentencing date(s):	20 November 2019

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- Possession of methamphetamine – convicted and sentenced to 3 years imprisonment less time remanded in custody; and - Importation of a prohibited good namely methamphetamine – 3 years imprisonment less time remanded in custody, to be concurrent.
Representation:	F Ioane for Prosecution I Sapolu for the Accused

Catchwords:	possession of 25.8 grams of methamphetamine; importing a prohibited import namely methamphetamine;

Words and phrases:
Legislation cited:

Cases cited:	Police v Patau [2013] WSSC 120; Police v Williams [2014] WSSC 153 (14 July 2014); Police v Webber [2016] WSSC 37 (18 March 2016); Police v Barlow [2017] WSSC 163; Police v Oloaga [2018] WSSC 98 (30 July 2018); R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72; Zhang v R [2019] NZCA 507 (21 October 2019).

Summary of decision:

TAFUA TAUIALO male of Vaitele, Apia, Savaii and Vancouver, Washington, United States of America.

[1] Tafuna Tauialo, you appear for sentence on one charge of possession of 25.8 grams of methamphetamine (S773/18) and one charge of importing a prohibited import (S839/18), namely, the methamphetamine following a defended hearing.

[2] Before I proceed to deal with your sentencing, there is an important issue that has been raised by Prosecution in their sentencing submissions that I must address first. The New Zealand Court of Appeal decision in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 has been consistently applied in this jurisdiction for the manufacture, importation and supply of methamphetamine (Police v Patau [2013] WSSC 120; Police v Williams [2014] WSSC 153 (14 July 2014); Police v Webber [2016] WSSC 37 (18 March 2016); Police v Barlow [2017] WSSC 163; Police v Oloaga [2018] WSSC 98 (30 July 2018) and others). In their submissions, Prosecution has referred me to the most recent New Zealand Court of Appeal methamphetamine sentencing decision in Zhang v R [2019] NZCA 507 (21 October 2019). That sentencing decision significantly modifies the Fatu sentencing bands (Zhang, supra at para. 10(c)) and approach.

[3] In Zhang (supra), the New Zealand Court of Appeal has increased the number of sentencing bands from four (4) to five (5) and reduced the penalty terms in the respective bands. In increasing the bands from four (4) to five (5) bands, the Court of Appeal noted at paragraph 121:

“[121] Secondly, we consider the Fatu bands require adjustment. Band four, which is required to cover quantities ranging between 500 grams and (in practice) more than 500 kilograms, is simply too broad. It requires subdivision. The first adjustment we therefore make is to subdivide it and to create a new band five, for quantities in excess of two kilograms. We select that number having regard to the data point distribution shown in the graphs discussed at [95]–[100] above.”

[4] In the table below, I draw from paragraph 36 of Fatu (supra) as this case involves importation and the new guideline bands set in Zhang:

	Former: *Fatu* (Importation)	New: Zhang
Band one: < 5 grams.	2.5 to 4.5 years	Community to 4 years imprisonment
Band two: < 250 grams.	3 to 11 years.	2 to 9 years.
Band three: < 500 grams.	8 to 15 years.	6 to 12 years.
Band four: < 2 kilograms	10 years to life.	8 to 16 years.
Band five: > 2 kilograms	10 years to life.	10 years to life.

[5] In their judgment in Zhang, the Court of Appeal removed the distinction between supply, importation and manufacture and focuses on the role played by the offender as an important consideration (see para. 10(d) and 118). The sentencing bands in Zhang were premised on findings set out by the Court of Appeal in summary at para. 18 of their judgment. Criticisms of Fatu raised by Appellants were also set out at para. 21 to 32 which included a mechanistic approach to sentencing.

[6] The significant modification of Fatu (supra) in Zhang follows the hearing of extensive evidence and submissions in the New Zealand Court of Appeal. That evidence and submissions extensively canvassed methamphetamine offending in New Zealand, statistics, the effectiveness of deterrent sentencing and the availability of rehabilitation and other factors. In my view, it is premature to depart from the Fatu approach that we have consistently applied in Samoa over a number of decisions until full argument is heard justifying a departure from Fatu and applying Zhang in this jurisdiction. That has not occurred in this case.

[7] In saying this and approaching this question with some caution, I am also mindful (at least from the Court’s experience) that Samoa has so far it seems managed to avoid the methamphetamine epidemic that has afflicted Australia and New Zealand for example, and if media reports are correct, Fiji and Tonga. Long may that be, but if anecdotal media reports from Fiji and Tonga are correct, we may not be immune from such an epidemic simply because of our small size or geographic location. It is therefore important that if our sentencing approach is to change, the Court is apprised of all the relevant facts before determining the most appropriate sentencing approach to adopt.

[8] In applying the Fatu bands in this case, the point however is well made in Zhang that sentencing is an evaluative exercise not to be applied in mechanistic way and requiring the “full evaluation of the circumstances to achieve justice in the individual case” (citing from Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607). In terms of taking into account personal circumstances as a mitigating factor personal to an offender, the Court in Zhang also relevantly noted at para. 136:

“[136] It follows that we consider that personal mitigating circumstances relating to the offender, at stage two of the sentencing exercise, are applicable to all instances of Class A drug offending, as in any other offending.”

[9] Your offending Mr Tauialo is set out in detail in my judgment dated 14 October 2019. In summary, on the 23rd April 2018, you together with your son Jarrell arrived at Faleolo International Airport on Fiji Airways flight FJ 255 from Nadi Fiji. You had travelled to Nadi Fiji from Los Angeles. In your possession was 25.8 grams of methamphetamine wrapped in plastic and found in the pocket of a jacket in your bag.

[10] You are a 45 year old male of Foailuga Savaii and United States of America. According to your Pre-Sentence Report, you were born in American Samoa and then raised in Foailuga Savaii. You are an only child. You relocated to American Samoa and completed school to year 11. You then later moved to Seattle, USA and after a year in Seattle, moved to Alaska, USA. You have worked there on a fishing vessel for 22 years.

[11] You are married with four (4) children. Three from your first wife and one from your current wife. Your family in the USA primarily relies on your income for financial support. Your wife provided a family testimonial that you are a loving, hardworking and incredible family man who ensures that your immediate family is well looked after but also a person who also provides support to your family in Savaii. Your wife says that this matter before the Court has had quite an adverse impact on them. You have positive testimonials in support of you from your church Minister, family matai and mother.

[12] Prosecution submits that the aggravating features of your offending are (a) the effect of the dissemination of drugs in the community; (b) the quantity of methamphetamine in your possession, that you are a supplier of the drug; (c) that you are a consumer and distributor of methamphetamine; (d) that you imported the methamphetamine; (e) you attempted to conceal the drug; (f) you smuggled the drug in a large quantity; and (g) the danger of the drug to the border protection of Samoa.

[13] In Fatu (supra), the bands to which both counsel refer to in their submissions to this Court, the guideline bands adopted by the New Zealand Court of Appeal in relation to the importation of methamphetamine referred to the commercial quantity of methamphetamine and not commercial purpose. I am satisfied that in terms of Fatu, you had in your possession of 25.8 grams of methamphetamine, which was a commercial quantity at the lower end of band two. I am not however satisfied that it was for a commercial purpose (see also: paragraph 21, Police v Patau [2013] WSSC 120).

[14] I accept that for the purposes of sentencing, importation is a relevant factor to place your sentencing in the importation band for sentencing purposes as is the weight of the methamphetamines. In Fatu, the Court of Appeal stated at para. 22 in terms of culpability in methamphetamine offending in terms of manufacture, importation and supply:

“[22] All other things being equal, a manufacturer is more culpable than an importer and an importer is more culpable than a supplier. A drug manufacturer (or importer for that matter) is responsible for bringing the drugs in question into circulation in New Zealand and will usually be more culpable than a dealer in drugs. This is consistent with the approach taken in R v Aramah (1982) 4 Cr App R (S) 407. Another way of looking at it is that a drug manufacturer or importer can be regarded, at least normally, as being at the top of the supply chain. This was the approach taken in Cabassi v R [2000] WASCA 305 at para [10].”

[15] I accept that you concealed the methamphetamine, you attempted to smuggle it into Samoa and for the purposes of sentencing, you are a primary offender.

[16] You are a first offender so there is no personal factors aggravating to you.

[17] This matter proceeded to a defended hearing so you do not get any credit for a guilty plea. In your Pre-Sentence Report, you also continue to deny the offending and accordingly, a discount for remorse is not available to you.

[18] I do however accept your prior good character. This is reflected in the character references submitted by you and which speak of your prior good character.

[19] I also accept that it is appropriate to take into account your personal circumstances as a mitigating feature. Your wife and young child are in the United States of America. You are separated from them by great distance and no doubt, from prison in Samoa, have very limited opportunity to communicate with them.

[20] It has been recognized that illicit narcotics is a scourge in many societies and Samoa is becoming no exception (Police v Tevaga [2016] WSSC 38 (21 March 2016); Police v Kamisi (Unreported) WSSC 11 May 2018). As Nelson J also stated in Tevaga (supra), “...it is of concern to the court that the harder type of narcotics seem to be taking root in our community.” In her letter to the Court, the Comptroller of Customs refers to the dangers of this type of drug and says:

“Given the dangerous effects of these substances pose to our community, as well as our collective endeavours as a country to prevent the influx of these substances, I implore the Court’s indulgence in passing a sentence to send a clear message to possible like defendants that cases such as these are not to be taken lightly.”

[21] In sentencing you, I accept that deterrence is a key primary consideration. This is to act as a deterrent not only to you but also others who might think of importing Class A narcotics into Samoa that it will be dealt with severely by the Courts. It is important in my view that the wrong message is not sent out lest the scourge of these types of drugs which has taken a hold in Australia, New Zealand, possibly Fiji and in other countries takes hold in Samoa. This approach also reflects the reality that in smaller countries such as Samoa, we are less able than better resourced health systems such as New Zealand and Australia to deal with a methamphetamine epidemic. Deterrence at present plays an important role in stopping this and other Class A narcotics from taking permanent root in our community.

[22] I also however bear in mind that sentencing is an evaluative exercise and that I must carry out a full evaluation of the circumstances to achieve justice in each individual case. In this case, deterrence is a primary consideration but that must also be balanced by the other factors relevant to your case.

[23] This matters falls within the lower end of band 2 of the Fatu which is 5 grams to 250grams of methamphetamine. Ms Sapolu submits a start point of 3 to 4 years imprisonment. Prosecution submits a 4 year start point for sentence. In other sentencing decisions in Samoa for methamphetamine, the following sentences were handed down:

Authority	Quantity	Sentence
Police v Patau [2013] WSSC 20	60.15grams (importation)	5 year imp. start point.
Police v Williams [2014] WSSC 153	0.2 grams (possession)	2 year imp. start point.
Police v Barlow (Unreported) 13 January 2014.	14.38 grams	End sentence: 18 months imp.
Police v Webber [2016] WSSC 37	26.1 grams (possession and supply)	8 ½ years imp. start point.
Police v Tevaga [2016] WSSC 38	3.2 grams (possession and supply)	2 year imp. start point.
Police v Barlow [2017] WSSC 163	5.9 grams (importation)	4 years imp start point.
Police v Kamisi [2018] WSSC 73 (11 May 2018)	0.8 grams	2 year imp. start point on totality basis with other charges of marijuana and utensil possession.
Police v Oloaga [2018] WSSC 98	6.4 grams (importation)	3½ years imp. start point.
Police v Fialelei [2018] WSSC 102 (7 September 2018)(did not apply R v Fatu)	0.4 grams (possession)	34 weeks start point. Totality approach together with possession of utensil.
Police v Afamasaga [2018] WSSC 118	1.8 grams (possession, personal use)	Convicted and fined $5,000 in default 6 months in prison. Relevant consideration was two months in custody on remand.

[24] I accept four (4) years imprisonment start point as appropriate. I deduct 6 months for your prior good character. For your personal circumstances, a deduction of between 3 to 6 months may be warranted. I have decided to extend a full 6 months deduction for your personal circumstances for your wife and child reside overseas and your imprisonment in Samoa will be felt more acutely then if your family was in Samoa. You also have no other deductions available to you.

[25] In extending a deduction for your personal circumstances on this account, I do so with caution because in future cases involving the importation of Class A narcotics, significant discounts on this basis may encourage people not resident in Samoa to run the risk of importing these narcotics in Samoa because of a deduction on this basis. It would then undermine the deterrent effect of sentencing. I am however satisfied that in the full evaluation of the circumstances of your case balanced with the need to maintain deterrence, the deduction is available and balances the various considerations I am required to take account of to achieve justice.

[26] The sentence will be an imprisonment term. This is not a case in which a community based sentence is appropriate as was the case in Police v Afamasaga (supra).

[27] Before I formally pass sentence, I wish to make note of one final matter in which I touched on in my judgment. The Courts have an important role to play in deterring this type of offending, as I have set out.

[28] It should however also be made widely known to anyone thinking of importing illegal drugs into Samoa that deployed at Samoa’s airports and sea ports of entry are drug sniffer dogs. These dogs, as demonstrated in this case, are a very effective tool in detecting drugs at our various ports of entry. The effectiveness of these sniffer dogs at Samoa’s ports of entry is increasingly being seen in the number of drug cases coming before the Courts after detection by the highly capable Police and Customs dogs. It would be a mistake for people to think that Samoa does not have the capability at its border to detect illegal narcotics and these dogs themselves should give anyone thinking to import these drugs into Samoa to think again about it and the consequences that would follow if they do proceed to do so. Others have made that mistake.

[29] Now I turn to your sentence. Mr Tauialo, on the charges for which I found proven beyond a reasonable doubt, you are accordingly convicted and sentenced as follows:

Supreme Court of Samoa

Police v Tauialo [2019] WSSC 68 (29 November 2019)