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Police v Westburg [2020] WSSC 39 (17 July 2020)

SUPREME COURT OF SAMOA
Police v Westburg [2020] WSSC 39


Case name:
Police v Westburg


Citation:


Decision date:
17 July 2020


Parties:
POLICE v WESTBURG female of Cumberland, Maine and Manono-uta.


Sentencing date(s):
17 July 2020


File number(s):



Jurisdiction:
Criminal


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE


On appeal from:


Order:
- You are accordingly convicted and sentenced as follows:
- On the charge of importation of prohibited imports bearing in mind the imprisonment and maximum fine, convicted and fined $1,000.00 to be paid within 14 days, in default, 2 months imprisonment; and
- On the charges of possession, you will be convicted and discharged. I have incorporated into the importation charge possession on a totality basis given the impact of these convictions on your immigration status.
- Your travel documents surrendered to the Court are to be retained until you have paid your fine in full.
Representation:
Q Sauaga for Prosecution
T Atoa for the Accused


Catchwords:
aggravating factors – importation of marijuana – possession of narcotics


Words and phrases:
failure to declare your possession of the marijuana; marijuana was for a medical purpose.
Legislation cited:


Cases cited:
Attorney General v Sefo [2018] WSCA 16;
Gregory Williams v Brown [2012] NZCA 197);
Manoj Vohra v New Zealand Police (Unreported) [2018] NZHC 3192 Dunnigham J;
Police v John Hardin (Unreported) Supreme Court Judgment of former Chief Justice Sapolu (16 January 2018);
Police v William Rockliffe [2018] WSSC 122 (25 October 2018)
Zhang v Ministry of Economic Development HC Auckland CRI 2010-404-453, 17 March 2011, Asher J;


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN


P O L I C E
Prosecution


A N D


STEPHANIE WESTBURG female of Cumberland, Maine and Manono-uta.
Accused


Counsel: Q Sauaga for Prosecution

T Atoa for the Accused


Decision: 17 July 2020


ORAL SENTENCE

  1. Ms Westburg, you appear for sentence on the following charges:

The Offending:

  1. According to the Summary of Facts accepted by you through your counsel, on the 11th of April 2019 at around 2pm, you arrived in Samoa on Air New Zealand from Auckland. When you arrived at the Airport terminal, the Customs K9 drug sniffer dog showed interest in you.
  2. You were escorted by Customs to a search bench for a full search of your belongings. Before the search was carried out, you were asked by the Customs Officer if you were carrying any illegal drugs to which you responded that you were in possession of marijuana that belonged to you. You informed the Customs Officer that you were not aware that marijuana was illegal in Samoa. You had completed your Customs Declaration Form declaring that you had nothing to declare.
  3. In your possession were two glass spray bottles with marijuana flower heads weighing 18.2 grams.

The Accused:

  1. You are a 49-year-old female of California USA and Mulifanua. You are the General Manager of the Le Vasa Resort. You grew up in New Jersey USA and are the eldest of two children. You lived in various places in the USA, completed school and attended University obtaining a degree in Hospitality, Hotel and Restaurant Management.
  2. You have worked various jobs in the USA starting with your family’s coffee shop business expanding that to four locations and then going on to a successful hospitality career.
  3. You suffer from chronic pain and migraines. You are said to have earlier been on prescribed opioid pain killers which are highly addictive. As a result of concerns around the opioid based pain killers, you changed to and were prescribed medicinal marijuana to manage your pain. This prescription was obtained in Maine, USA where medicinal marijuana is legal. You also have positive character references from your mother, your long term friend Laura Landis, Peresia Taueva, the Reservations Manager for the Le Vasa Resort, former employer Thomas Murphy as well as from Soraya May, the Le Vasa Resort director.
  4. In her letter, the Director of Operations for the Le Vasa Resort says that a criminal conviction especially of a narcotics nature, will affect your immigration status. It would also create great hardship and affect your ability to continue in your role at the Resort.
  5. I was also being provided a letter to the Registrar of the Court from the Assistant Chief Executive Officer, Ministry of Prime Minister and Cabinet (Immigration Division) drawing my attention to various provisions of the Immigration Act 2004.

Aggravating factors:

  1. The aggravating factors relating to your offending is the quantity of marijuana in your possession. I also consider your failure to declare your possession of the marijuana as a serious aggravating factor to your offending.
  2. There are no aggravating features personal to you as an offender. You are a first offender.

Mitigating Factors

  1. In mitigation of your offending, I accept that when questioned by Customs, you acknowledged that you were in possession of the marijuana. You stated that you did not know it was illegal in Samoa. I accept that the marijuana was for medicinal purposes.
  2. The mitigating features personal to you are as follows:
  3. While you have said that you did not know that the importation of the medicinal marijuana was illegal, I do not extend to you as a mitigating factor ignorance of the law as can be extended in some circumstances (see: Attorney General v Sefo [2018] WSCA 16 at para. 18). The Government of Samoa Passenger Declaration Form at “[3]” asks whether you are bringing into Samoa “Goods that may be prohibited or subject to restrictions such as illicit drugs, medicines, steroid...” (emphasis added). You answered “No” to that question. The medicinal marijuana is clearly a prescribed medicine and your being issued with an “MMMP Certification” as shown in your documents show the restricted nature of that medicine in Maine, USA. Medicinal marijuana is not it appears a freely available medication in Maine USA but is subject to regulatory control by health authorities. The Customs declaration should have alerted you to the need to declare the medicinal marijuana, as it is a controlled medicine in the United States and one for which you required a prescription and an MMP Certification to present to authorities if required in Maine, yet you did not declare it on your arrival.

Application for Discharge Without Conviction:

  1. You have applied for a discharge without conviction through counsel. In order to determine your application for discharge without conviction, I must assess (a) the gravity of your offending; (b) the direct and indirect consequences of a conviction on you; and (c) whether the consequences of a conviction are out of all proportion to the gravity of your offending.
  2. The consequences of a conviction on you that underpin your application for a discharge without conviction are the effects of a conviction on your employment in Samoa, ability to travel and work in other locations such as in Asia, New Zealand or Australia and that a conviction may impact on your employment and immigration status in Samoa. After the hearing of your application for a discharge without conviction, through counsel, a copy of a letter dated 29 November 2019 from the Ministry of Prime Minister and Cabinet addressed to the Registrar of the Supreme Court notified in summary that a conviction would essentially render you liable to deportation. I heard further from both counsel on this issue on 20th March.
  3. The importation of illicit drugs into Samoa is a serious offence. This is reflected in the penalties prescribed by the law for this offending Whilst it is a serious offence, in your favor is that it was ‘medicinal marijuana’ that you had in your possession prescribed to you by a qualified doctor in the USA for your pain. When questioned by Customs Officers at the search bench, you also admitted to the possession and ownership of the marijuana after the K9 sniffer dog had shown interest in you.
  4. A significant aggravating feature of your offending in my view is that you did not declare the marijuana. The declaration form completed by all incoming passengers and persons into Samoa, the completeness of those answers and that they are answered truthfully allows authorities to protect Samoa from drugs, quarantine risks and other material and items not permitted into this country. This is because once illicit drugs and other illegal items enter the country, Samoa does not have the policing, health and quarantine resources that countries such as the United States, Australia and New Zealand have to deal with those. Protecting Samoa therefore from these risks in material part rests at Samoa’s borders and the completeness and correctness of the Passenger Declaration Forms. The Court cannot be seen to excuse any acts that would undermine the protection of Samoa’s borders or signal that false declarations at the border are a trivial matter, in particular when they relate to illicit drug importation.
  5. Accordingly, in terms of the gravity of your offending and your failure to declare the marijuana in your possession, I assess your offending in all the circumstances to be of moderate gravity.
  6. I turn now to the direct and indirect consequences of a conviction on you. In Zhang v Ministry of Economic Development HC Auckland CRI 2010-404-453, 17 March 2011, Asher J considered an application for discharge without conviction on appeal and the effect of a conviction on a person’s immigration status and ability to travel. Asher J stated:

“[14] In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision - making process by a decision to discharge without conviction: R v Fox, Liang v Police; and Steventon v Police.

There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemard...”

  1. In Manoj Vohra v New Zealand Police (Unreported) [2018] NZHC 3192 involving the deportation of the accused, Dunnigham J considered on appeal an application to discharge without conviction which he summarized by stating:

“[12] Put baldly, Mr Vohra will be deported if his conviction stands. If he is discharged without conviction, it is likely, although not inevitable, that the deportation order will be cancelled and his immigration status regularised.”

  1. After considering the application for discharge without conviction involving male assault female and the material in support of that application, Dunnigham J ultimately found that the consequences were out of all proportion to the gravity of the offending and discharged the accused without conviction. The nature of the assault involved the accused slapping his wife with an open palm leaving no injury.
  2. In Police v John Hardin (Unreported) Supreme Court Judgment of former Chief Justice Sapolu (16 January 2018), Sapolu CJ discharged Mr Hardin without conviction on the importation of 2.2 grams of medicinal marijuana. Sapolu CJ however ordered Mr Hardin to leave Samoa the next day.
  3. It is well established that the consequences of a conviction does not need to be inevitable to be taken into account but there must be a real and appreciable risk of that consequence (Vohra (supra); Gregory Williams v Brown [2012] NZCA 197).

The Question of Deportation:

  1. After the original hearing of submissions, I gave leave for further material to be submitted and to hear further submissions on the consequences of a conviction on your employment.
  2. Your current employer has stated that ‘a criminal conviction, especially of this nature, will affect your immigration status’. I accept that given the schema of the Immigration Act 2004, the entry of a conviction to your name will be the cancellation of your temporary residents permit then requiring you to leave Samoa forthwith (section 20(1)(b)).
  3. In terms of the impact of a conviction on your future travel plans, there is no evidence upon which I can rely on as to your future travel plans or as to your travel history to show that you have any clear intention to travel as submitted by your counsel and for what purpose. On the material before me, or indeed the absence of that evidential material, it is speculative.
  4. In terms of your continued employment with your current employer, I accept that a conviction will mean that your employment will end as your temporary resident’s visa will be cancelled.
  5. While I appreciate that a conviction will end your employment in Samoa because your visa will be cancelled, there is no evidence to suggest that a conviction will affect your future employment in your home country or elsewhere. In my assessment, the consequences of a conviction on you based on the material before the Court is moderate.
  6. Finally, I am to determine whether the direct and indirect consequences of a conviction are out of all proportions to the gravity of your offending. I do not find that the consequences of a conviction which I assess as moderate is out of all proportion to the gravity of your offending which I also assess as moderate. In so concluding, the application for a discharge without conviction is declined.

Discussion:

  1. In the material that is before me, you have said that you did not know that medicinal marijuana is illegal in Samoa. I must say that I have some reservations about that. You needed a prescription for the marijuana in the State of Maine. The Customs Declaration Form you completed was also very clear asking whether you may be bringing in goods that may be prohibited or subject to restrictions such as illicit drugs or medicines”. You also did not declare it on your arrivals form, which you should have done.
  2. Now, the charges to which you have pleaded guilty to are serious. It is important that this Court does not condone your actions. To do so would be to encourage others. It should be no secret to any traveler that to carry any drugs across an international border, including medicinal marijuana, should be carefully considered, researched and if at all unsure, declared.
  3. Now I turn to your sentence. Prosecution seeks a non-custodial sentence with a fine of $5,000.00 and I am referred to Police v William Rockliffe [2018] WSSC 122 (25 October 2018) where a fine of $2,500.00 was imposed.
  4. Whilst the quantity of marijuana was greater than in Rockliffe (supra), as it is medicinal marijuana for which you held a prescription, you will be convicted and fined $1,000.00 for the importation charge.
  5. You are accordingly convicted and sentenced as follows:
  6. Your travel documents surrendered to the Court are to be retained until you have paid your fine in full. JUSTICE CLARKE

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