Police v Aloese [2021] WSSC 14 (31 March 2021)

SUPREME COURT OF SAMOA
Police v Aloese [2021] WSSC 14

Case name:	Police v Aloese
Citation:	[2021] WSSC 14
Decision date:	31 March 2021
Parties:	POLICE (Prosecution) AND PITOITUA ALOESE, male of Fa’atoia. (Defendant)
Hearing date(s):
File number(s):	S2315/19, CD 11/02/20
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- For possession of two (2) grams of methamphetamine the defendant will be convicted and sentenced to eighteen (18) months in prison, remand in custody time awaiting sentence to be deducted. - In respect of the three counts of marijuana this totals up to possession of 46 grams which is a considerable quantity. But the prosecution have filed individual charges so I will deal with each matter individually. Taking into account all relevant factors including those in mitigation advanced by defence counsel the defendant will be convicted and sentenced to six (6) months on each charge cumulative to each other but concurrent to the imprisonment term for possession of methamphetamine. That means a net sentence of eighteen (18) months to be served concurrent to the methamphetamine term. - In respect of the charge involving the modified .22 rifle a start point of three (3) to four (4) years in prison in my view is appropriate. But because this is a first case of its kind I will start at the lower end of the spectrum. This is also appropriate given the rudimentary nature of the weapon in question. - Following the same approach as before and making the appropriate deductions Pitoitua for your testimony against your co-defendant and your guilty pleas I arrive at the same end sentence of eighteen (18) months in prison. But as this is offending of a different nature and kind and paying due regard to its seriousness, this term will be served cumulative to your drug sentences. - The charge of possession of the .38 pistol following the same methodology convicted and sentenced to twelve (12) months in prison, concurrent term. - In respect of the two ammunitions charges convicted and sentenced to six (6) months each charge also concurrent terms. - For the possession of the five (5) pipes, as this is your second such offending, convicted and sentenced to thirty-six (36) months or three (3) years in prison, concurrent term. - In effect therefore Pitoitua your imprisonment term for these charges is three (3) years less remand in custody time.
Representation:	L Faasii for prosecution C Vaai for defendant
Catchwords:	Pleaded guilty – possession of glass pipes – possession of methamphetamine – possession of marijuana cigarettes – possession of marijuana – possession of unlawful weapon – 38 special revolver – modified .22 rifle – possession of unlawful ammunitions – sentencing band -
Words and phrases:
Legislation cited:
Cases cited:	Police v Aloese [2021] WSSC 10 Police v Tevaga [2016] WSSC 38 Police v Patau [2013] WSSC 120 Police v Tauialo [2019] WSSC 68
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PITOITUA ALOESE, male of Fa’atoia.
Defendant

Counsel:
L Faasii for prosecution
C Vaai for defendant

Sentence: 31 March 2021

S E N T E N C E

1. The defendant has pleaded guilty to charges S2315/19 that at Fa'atoia on 26 December 2019 he knowingly had in his possession five (5) glass pipes for the purpose of committing an offence against the Narcotics Act 1967. Also same date same place he had in his possession methamphetamine weighing two (2) grams. Further same date same place he was in knowing possession of twenty-three (23) marijuana cigarettes securely wrapped in white rolling paper weighing 12.3 grams. Further same date same place he was in knowing possession of loose green leaves of marijuana weighing 25.9 grams. Further same date same place in knowing possession of two marijuana branches weighing 7.8 grams. Further same date same place he had in his knowing possession an unlawful weapon namely one 38 special revolver. Also same date same place knowingly in possession of another unlawful weapon a modified .22 rifle. And finally same date same place in knowing possession of unlawful ammunitions namely two (2) twelve gauge shells and six (6) single shot .22 ammunitions. Total of nine (9) charges.
2. Others were also involved in this offending all of whom except for one were found guilty and who are being separately dealt with by the court: see Police v Aloese [2021] WSSC 10. Pitoitua was the primary witness at the trial of those co-defendants.
3. The Police summary of facts in this matter was fairly much in accord with the evidence I heard at trial: namely that on 26 December 2019 which was a public holiday for Boxing Day the defendants wife Esther Tani came to his house at Fa’atoia to visit sometime in the morning. She was at the time eight (8) months pregnant and was followed later in the day by her mother Molini Alema. Molinis evidence was she had only been at the defendants house for about an hour when she heard Esther being beaten by the defendant in their locked bedroom. She tried to rescue her daughter but to no avail so she went to neighbours for help. They advised her to call the Police which she did.
4. This led to Police intervention and as the defendant was well-known to the police from previous encounters a large party raided the defendants property that evening. When the Police arrived the house was locked and a taxi was parked out front. The taxi had been called to the house by one of the co-defendants. The Police identified themselves at least three times and heard people running around in the house. Officers surrounded the house and some forcefully entered the building. One of the co-defendants jumped through a glass window on the side of the house but was apprehended by three Police officers.
5. Inside the house was found the defendant and the rest of the co-defendants as well as a quantity of narcotics and unlawful weapons and ammunitions. These are the subject of the charges. All were found in the defendants bedroom despite his attempts to hide some of the narcotics behind the mirror.
6. The defendants evidence at trial was some of the narcotics belong to him and some were brought to his house by the co-defendants. The weapons and unlawful ammunitions however were all his. As all these things were in his possession he pleaded guilty to all the charges.
7. The trial evidence also showed the defendant had an external camera on the outside of his house. Something commonly used by experienced drug offenders. It was through this that his wife was able to see the Police raiding party descend on the property.
8. The defendant is an experienced drug offender. He has a number of convictions for violent offending including one in 2014 for narcotics for which he was sentenced to three (3) years in prison. That was for dealing in marijuana but he was also sentenced to eighteen (18) months in prison for possession of glass pipes there being no methamphetamine found in his possession on that occasion.
9. The defendants sentencing must not only serve to dissuade him from his path of continued drug offending but also to persuade others it is not worth the risk becoming involved in drugs. In the words of the well-known saying just say “No” to drugs. It is that simple. The sentence must also hold the defendant accountable for his offending, promote in him responsibility for his actions and denounce his behaviour. And send a message to his fellow drug offenders and to the community at large that not only the Police but the courts are taking a firm stance against drug users, suppliers and manufacturers.
10. As noted in cases such as Police v Tevaga [2016] WSSC 38:

“Illicit narcotics is the scourge of many a society and Samoa is becoming no exception. This has led to initiatives such as the Drug and Alcohol Court being set up and to Parliament doubling the maximum penalty for possession of marijuana from seven (7) to fourteen (14) years in prison. And Parliament making possession of the so-called harder drugs such as methamphetamine also known as ice punishable by a maximum of life imprisonment. That puts possession of methamphetamine or ice on par with serious criminal offences such as rape, murder and manslaughter.”

11. It is also important that the community especially our children and young people be protected from drug suppliers, pushers and users. It is all our responsibility to ensure their lives are not ruined by the allure of narcotics.
12. I deal firstly with the most serious of the charges, possession of methamphetamine. Sentencing in such cases is governed by the principles propounded by His Honour Slicer, J in the well-known authority of Police v Patau [2013] WSSC 120 where a sentencing band approach was adopted for cases involving commercial dealing and supply of methamphetamine.
13. There is however no evidence before me that on the day in question covered by the present charges the defendant was involved in the sale or supply of methamphetamine. As stated in Tevaga “suspicion is insufficient”. And like that case the evidence here is that the ice was brought to the defendants house by his co-defendant Stewart Tuitama to exchange for marijuana with the co-defendant Ana Fuimaono: see paragraph 9 of the ruling in Aloese. It was the defendant Stewart who jumped through the glass window on the side of the house and who was apprehended by the Police carrying a significant quantity of ice in his backpack. I am of the view therefore that Patau does not apply to Pitoitua and he must be sentenced on the basis of possession on this occasion for personal rather than commercial use.
14. Sentencing for methamphetamine possession was helpfully tabulated by my brother Justice Clarke in Police v Tauialo [2019] WSSC 68. Based on that case and the two (2) grams quantity alleged to be in your possession I agree with the prosecution start point of two (2) years in prison.
15. There would have been a different start point if the prosecution had also alleged the defendant to be in possession of the ice in the co-defendant Tuitamas backpack. As the evidence indicated Tuitama was also in the defendants bedroom actively participating in the ice and marijuana party that was going on there. But the prosecution elected to only charge the defendant with the ice found in the bedroom and the court is therefore limited to that quantity of two (2) grams in sentencing. However the two (2) years start point must be upgraded to three (3) years because of the defendants previous conviction which includes as noted serious narcotics offending.
16. From that start point I make deductions for mitigating factors in your favour as highlighted by your lawyer. Firstly for the defendants co-operation and assistance to the Police as evidenced by his being the main witness in the trial against his co-defendants. A measure that takes courage especially since the defendant is confined in the same prison albeit in a different area as his co-defendants. I reduce his sentence by twelve (12) months, leaves two (2) years in prison.
17. For the defendants guilty plea a standard one-quarter reduction of the balance of sentence that is six (6) months will apply, leaves eighteen (18) months in prison.
18. For possession of two (2) grams of methamphetamine the defendant will be convicted and sentenced to eighteen (18) months in prison, remand in custody time awaiting sentence to be deducted.
19. In respect of the three counts of marijuana this totals up to possession of 46 grams which is a considerable quantity. But the prosecution have filed individual charges so I will deal with each matter individually. Taking into account all relevant factors including those in mitigation advanced by defence counsel the defendant will be convicted and sentenced to six (6) months on each charge cumulative to each other but concurrent to the imprisonment term for possession of methamphetamine. That means a net sentence of eighteen (18) months to be served concurrent to the methamphetamine term.
20. In relation to the possession of firearm charges these however are a different species of offending. They involve possession of illegal and significant weapons one a .38 special pistol the other a modified .22 rifle and ammunitions. The rifle is of a kind not seen before by me or to my knowledge by this court. It is a seemingly innocent collection of metals but when assembled primed and loaded, at close range it becomes a lethal weapon. It is of a primitive and basic design but nevertheless well capable of killing or inflicting as much damage as a .22 rifle arguably more because of the short barrel. Both the pistol and the modified rifle were tested by the Police and found to be in working condition.
21. It is disturbing to think that such weapons exist in this country and to know there is sufficient know how and expertise capable of designing and putting together such a homemade firearm. What is very obvious is this weapon is easy to conceal and to carry around. That should ring some serious alarm bells with the Police as it does with the Court.
22. Possession of unlawful weapon carries a five (5) years maximum penalty under the relevant legislation. Narcotics and armed offending often go hand in hand because those dealing or using illicit narcotics are often called upon to defend their illegal activities from interference by the Police or other parties. To the extent that the two have been described as offences which are brother and sister to each other, and where there is one there is commonly the other as well.
23. Parliament has quite rightly increased the penalty for arms offences given these trends and the increasingly large number of illegal firearms flowing into the country. The defendant has added a new twist, that of the modified illegal firearm designed specifically for concealment. The response to that must be unequivocal and stern and the message going out must be equally clear. Such modified weapons are recognized for what they are and their possession and use is not to be tolerated.
24. In respect of the charge involving the modified .22 rifle a start point of three (3) to four (4) years in prison in my view is appropriate. But because this is a first case of its kind I will start at the lower end of the spectrum. This is also appropriate given the rudimentary nature of the weapon in question.
25. Following the same approach as before and making the appropriate deductions Pitoitua for your testimony against your co-defendant and your guilty pleas I arrive at the same end sentence of eighteen (18) months in prison. But as this is offending of a different nature and kind and paying due regard to its seriousness, this term will be served cumulative to your drug sentences.
26. The charge of possession of the .38 pistol following the same methodology convicted and sentenced to twelve (12) months in prison, concurrent term.
27. In respect of the two ammunitions charges convicted and sentenced to six (6) months each charge also concurrent terms.
28. For the possession of the five (5) pipes, as this is your second such offending, convicted and sentenced to thirty-six (36) months or three (3) years in prison, concurrent term.
29. In effect therefore Pitoitua your imprisonment term for these charges is three (3) years less remand in custody time.
30. The court has seen enough of you Pitoitua next time you appear on drug charges you may well find yourself in a lock him up and throw away the key category. Consider yourself warned.
    

JUSTICE NELSON