Police v Palu [2021] WSSC 82 (10 November 2021)

IN THE SUPREME COURT OF SAMOA
Police v Palu [2021] WSSC 82 (10 November 2021)

Case name:	Police v Palu
Citation:	[2021] WSSC 82
Decision date:	10 November 2021
Parties:	POLICE v TAGALOASA MAUGALOTO PALU a.k.a. PHILLIP MAUGALOTO BURGESS a.k.a. PHILLIP MAUGALOTO ULIEAFE BURGESS male of Saina Faleata, Vaitele fou, Faleula, Savaia and Falevao & TAOFI MOSE a.k.a. TAOFI MAUA MOSE female of Saina Faleata and Tuanai.
Hearing date(s):
File number(s):	S1540/21. S1539/21. S1538/21. S1537/21. S1536/21.
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	The first named defendant Tagaloasa is sentenced as follows: (i) On the charge of possession of methamphetamine, you are convicted and sentenced to 12 months’ imprisonment; (ii) On the charge of possession of narcotics, you are convicted and sentenced to 6 months’ imprisonment; (iii) On the charge of possession of utensils, you are convicted and sentenced to 3 months’ imprisonment; (iv) On the charge of possession of unlawful ammunition, you are convicted and sentenced to 9 months’ imprisonment; (v) On the charge of possession of ammunition without a permit, you are convicted and sentenced to 2 months’ imprisonment. All sentences will be served concurrently which means that you will serve 12 months’ imprisonment, less time spent in custody. For the second named defendant Taofi. I have considered your culpability. The material before me point to Tagaloasa as being the more culpable of you two (2). You are a first offender and I have decided to impose a non-custodial sentence. On all 5 charges, you are convicted and sentenced to 16 months’ supervision.
Representation:	V. Faasii for Prosecution A. Matalasi for First & Second Defendants
Catchwords:	possession of Methamphetamine- possession of narcotics possession of utensil - possession of unlawful ammunition- possession of ammunition without permit – aggravating factors –early guilty plea – mitigating factors – maximum penalty – starting point for sentence – sentence
Words and phrases:
Legislation cited:	Arms Ordinance 1960 ss.7(1)(4); 12(3); Narcotics Act 1967 ss. 7; 7(1)(a); 13(b); 18; 18(a).
Cases cited:	Police v Afamasaga [2018] WSSC 118; Police v Aloese [2021] WSSC 14; Police v Barlow [2017] WSSC 163; Police v Barlow and Vagana (28 November 2017); Police v Fialelei [2018] WSSC 162; Police v Fuivaa (13 February 2018). Police v Weber and Ah Chong (18 March 2016) ; R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72; Police v Tevaga [2016] WSSC 38.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

TAGALOASA MAUGALOTO PALU a.k.a. PHILLIP MAUGALOTO BURGESS a.k.a. PHILLIP MAUGALOTO ULIEAFE BURGESS male of Saina Faleata, Vaitele fou, Faleula, Savaia and Falevao

First Defendant

A N D

TAOFI MOSE a.k.a. TAOFI MAUA MOSE female of Saina Faleata and Tuanai.

Second Defendant

Counsel: V. Faasii for Prosecution

A. Matalasi for First and Second Defendants
Sentence: 10 November 2021

SENTENCING OF JUSTICE ROMA

Charges

1. You both appear for sentence on 5 joint charges having pleaded guilty to all on 25 October 2021:
   • (i) Possession of Methamphetamine contrary to sections 7(1)(a) & 18(a) Narcotics Act 1967 which attracts a maximum penalty of life imprisonment;
   • (ii) Possession of Narcotics contrary to section 7 and 18 Narcotics Act 1967 which attracts a 14 years’ imprisonment maximum penalty;
   • (iii) Possession of utensils contrary to section 13(b) Narcotics Act 1967 which carries a 7 years’ imprisonment maximum penalty;
   • (iv) Possession of unlawful ammunition contrary to section 12(3) Arms Ordinance 1960 which attracts a maximum penalty of 5 years’ imprisonment;
   • (v) Possession of ammunition without a permit contrary to section 7(1)(4) Arms Ordinance 1960 which carries a maximum penalty of 2 years’ imprisonment or a fine of $2000 or both.

Offending

2. According to the prosecution summary which you both accepted on 21 September 2021, police conducted a lawful search of Moatoga Complex at Fugalei pursuant to a warrant, after receiving information that there were unlawful drug related activity being carried out thereat. During a search of the room that you occupied, police found:
   • (i) 2 mini plastic bags containing methamphetamine weighing 0.3 grams;
   • (ii) 40 marijuana cigarettes wrapped in foil weighing 12.07 grams;
   • (iii) one marijuana branch with leaves weighing 0.93 grams;
   • (iv) 2 glass pipes;
   • (v) 34 x 9mm live rounds, 1 x 40mm live round, 1 x 38mm special live round, 2 x 30mm caliber live rounds, 3 x 9mm live rounds, 2 x 22 magnum live rounds and 2 x 32 calibre live rounds;
   • (vi) 62 x 22 live rounds and 17 x 12 gauge live rounds.
3. Police investigation confirmed that the ammunitions in (v) above were unlawful and those in (vi) were without permits.
4. In the re sentence report, you both admit possession of the substances. Taofi claims that they belonged to Tagaloasa who says that he bought the substances for use by his workers and fishermen. Even if that were so, which I do not accept, there is no explanation for the large quantity of live unlawful ammunition and ammunition without a permit which were also found during the search.

Aggravating Factors

5. In relation to the offending, the aggravating features are:
   • (i) quantity of narcotics – whilst I accept that the amount of methamphetamine is relatively small, the quantity of marijuana joints is not insignificant;
   • (ii) circumstances of offending – it involved not just possession of illegal drugs but a large number of unlawful ammunition. Though Tagaloasa claims through Probation that they were not for his personal use, he concedes obtaining the substances for supply to his workers.
6. Tagaloasa’s previous conviction for an unrelated offence will not count as an aggravating factor.

Mitigating Factors

7. I take into account the following mitigating factors personal to you as offender:
   • (i) Guilty pleas at the earliest;
   • (ii) Your personal circumstances. Tagaloasa is 39 years of age. You have 3 children including 2 from a previous relationship. You have had a reasonably good education having completed a Bachelors degree at the National University of Samoa. You are a talented individual having represented the national team in rugby league. You won a rugby playing contract in New Zealand which unfortunately ended due to injury. You met your current partner and co accused in 2020.
   • (iii) Taofi is 40 years of age. She is a widow and had met Tagaloasa in 2020. Together you have a 6-year-old adopted son. A testimonial from Pastor Marasavana Misilei speaks highly of your character. You are a first offender.

Discussion

8. Possession and use of illegal and illicit drugs continues to be a huge problem for our small country. And the Court must continue to play its part in discouraging and deterring such trend. The impact of methamphetamine has been well noted by the court in previous decisions. In Police v Barlow [2017] WSSC 163, Tuala – Warren J cites R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 which states:
   • “Methamphetamine is a particularly destructive drug for users, it is highly addictive with profound mental and physical side effects. It includes aggressiveness and irrational behavior 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 organized crime is heavily involved.”
9. As to its prevalence I echo the sentiments of my fellow brother and sister Judges in previous sentencing decisions. Nelson J in Police v Tevaga [2016] WSSC 38 noted:
   • “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 is possible to stamp out this growing trend before the problem becomes entrenched in Samoan society as is the use and consumption of marijuana.”
10. Unsurprisingly in most cases of hard illicit drugs, they also involve unlawful firearms and ammunition. This case is no different. In Police v. Tuanai Ioka [11 June 2020]. Clarke J acknowledges the trend.
    • “The increase in penalty by Parliament for drug possession and for unlawful weapons is because of the disturbing emerging trend of escalation in both types of offending... People use their firearms to protect their drug business and therefore drug killing emerge.”
11. In determining the appropriate sentence in your case, deterrence becomes a significant consideration. A custodial sentence is therefore warranted. Prosecution recommend a starting point of 2 years on the lead charge of possession of methamphetamine. Your counsel concedes that is an appropriate starting point though she goes on further to submit that the court may still arrive at a non-custodial end sentence. In view of the circumstances and totality of the offending I do not accept that submission at least in relation to the first named accused.
12. I have carefully reviewed the sentencing authorities cited by both prosecution and your counsel (Police v Tevaga [2016] WSSC 38; Police v Fialelei [2018] WSSC 162; Police v Afamasaga [2018] WSSC 118; Police v Aloese [2021] WSSC 14; Police v Barlow and Vagana [28 November 2017]; Police v Weber and Ah Chong [18 March 2016]; Police v Fuivaa [13 February 2018]).
13. I accept 2 years is an appropriate starting point. For the defendant Tagaloasa, I adopt 2 years on the lead charge of possession of methamphetamine. I deduct 3 months for your personal circumstances including your first offender status. I deduct a further 9 months for guilty plea. I make no other deductions. The end sentence is a term of 12 months.

Result

14. The first named defendant Tagaloasa is sentenced as follows:
    • (i) On the charge of possession of methamphetamine, you are convicted and sentenced to 12 months’ imprisonment;
    • (ii) On the charge of possession of narcotics, you are convicted and sentenced to 6 months’ imprisonment;
    • (iii) On the charge of possession of utensils, you are convicted and sentenced to 3 months’ imprisonment;
    • (iv) On the charge of possession of unlawful ammunition, you are convicted and sentenced to 9 months’ imprisonment;
    • (v) On the charge of possession of ammunition without a permit, you are convicted and sentenced to 2 months’ imprisonment.

All sentences will be served concurrently which means that you will serve 12 months’ imprisonment, less time spent in custody.

15. For the second named defendant Taofi. I have considered your culpability. The material before me point to Tagaloasa as being the more culpable of you two (2). You are a first offender and I have decided to impose a non-custodial sentence. On all 5 charges, you are convicted and sentenced to 16 months’ supervision.

JUSTICE FEPULEA’I A. ROMA