Police v Pritchard [2022] WSSC 37 (3 May 2022)

IN THE SUPREME COURT OF SAMOA
Police v Pritchard [2022] WSSC 37 (03 May 2022)

Case name:	Police v Pritchard & Anor
Citation:	[2022] WSSC 37
Decision date:	03rd May 2022
Parties:	POLICE (Prosecution) v FILIFILI JUNIOR PRITCHARD, male of Vaigaga and ALAPATI HUNT, male of Vaiusu and Vailele (Applicants)
Hearing date(s):	21st & 26th April 2022
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	Both Applications for bail are denied. The Applicants are remanded in custody until their hearing on 5 September 2022.
Representation:	T. Sasagi for Prosecution I. Sapolu for the Applicants
Catchwords:	Bail application – possession of narcotics – possession of utensils – possession without permit – methamphetamine – marijuana – clear glass pipes – straw – glass bottle with a small hose – portable electronic scale – live ammunitions – black caliber – police raid – bail denied.
Words and phrases:
Legislation cited:	Arms Ordinance 1960, 7(1); Constitution of the Independent State of Samoa 1960 Article 9(3); Crimes Act 2013 2013, ss. 33; Criminal Procedure Act 2016, ss. 98(4); 99; 102; 105; Narcotics Act 1967 ss. 7; 7(1)(a); 13(b); 18; 18(a).
Cases cited:	Police v Fialelei (Unreported 7 September 2018); Police v Lam [2018] WSSC 119; Police v Mapu [2022] WSSC 3; R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72; R v Lindsay James Tawairua Wilson [2003] NZCA 3.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

FILIFILI JUNIOR PRITCHARD male of Vaigaga and ALAPATI HUNT male of Vaiusu and Vailele.

Applicants

Counsel: T Sasagi for Prosecution

I Sapolu for the Applicants

Hearing: 21 & 26 April 2022
Ruling: 3 May 2022

RULING OF TUALA-WARREN J ON BAIL APPLICATION

The Bail Applications

1. The Applicants Filifili Junior Pritchard (‘Pritchard’) and Alapati Hunt (‘Hunt’) have been jointly charged with two other co-defendants with four charges;
   • (a) Possession of narcotics (7 mini zip lock bags containing methamphetamine weighing 2.36 grams) pursuant to sections 7(1)(a) and 18(a) Narcotics Act 1967 and section 33 Crimes Act 2013) for which the maximum penalty is imprisonment for life;
   • (b) Possession of narcotics (3 marijuana branches weighing 2.0 grams and loose marijuana leaves weighing 5.6 grams) pursuant to sections 7 and 18 Narcotics Act 1967 and section 33 Crimes Act 2013 for which the maximum penalty is 14 years imprisonment;
   • (c) Possession of utensil (2 clear glass pipes, one straw, one glass bottle with a small hose and one portable electronic scale) pursuant to section 13(b) Narcotics Act 1967 and section 33 Crimes Act 2013 for which the maximum penalty is 7 years imprisonment or 200 penalty units or both; and
   • (d) Possession without permit (three 22 live ammunitions and 1 black caliber) pursuant to section 7(1) Arms Ordinance 1960 and section 33 Crimes Act 2013) for which the maximum penalty is 20 penalty units or 2 years imprisonment or both.
2. It is alleged that this offending occurred on 2 February 2022 when a police raid took place at the home of Pritchard at Vaigaga. The Applicants have been in custody since that date. A hearing date of 5 September 2022 has been set.
3. The Police oppose bail.
4. Those who are bailable as of right are those who are charged with an offence for which the maximum penalty is less than three (3) years imprisonment. The bail applications are brought pursuant to section 98 (4) of the Criminal Procedure Act 2016 (‘CPA’) which provides:
   • (4) A defendant charged with an offence and is not bailable as of right is bailable at the discretion of the Court unless the Court is satisfied that there is just cause for the defendant to be remanded in custody.
5. Due to the nature of the charges against the Applicants, they are bailable at the discretion of the Court.

The Grounds of the Applications

6. The grounds upon which the Applications are made are:
   • (a) There is no just cause for the Applicants to continue being in custody;
   • (b) The Applicants are innocent until proven guilty;
   • (c) Both have pleaded not guilty;
   • (d) No evidence of failing to appear, breaching bail, interfering with witnesses or offending while on bail;
   • (e) Previous convictions for possession of narcotics for both are in 2015 and for possession of marijuana;
   • (f) The quantity of narcotics alleged minimal, .58 of methamphetamine and 1.9 grams marijuana for each defendant; and
   • (g) There has been no disclosure by Prosecution to assess the strength of the evidence and the probability of conviction at this early stage.
7. Counsel relies on the cases of Police v Mapu [2022] WSSC 3 and Police v Fialelei (Unreported 7 September 2018).
8. In Mapu, Justice Nelson highlighted the impact of the pandemic saying “In such an unstable environment and in pursuance of a national strategy to minimize large gatherings and grouping of people, there is presently an inclination on the part of the Courts to remand defendants on bail where-ever possible unless there is a good reason, or as the statute says “just cause” to do otherwise.
9. In Fialelei, Justice Clarke sentenced the defendant to 16 and 8 weeks imprisonment respectively for possession of 0.4 grams of methamphetamine and possession of utensils, namely 3 glass pipes. The starting point was 34 weeks or 8 ½ months. Counsel for the defendant submits that given this sentence, the defendants who allegedly possessed less methamphetamine, will be in custody longer than any possible sentence which may be imposed.
10. Both applicants filed affidavits.
11. For Pritchard, it is submitted that he is 32 years old and a father of 4 young children aged between 10 months and 11 years. His wife who is a police officer is currently pregnant and due in July. This is confirmed in a letter from Samoa Family Health Association. He is the main caregiver of the children and proposes to adhere by any stringent conditions of bail, including a curfew, which he says he will comply with for the sake of his children. He says in his affidavit dated 7 March 2022 that he has no previous convictions of a similar nature to what he understands he is charged with now. He has a previous conviction in 2015 for possession of narcotics which Counsel submits was possession of marijuana. He is being charged with possession of marijuana and methamphetamine.
12. For Hunt it is submitted that he also has 3 young children aged between 2 and 11 year. He accepts he was imprisoned for possession of narcotics in 2015. He says his children depend on him for financial support and he will comply with any bail conditions for the sake of his children.

The Opposition

13. Both Applications are opposed by the Prosecution. The grounds of the opposition are;
    • (a) The applicants are charged with serious offences;
    • (b) There is a risk that the Applicants may reoffend while on bail as both have previous convictions. Pritchard’s previous convictions are from 2012-2020 for traffic, drug and violent offending, and imprisoned in 2015 for possession of utensil. Hunt was imprisoned in 2015 for possession of narcotics. There is a high tendency that they will reoffend given their involvement with drugs;
    • (c) The seriousness of the punishment to which the Applicants are liable and the severity of the punishment likely to be imposed given the penalty of 2 years to life imprisonment;
    • (d) It is in the interests of justice that the Applicants be denied bail as it is a combination of methamphetamine, cannabis and weapons which is a grave concern.
14. The affidavit of Sergeant Alapati Moafanua is filed in support.

Approach to a bail application

15. The Court’s approach to a bail application confirmed in Police v Lam [2018] WSSC 119 (4 December 2018), refers to mandatory factors which the Court must take into account when considering bail, and discretionary factors.
16. The mandatory factors are;
    • (a) Whether there is a risk that the defendant may fail to appear on the date to which he has been remanded; or
    • (b) Whether there is a risk that the defendant may interfere with witnesses or evidence; or
    • (c) Whether there is a risk that the defendant may offend while on bail; and
    • (d) Any matter that would make it unjust to detain the defendant.
17. Sapolu CJ says in Police v Lam: The next stage of this approach is that in assessing the risks and any matter that would make it unjust to detain the defendant ..., the Court may take into account the other matters stated in s.99. These matters are discretionary.
18. When considering if there is just cause for the Applicant to be remanded in custody, I must take into account all factors in section 99 CPA. Section 99 incorporates all those factors assessed by Sapolu CJ to be mandatory and those he assesses as discretionary.
19. Section 99 provides in full;
    • 99. Factors relevant to decision as to bail - In considering whether there is just cause for the defendant to be remanded in custody or for continued detention, a Court must take into account the following:
    • (a) whether there is a risk that the defendant may fail to appear in Court on the date to which the defendant has been remanded;
    • (b) whether there is a risk that the defendant may interfere with witnesses or evidence;
    • (c) any previous conviction on an offence of a similar nature;
    • (d) whether there is a risk that the defendant may offend while on bail;
    • (e) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;
    • (f) the character and past character or behaviour, in particular proven criminal behaviour of the defendant;
    • (g) whether the defendant has a history of offending while on bail, or breaching Court orders including other orders imposing bail conditions;
    • (h) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind;
    • (i) the strength of the evidence and the probability of conviction or otherwise;
    • (j) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;
    • (k) any other matter that is relevant in the particular circumstances.
20. Evidence in bail hearings is provided in section 105 CPA;
    • 105. Evidence in bail hearing - (1) When hearing an application for bail, a Court may receive as evidence any statement, document, information, or matter that it considers relevant, whether or not it would be otherwise admissible in a court.
    • (2) As an exception to subsection (1), when considering the matter described in section 99:
    • (a) the Court may only consider a statement, document, information, or matter that would be admissible in a Court if made by the appropriate person or given or produced in proper form; but
    • (b) for the purpose of the bail hearing it does not matter whether the evidence –
    • (i) is given or produced by the appropriate person or given or produced in sworn or unsworn form; or
    • (ii) is otherwise given or produced in a form in which it would be admissible in a court.
21. For narcotics offending, section 102 of the CPA is relevant and it provides;
    • 102. Bail allowable for narcotic offending only by order (1) A defendant who is charged with or convicted of a narcotic offence may be granted bail;
    • (a) if the defendant does not have a previous conviction for a narcotic offence, by order of a Registrar; or
    • (b) in any other case, by order of a Judge.
    • (2) A defendant who is charged with or convicted of a narcotic offence may be granted bail only under subsection (1).

Discussion

22. The Applicants are bailable at the discretion of the Court given the maximum penalties of the charges and three of the four charges being narcotics charges, with both Applicants having previous convictions for the same offending. The question I must determine is whether there is just cause for the Applicants to be remanded in custody. In determining that question, section 99 of the CPA states that I must take into account the following factors.
23. I have grouped these factors together as factors pertaining to the risk of reoffending, interference and non-appearance
    • (a) whether there is a risk that the defendant may fail to appear in Court on the date to which the defendant has been remanded.
    • (b) whether there is a risk that the defendant may interfere with witnesses or evidence.
    • (c) whether there is a risk that the defendant may offend while on bail.
    • (d) whether the defendant has a history of offending while on bail, or breaching Court orders including other orders imposing bail conditions;
24. Both do not have a history of failing to appear, or breaching bail or interfering with witnesses in the past. However, given their history of drug offending, and the fact that they have co-defendants, this increases the risk of reoffending, interference and non-appearance in my view. The Applicants are charged with serious offences which if proven will most certainly attract custodial sentences. There are also two other co-defendants which opens up the possibility of collusion and interference.
25. The following factors deal with the current charges and case against the defendants and prior criminal behaviour.
    • (a) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind.
    • (b) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed;
    • (c) the strength of the evidence and the probability of conviction or otherwise.
    • (d) any previous conviction on an offence of a similar nature.
    • (e) the character and past character or behaviour, in particular proven criminal behaviour of the defendant;
26. The offence of possession of methamphetamine is a very serious one as reflected in the penalty imposed by Parliament. The Applicants are jointly charged with narcotics and firearm offences which in combination, is a concern to the Court as a public safety issue. Both have previous convictions for possession of narcotics in 2015. Pritchard has a long list of previous convictions. In my view the fact that methamphetamine was allegedly found is of great concern. In R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 is was said that methamphetamine “induces aggressive and irrational behavior, and is regularly responsible for other offending involving extreme violence, a phenomenon not commonly associated with other drugs”.
27. This leads me to the severity of the punishment that is likely to be imposed. As opposed to Police v Mapu and Police v Fialelei where the defendants did not have previous convictions for possession of narcotics, it is likely that if found guilty, any starting point will be higher than Police v Fialelei given the nature of the Applicants’ previous convictions.
28. In saying that I am conscious that at this stage, the evidence remains untested, the Prosecution still faces the task of proving the charges beyond reasonable doubt and the determination of the Applicants’ guilt or innocence is pending. The strength of the Prosecution evidence at present lies in the evidence of police officers who conducted the raid.
29. Lastly I deal with any other matter that is relevant in the particular circumstances.
30. The Applicants have been in custody since 2 February 2022. They both have young families and are concerned for the welfare and livelihood of their families without them. Pritchard’s wife is expecting another child. They are willing to abide by any stringent bail conditions.
31. The Applicants are presumed innocent until proven guilty in accordance with Article 9(3) of the Constitution which provides that every person charged with an offence shall be presumed innocent until proved guilty according to law. However, an application for bail is not concerned with the innocence or guilt of a defendant. A bail application is concerned with the question of whether a defendant should be at liberty pending the determination of guilt or innocence. (see: Police v Lam, R v Lindsay James Tawairua Wilson [2003] NZCA 3, para [25]).
32. When viewed in totality, I find there is just cause for the Applicants to be remanded in custody. The charges faced by the Applicants are very serious and if they are found guilty, there is a high likelihood of a custodial sentence given the combination of drug and firearm offences. Both have a previous conviction for possession of narcotics in 2015, the very charge that they are being charged with now. A hearing date for this matter being in September 2022 is 5 months away. This is by no means an excessive amount of time to wait for a trial.
33. I do have sympathy for the Applicants given their young families. But these are the consequences of being charged with serious offences. I am also mindful that they should be kept away from other co-defendants to reduce any interference.

Result

34. Both Applications for bail are denied. The Applicants are remanded in custody until their hearing on 5 September 2022.

JUSTICE TUALA-WARREN