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Police v Pritchard [2022] WSSC 51 (14 October 2022)
IN THE SUPREME COURT OF SAMOA
Police v Pritchard [2022] WSSC 51 (14 October 2022)
| Case name: | Police v Pritchard |
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| Citation: | |
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| Decision date: | 14 October 2022 |
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| Parties: | POLICE (Prosecution) v JUNIOR PRITCHARD a.k.a FILIFILI PRITCHARD (Accused), male of Vaigaga and Luatuanuu |
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| Jurisdiction: | CRIMINAL |
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| Place of delivery: | Supreme Court of Samoa, Mulinuu |
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| Judge(s): | Justice Niavā Mata K. Tuatagaloa |
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| On appeal from: |
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| Order: | The accused, Junior Pritchard is convicted and sentenced as follows:
(i) Possession of methamphetamine: 2 years and 3 months’ imprisonment;
(ii) Possession of one (1) glass pipe, a straw, one (1) glass bottle and an electronic scale: 4 months’ imprisonment;
(iii) Possession of marijuana branches and leaves: 1 year and 6 months’ imprisonment.
The sentences are to be served concurrently; less time in custody. |
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| Representation: | I. Atoa for Prosecution
I. Sapolu for the Accused |
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| Catchwords: | Possession of narcotics – methamphetamine – cannabis – marijuana – possession of utensils –possession
of unlawful live ammunitions – police raid – jointly charged with other defendants – previous convictions of similar
nature – dependent on drugs – custodial sentence. |
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| Words and phrases: |
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| Legislation cited: | Arms Ordinance 1961, ss. 4; 7(1); Narcotics Act 1967, ss. 7(1)(a); 13(b); 18(a)(a); 18(a)(b). |
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| Summary of decision: |
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IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
P O L I C E
Prosecution
A N D:
JUNIOR PRITCHARD a.k.a FILIFILI PRITCHARD, male of Vaigaga and Luatuanuu.
Accused
Counsel: I. Atoa for Prosecution
I. Sapolu for the Accused
Date: 14 October 2022
SENTENCING OF TUATAGALOA J
- The accused, Junior Pritchard, pleaded guilty and appears for sentence on the following charges under the Narcotics Act 1967 and Arms Ordinance 1961.
- (i) Possession of a Class A narcotic, namely methamphetamine (“ice or meth”) found in seven (7) zip lock plastic bags
weighing in total 2.6grams pursuant to s.7(1)(a) with a penalty of life imprisonment under s.18(a)(a);
- (ii) Possession of Class B narcotic namely Sativa L cannabis (marijuana) of three (3) marijuana branches with leaves weighing 2grams
and loose marijuana leaves weighing 5.6grams pursuant to s.7(1)(a) with a penalty of maximum 14 years’ imprisonment under s.18(a)(b);
- (iii) Possession of two (2) clear glass pipes, a straw, a glass bottle and one portable electronic scale pursuant to s.13(b) with
a penalty of maximum 7 years’ imprisonment or $20,000 fine or both; and
- (iv) Possession of unlawful (3) 22 live ammunitions and one (1) black caliber pursuant to s.7(1) & (4) of the Arms Ordinance 1960 with a penalty of maximum 2 years’ imprisonment or $2000 fine or both.
The offending
- According to the summary of facts that was read out and accepted by the accused, the Police on 2nd February 2022 carried out a raid of the accused property whereby they found the following substances and unlawful live ammunitions.
At the accused’s house was the accused and three other males. All four were jointly charged with only the accused who had vacated
his ‘not guilty’ plea to guilty to all four (4) charges. His co-accused’s maintained their ‘not guilty’
pleas.
- The Pre-Sentence Report (PSR) dated 2nd August 2022 obtained from the accused has the accused conceding to the offending. The accused explained in the PSR that he and his
co-accused’s were having a drinking session at his house during the night and were smoking marijuana and meth or ice at the
same time whilst playing darts. At around 4am they were caught when a Police raid was carried out on the premises.
The accused
- The accused is a repeat offender and has a variety of previous convictions since 2014 which includes two (2) prior convictions for
armed with a dangerous weapon in 2014 to which he was sentenced to 1 year and 6 months’ imprisonment and in 2015 for possession
of utensils in 2015 where he was sentenced to 6 months’ imprisonment.
- His personal circumstances from the PSR is that he is 35 years’ old, married with five (5) children. He operates a mechanical
workshop that provides for his family. His wife also works for additional financial support for their family.
- There are written testimonials from his parents and the Bishop of his church who both refer to Junior as a loving and caring person
to his children, a charismatic and kind person whom his Bishop says is compassionate, understanding and easy to get along with. It
is obvious from the written testimonials that the parents and the Bishop have are oblivious of Junior’s history of narcotics
use.
The aggravating factors
- The Prosecution submits that the aggravating features of the offending are:
- (i) Prevalence of narcotics offending;
- (ii) The quantity of drugs found – 2.3g of meth and 7.6g of marijuana in total;
- (iii) Previous conviction for similar offending with possession of utensils (2015);
- (iv) The attempt by the accused to conceal the drugs by running away with the back pack which contained drugs; and
- (v) Effects of narcotic on the community especially methamphetamine.
- The prosecution submits for a starting point of 2 years and 8 months with an uplift of 4 months for his similar previous conviction.
The Defense Counsel submissions
- Counsel submits that Mr Pritchard has a long standing history of polysubstance dependence which started in his early teens in New
Zealand. Mr Senio opines that Mr Pritchard “lacks the necessary skills needed to manage his addiction, as evident by his criminal
history, lifestyle and reported multiple attempts to address his ongoing addiction issues and behaviors.”[1]
- Counsel for the accused submits that Mr Pritchard clearly has a drug problem that must be addressed by rehabilitation. She seeks
for a non-custodial sentence saying that the accused based on the Assessment by Mr Senio be given the opportunity to engage in addiction
treatment with the Salvation Army.
- This rehabilitative approach Counsel says is consistent with Article 71 of the Constitution and section 17 of the Evidence Act 2016.
I find Counsel’s submissions confusing and convoluted. Article 17 refers that customs may be taken into by account by the Supreme Court. Ms. Sapolu did not point to what customs involved that the Court should take into
account. Furthermore, her reference to section 17 of the Evidence Act is misplaced as that section refers to civil proceedings yet
the present is criminal.
The Alcohol and Drugs Assessment Treatment
- The Alcohol and Drugs Court (ADC) runs a similar program with that of Salvation Army. The programs are psycho educational and does
not run treatment for drug addiction, the same I believe with the Salvation Army. The accused is not eligible for the programs monitored
by the Alcohol and Drugs Court for the following reasons. The criteria for eligibility to the Alcohol and Drugs Court is that the
offence is not maximum 14 years or life imprisonment and that the sentencing indication is not more than 2 years’ imprisonment.
The accused must first plead guilty in the earlier opportunity when the charges are finalised to trigger the process. Mr Pritchard
together with his co-accused’s pleaded not guilty on 7th March 2022 when the charges were finalized to which he later vacated to guilty on 27th June 2022. The offence he is charged with has a penalty of life imprisonment.
- Counsel for the accused alludes to the accused having a drug addiction. According to the Report obtained from the Alcohol and Drugs
Clinician for the Salvation Army, Mr Senio assessed the accused to have a severe dependence on drugs – both methamphetamine
and marijuana.
Mr. Pritchard accordingly has a long standing history with methamphetamine going back 19 years. I am surprised that Mr Pritchard
was never assessed and referred for drug addiction treatment when he was in New Zealand. - My understanding of drug addiction treatments in New Zealand is those with addictions are admitted to “residential houses”
where they would live and undergo specialized treatments for some time to help with their addictions. The treatment would be both
medical and psycho-educational. Samoa does not have the facilities or the resources to carry out specialized treatment for drug addictions
nor a place for those with addictions to be admitted to or to stay whilst undergoing treatment. The offenders eligible for the ADC
or those referred to the Salvation Army live with families and attend the psycho-educational programs. There is no specialized treatment
available for drug addictions in Samoa. The programs run by the Salvation Army and ADC are psycho-educational programs.
- Counsel submits that the longest abstinence Mr Pritchard has had from methamphetamine and marijuana was when he was serving six (6)
months for possession of utensils used for the consumption of methamphetamine.
- I am mindful that Mr Pritchard has not had the opportunity before to attend the psycho-educational programs run by the ADC and Salvation
Army but I am of the view that Mr Pritchard’s addiction status is beyond those programs run by the ADC and the Salvation Army.
In any event, I am aware that the Salvation Army runs alcohol and drugs programs at the Prisons that Mr Pritchard can access and
work with Mr Senio.
- I reiterate what other learned judges have said about the need for deterrence. A custodial sentence is most appropriate to be imposed
to denounce such offending; to deter others from committing the same or similar offence and to protect the wider community from the
potential harm of drug offences.
- “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 relevant facts before determining the most appropriate sentencing
approach to adopt.”[2]
Discussion
- We have seen in the last couple of years the increase number of narcotic raids by the Police where various quantities of marijuana
and methamphetamine are seized. We know from those raids that there is an increase number of users of methamphetamine with the number
of people that have been charged.
- Methamphetamine is a destructive drug, highly addictive with profound mental and physical side effects.[3] In 2009 Samoa’s Parliament increased the penalty for Class A drugs to life imprisonment from 7 years. This indicates the serious
concern Samoa has about the increasing presence of hard drugs in our community. I agree with Nelson J in Police v Tevaga[4] that the Court must soundly discourage such offending and do all that is possible “to stamp out this growing trend before the
problem becomes as entrenched in Samoan society as is the consumption of marijuana.”
- The meth being found in seven zip lock small plastic bags may suggest an intention to sell, deal or supply. However, the accused
could have bought it from somewhere. The accused said in PSR that he and his friends were smoking meth and marijuana prior to being
caught in the police raid of his home. The presence of a glass pipe means that the accused is also a user of methamphetamine well known as “ice.” The accused
confirms in PSR being a user. I accept that the meth and marijuana found were for personal use.
- The sentencing bands in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 applies where the drugs found are for sale and supply and manufacture of Class A narcotics that includes methamphetamine. The sentencing
bands in Fatu were modified by Zhang v R [2019] NZCA 507. Fatu and Zhang sentencing guidelines do not apply to the present case because the narcotics found are for personal use.
- Both the Prosecution and Defence Counsel refer to cases where there was supply and sale of narcotics. Those cases are not relevant
to the present sentencing. The following cases give the range of sentences imposed where the narcotics found were for personal use.
The sentences range from 12 months to 2 years’ imprisonment.
Methamphetamine 0.4g – 16 weeks (4months) imprisonment
Utensils – 8 weeks (2 months) imprisonment
Methamphetamine 0.8g – 1 year + 8 months
Utensils – 3 months
Methamphetamine 2g – 18 months’ imprisonment
Methamphetamine 2g – 2 years’ imprisonment
Methamphetamine 1.8g - $5000 fine and to leave country within 24 hours
Methamphetamine 0.2g – 12 months’ imprisonment
Utensils – 3 years’ imprisonment
Methamphetamine 0.3g – 12 months’ imprisonment
Utensils – 3 months
- Prosecution asks the Court to take the totality approach, with the offence of possession of methamphetamine as the leading offence
with the starting point of 2 years and 8 months with an uplift of 4 months for the accused previous convictions making the starting
point of 3 years.
- A sentence must not be increased merely because an offender has other similar convictions, with the result that he is thereby sentenced
twice for the same offence.[5] It is necessary to take them into consideration because a prisoner’s previous convictions may indicate a predilection to commit the particular type
of offence of which he is convicted, in which case it is the duty of the Court for the protection of the public, to take them into
consideration and lengthen the period of confinement accordingly. There is a predilection with the present accused to again commit similar offending.
- I accept the following to be the aggravating factors of this offending – the quantity of meth found of 2.6g is significant
for a small country like Samoa, the effects of methamphetamine on the community if availability is not curbed and the previous similar
convictions of the accused. The only mitigating factor I find in favour of the accused is his early guilty plea.
- I consider it appropriate to deal with possession of methamphetamine and utensils together separate from possession of marijuana
of loose leaves and branches.
- I sentenced the accused as follows:
(a) Possession of methamphetamine and possession of utensil:
(i) Possession of methamphetamine. The 2 years and 8 months with the uplift of 4 months as starting point is appropriate and give
25% discount for his early guilty plea (9 months). This leaves 2 years’ and 3 months.
(ii) Possession of one (1) glass pipe, a straw, one (1) glass bottle and an electronic scale. A three (3) month imprisonment term
is appropriate.
(b) Possession of marijuana branches and leaves:
(i) For possession of marijuana branches and leaves weighted in total 7.6 grams I take as appropriate starting point of 2 years and
give 25% discount (6 months) for the early guilty plea. This leaves 1 year and 6 months.
- The accused, Junior Pritchard is convicted and sentenced as follows:
- (i) Possession of methamphetamine: 2 years and 3 months’ imprisonment;
- (ii) Possession of one (1) glass pipe, a straw, one (1) glass bottle and an electronic scale: 4 months’ imprisonment;
- (iii) Possession of marijuana branches and leaves: 1 year and 6 months’ imprisonment.
- The sentences are to be served concurrently; less time in custody.
JUSTICE TUATAGALOA
[1] The Salvation Army Addiction Services Alcohol and Drugs Assessment Report for Mr Filifili Junior Pritchard, dated 16 September 2022.
[2] Police v Tauialo [2019] WSSC 68 (29 November 2019)
[3] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72.
[4] Police v Tevaga [2016] WSSC 38
[5] R v Power [1973] 2 NZLR 617 (CA))
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