Police v Mapu [2022] WSSC 56 (10 November 2022)

IN THE SUPREME COURT OF SAMOA
Police v Mapu [2022] WSSC 56 (10 November 2022)

Case name:	Police v Mapu
Citation:	[2022] WSSC 56
Decision date:	10 November 2022
Parties:	POLICE (Prosecution) v DARYL MAPU, male of Nuu Fou (Accused)
Hearing date(s):	27th, 28th, 29th, 30th June, 01st & 07th July 2022
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuala-Warren
On appeal from:
Order:	The accused is convicted of possession of narcotics, namely 1.6g of methamphetamine, and sentenced to 1 year and 6 months imprisonment. For possession of utensils, namely 2 glass pipes, he is convicted and sentenced to 5 months imprisonment to be served concurrently. For possession of unlawful weapons, namely one 9mm pistol, one 22 pistol semi automatic, and one 357 magnum pistol revolver he is convicted and sentenced to 9 months imprisonment to be served concurrently. For possession of unregistered firearms, namely one 12 gauge shotgun break single action barrel and one 22 rifle semi-automatic he is convicted and sentenced to 3 months imprisonment to be served concurrently. For possession of unlawful ammunitions, namely twenty three live rounds 9mm, he is convicted and sentenced to 9 months imprisonment to be served concurrently. Finally for possession of ammunitions without permit, namely four 22 live rounds calibre without permit, he is convicted and sentenced to 3 months imprisonment to be served concurrently. Any time spent in custody is to be deducted.
Representation:	I. Atoa for Prosecution L. Su’a for the Accused
Catchwords:	Possession of narcotics – possession of utensils – possession of unlawful weapons – possession of unregistered firearms – possession of ammunitions – Class A narcotics – glass pipes – methamphetamine – “ice” – village penalty imposed & paid – custodial sentence.
Words and phrases:
Legislation cited:	Arms Ordinance 1960, ss. 7; 9; 12; Crimes Act 2013, ss. 33; Narcotics Act 1967, ss. 7(1)(a); 13(b); 18(a).
Cases cited:	Police v Afamasaga; Police v Aloese [2021] WSSC 14; Police v Fialelei [2018] WSSC 102; Police v Kamisi [2018] WSSC 73; Police v Palu [2021] WSSC 82; Police v Patau [2013] WSSC 120; Police v Roache [2021] WSSC 16; Police v Scott Barlow (Unreported 13 January 2014 per Slicer J); Police v Tevaga [2016] WSSC 38; Police v Williams [2014] WSSC 153; Police v Webber [2016] WSSC 37; R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

DARYL MAPU, male of Nuu Fou

Accused

Counsel: I. Atoa for Prosecution
L. Su’a-Mailo for the Accused

Date: 10 November 2022

SENTENCE OF TUALA-WARREN J

The Charges

1. On 2 September 2022, after a defended hearing, I found the accused guilty of;
   • (a) Possession of narcotics, namely 5 clear sealed plastic bags containing methamphetamine weighing 1.6 grams; (Narcotics Act 1967 section 7(1)(a) and 18(a), & Crimes Act 2013 section 33-maximum penalty of life imprisonment);
   • (b) Possession of utensils, namely 2 glass pipes for the purpose of committing an offence against the Act; (Narcotics Act 1967 section 13(b) & Crimes Act 2013 section 33-maximum penalty of 7 years imprisonment);
   • (c) Possession of unlawful weapons, namely one 9mm pistol, one 22 pistol semi automatic, one 357 magnum pistol revolver not being authorised by the Minister of Police; (Arms Ordinance 1960 section 12 & Crimes Act 2013 section 33-maximum penalty of 5 years imprisonment or a fine of 100 penalty units or both);
   • (d) Possession of unregistered firearms, namely one 12 gauge shotgun break single action barrel and one 22 rifle semi-automatic without valid certificate of registration; (Arms Ordinance 1960 section 9 & Crimes Act 2013 section 33-maximum penalty of 2 years imprisonment or a fine of 50 penalty units or both);
   • (e) Possession of unlawful ammunitions, namely twenty three live rounds 9mm; (Arms Ordinance section 12 & Crimes Act 2013 section 33-maximum penalty of 5 years imprisonment or a fine of 100 penalty units or both); and
   • (f) Possession of ammunitions without permit, namely four 22 live rounds calibre without permit. (Arms Ordinance section 7 & Crimes Act 2013 section 33-maximum penalty of 2 years imprisonment or a fine of 20 penalty units or both).

The offending

2. According to the evidence, during a police search on 28 December 2021, the police found in an upstairs bedroom of the accused’s home, 2 glass pipes, one 9mm pistol, one 22 pistol semi automatic, one 357 magnum pistol revolver, one 12 gauge shotgun break single action barrel, one 22 rifle semi-automatic, twenty three live rounds 9mm and four 22 live rounds calibre.
3. In one of the pockets of the shorts worn by the accused, Police found a small bag containing 5 plastic bags of white substance, confirmed by SROS to be methamphetamine. The quantity of methamphetamine in the 5 packets was 1.6 grams in total.

The accused

4. The accused is 39 years old. He is married with 2 children. He had been Assistant Electoral Commissioner (“AEO”) with the Office of the Electoral Commissioner (“OEC”) until he was suspended for this matter. He now relies on his wife’s employment with the National University of Samoa.
5. He is well educated and is a University graduate who worked his way from being an officer in OEC to now being the AEC. The former Electoral Commissioner wrote that the accused would have been the next Electoral Commissioner based on his knowledge and practical experience.
6. His wife told Probation that the accused is hard working and they depended on his salary for their children’s education, to pay their mortgage and for the many family obligations. She says he is active in their village and church activities. His mother has written in support saying that he is a helpful and loving son. She confirms that village penalty.
7. His Pulenuu and religious leader have written in support of him. His Pulenuu confirms the village penalty that was paid by the accused.
8. Affidavits from the accused himself, his older sister, his brother in law, a cousin, former co-worker and his religious leader have been submitted in support of the accused. All speak of this offending being out of character and all are willing to help the accused if he is given a non-custodial sentence.
9. The accused is adamant that he is innocent and has told Probation that he is filing an appeal.

Aggravating features of the offending

10. It is aggravating that both a Class A narcotic and firearms were found in the home of the accused which he shares with his wife and two children. The combination of those items in a family home is aggravating.
11. The existence of glass pipes leads me to infer that he is a user. This drug commonly known as ‘ice’ which was found on him is highly addictive and destructive.
12. The quantity of methamphetamine found on the accused was not insignificant.
13. The increasing prevalence of this drug in Samoa. The impact on society cannot be understated. In a recent interview by the Deputy Police Commissioner published in the Samoa Observer, dated 8 November 2022, she said “The methamphetamine scourge has been plaguing many Pacific nations and Samoa is no exception”.
14. Finally I find it aggravating that he is a Senior public servant, that position entails one of service to the community, and the community has a legitimate expectation that public servants are not involved in drugs and firearms.

Mitigating factors

15. I take into account his personal circumstances, having a family who will now be severely affected by this sentence, and the character testimonials in his favour.
16. I take into account the village penalty which he paid.
17. I also take into account his contribution to society through his work with the Electoral Commission which demonstrates his previous good character.

Discussion

18. Prosecution recommends a starting point of 3 years imprisonment.
19. Defence submits that a fine in conjunction with community detention as per section 34 of the Sentencing Act 2016 is an appropriate sentence. They rely on the case of Police v Afamasaga. In that case the Court was dealing with a non resident citizen who committed a crime in Samoa. Justice Nelson said in that case;
    • Fourthly and of particular importance in this case is the fact that this defendant is a citizen resident out of jurisdiction. He does not normally live in Samoa. I am of the view that the less exposure this country including its prison population has to such people, the better.
20. No doubt that is the main distinguishing feature of that case whereby the accused was fined, ordered to come up for sentence in 12 months and according to Justice Nelson;
    • The second condition of the order up for sentence is that within 24 hours you are to leave Samoa and remain away for the period of the order.
21. The sentence in Police v Afamasaga turned on its own unique circumstances, which with respect, are not found in this case.
22. Previous sentencing decisions for possession of methamphetamine in Samoa can be seen below;

Police v Patau [2013] WSSC 120	60.15 grams	Starting point, 5 years imprisonment.
Police v Williams [2014] WSSC153	0.2 grams	Starting point of 2 years imprisonment.
Police v Scott Barlow (Unreported 13 January 2014 per Slicer J)	14.38 grams	End sentence, 18 months.
Police v Webber [2016] WSSC 37	26.1 grams	Starting point, 8 ½ years’ imprisonment.
Police v Tevaga [2016] WSSC 38	3.2 grams	Starting point of 2 years
Police v Fialelei [2018] WSSC 102 (7 Sept 2018)	0.4g Utensils	16 weeks (4months) imprisonment 8 weeks (2 months) imprisonment
Police v Kamisi [2018] WSSC 73 (11 May 2018)	0.8g Utensils	1 year + 8 months 3 months
Police v Aloese [2021] WSSC 14 (31 March 2021)	2g	18 months’ imprisonment
Police v Roache [2021] WSSC 16 (6 April 2021)	2g	2 years’ imprisonment
Police v Palu [2021] WSSC 82 (10 Nov 2021)	0.3g Utensils	12 months’ imprisonment 3 months

23. It is evident from these cases that custodial sentences are the norm when dealing with class A narcotics, regardless of the quantity, given its penalty of life imprisonment and in an effort to stop the influx of this dangerous narcotic into Samoa.
24. In New Zealand where methamphetamine has become prevalent, the Crown position in the Court of Appeal case of R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72, is particularly noteworthy;
    • Methamphetamine is a particularly destructive drug for users; it is highly addictive with profound mental and physical side effects. It induces aggressive and irrational behaviour, 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 organised crime is heavily involved.
25. Sentiments have been expressed by my fellow judges about the undesirability of these hard drugs in Samoa. In 2014 in the case of Police v Williams, Nelson J stated;
    • Parliament recently increased the term to life imprisonment as an indication of its serious concern about the increasing presence of hard drugs in our community. Indeed the Courts have seen over the years how hard drugs such as ice slowly infiltrating the drug community in this country. The consumption of illegal narcotics is of course also a social problem. The Courts play a role in trying to reduce the problem by imposing deterrent sentences of imprisonment of offenders... But the courts cannot alone solve the problem. The community must also play its part. And the message that the court tries to send the community all the time is involvement in drugs can lead to ruination of good lives and to terms in prison.
26. As recent as 2016, Nelson J in Police v Tevaga stated:
    • 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 as entrenched in Samoan society as is the use and consumption of marijuana.
27. I echo these sentiments and am in full agreement that the deterrent force is found in sentences of this Court. Deterrence is of paramount importance in this case, to deter the accused from future drug offending, and to deter other persons from committing similar offences. To that end, the sentence for the accused today will be custodial. Such a sentence holds him accountable, promotes in him a sense of responsibility, protects the community and denounces his conduct.
28. The Court of Appeal in R v Fatu set out three sets of guidelines for sentencing. The first for offending involving the supply of methamphetamine, the second for offending involving the importation of methamphetamine and the third for offending involving the manufacture of methamphetamine. For the purposes of this sentencing, I take heed of R v Fatu but note that in the case before me now, the accused was not charged with supply, importation or manufacture. Therefore R v Fatu is of limited use.

Sentence

29. Having regard to the aggravating features of the offending, I take 3 years imprisonment as a starting point for sentence for possession of narcotics. I deduct 6 months for his personal circumstances, 6 months for his village penalty and for his contribution to society I deduct 6 months.
30. The accused is convicted of possession of narcotics, namely 1.6g of methamphetamine, and sentenced to 1 year and 6 months imprisonment.
31. For possession of utensils, namely 2 glass pipes, he is convicted and sentenced to 5 months imprisonment to be served concurrently.
32. For possession of unlawful weapons, namely one 9mm pistol, one 22 pistol semi automatic, and one 357 magnum pistol revolver he is convicted and sentenced to 9 months imprisonment to be served concurrently.
33. For possession of unregistered firearms, namely one 12 gauge shotgun break single action barrel and one 22 rifle semi-automatic he is convicted and sentenced to 3 months imprisonment to be served concurrently.
34. For possession of unlawful ammunitions, namely twenty three live rounds 9mm, he is convicted and sentenced to 9 months imprisonment to be served concurrently.
35. Finally for possession of ammunitions without permit, namely four 22 live rounds calibre without permit, he is convicted and sentenced to 3 months imprisonment to be served concurrently.
36. Any time spent in custody is to be deducted.
    

JUSTICE TUALA-WARREN