Police v Tuifao [2023] WSSC 19 (12 May 2023)

IN THE SUPREME COURT OF SAMOA
Police v Tuifao [2023] WSSC 19 (12 May 2023)

Case name:	Police v Tuifao
Citation:	[2023] WSSC 19
Decision date:	12 May 2023
Parties:	POLICE (Prosecution) v ELETISE ULIMA a.k.a TISE TONY TUIFAO, male of Tanugamanono (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The accused, Eletise Ulima a.k.a. Tise Toni Tuifao is convicted and sentenced as follows: (i) Possession of methamphetamine: 3 months’ imprisonment; (ii) Possession of one (1) glass pipe: 4 weeks’ imprisonment; The sentences are to be served concurrently; less time in custody.
Representation:	I. Atoa for Prosecution Accused in Person
Catchwords:	Possession of narcotics – methamphetamine – possession of a utensil – glass pipe – custodial sentence.
Words and phrases:
Legislation cited:	Narcotics Act 1967, ss. 7(1)(a); 13(b); 18(a)(a).
Cases cited:	Police v Afamasaga [2018] WSSC 118; 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 Pritchard [2022] WSSC 51; Police v Roache [2021] WSSC 16; Police v Tevaga [2016] WSSC 38; Police v Williams [2014] WSSC 153; 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

A N D:

ELETISE ULIMA a.k.a TISE TONY TUIFAO, male of Tanugamanono.

Accused

Counsel: I. Atoa for Prosecution

Accused in Person

Date: 12 May 2023

SENTENCING OF TUATAGALOA J

The offending

1. According to the summary of facts that was read out and accepted by the accused, the Police on 2^nd February 2022 escorted the accused, Eletise Ulima, to the Police Station in Apia for interrogation of a theft allegation against him. A body search was conducted on the accused and he was found to be in possession of narcotics, namely methamphetamine and a clear glass pipe used to smoke methamphetamine.

The charges

2. The accused, Eletise Ulima, is charged with the following charges under the Narcotics Act 1967:
   • (i) Possession of a Class A narcotic, namely methamphetamine (“ice or meth”) found in one (1) zip lock plastic bag weighing 0.07g pursuant to s.7(1)(a) with a penalty of life imprisonment under s.18(a)(a); and
   • (ii) Possession of one (1) clear glass pipe pursuant to s.13(b) with a penalty of maximum 7 years’ imprisonment or $20,000 fine or both.
3. The accused pleaded guilty and now appears for sentencing.
4. The Pre-Sentence Report (PSR) dated 3^rd May 2023 has the accused conceding to the offending. The accused explained in the PSR that he was given the meth and class pipe by a taxi driver friend in front of the Motootua Hospital to hold on to. Shortly after, a police vehicle pulled up and inside the vehicle was his transgender friend who had lodged a complaint with the police with regards to his missing mobile phone. He was taken to the police station for questioning where he was searched and found with the meth and glass pipe.

The accused

5. According to the PSR the accused is 21 years’ old, in a de-facto relationship with one (1) son. He is self-employed running a ‘milk drink business’ while his wife works as a cleaner at the Motootua Hospital to provide for their family.
6. There are oral testimonies from his maternal aunt and de-facto partner who both who both state positive changes evident in the accused behaviour since the offending where he now spends more time at home with his family and rarely goes out. It is obvious that the accused prior to the offending was hardly home. There is also a written testimonial from the pulenuu of Levi, Saleimoa where the accused hails from to which I place no weight because the accused no longer lives there but resides at Tanugamanono with his de-facto wife at her family.
7. The accused confirms in PSR being a user of methamphetamine.

Discussion

8. Samoa is no longer immune from the methamphetamine epidemic. The country in the last three years has seen an increase in methamphetamine seized by police during their narcotic raids. There has been an increase in the numbers of people appearing before the Court charged with possession of methamphetamine from all walks of life, at all levels in society including public servants. The fear or worry is the easy access of the younger generation to methamphetamine which has now become a reality with the accused at 21 years of age admitting in PSR to being a user of both methamphetamine and marijuana starting from 2020.
9. Methamphetamine is a destructive drug, highly addictive with profound mental and physical side effects.^[1] 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 reiterate what other learned judges have said that the court must stand firm and take a stance against such offending and do all that is possible to stamp it out before it becomes too entrenched in our society as that of marijuana.^[2]
10. To reflect the seriousness with which the court regards possession of methamphetamine a custodial sentence is most appropriate notwithstanding that the quantity found is small and was for personal. To impose a custodial sentence would 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 especially methamphetamine.
11. 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’ + months’ imprisonment.
    • Police v Williams [2014] WSSC 153 (14 July 2014)

Methamphetamine 0.2g – 12 months’ imprisonment

Utensils – 3 years’ imprisonment

• Police v Tevaga [2016] WSSC 38 (21 March 2016)

Methamphetamine 3.2g – 12 months’ imprisonment

• Police v Fialelei [2018] WSSC 102 (7 Sept 2018)

Methamphetamine 0.4g – 16 weeks (4months) imprisonment

Utensils – 8 weeks (2 months) imprisonment

• Police v Kamisi [2018] WSSC 73 (11 May 2018)

Methamphetamine 0.8g – 1 year + 8 months

Utensils – 3 months

• Police v Afamasaga [2018] WSSC 118 (28 Nov 2018)

Methamphetamine 1.8g - $5000 fine and to leave country within 24 hours

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

Methamphetamine 2g – 18 months’ imprisonment

• Police v Roache [2021] WSSC 16 (6 April 2021)

Methamphetamine 2g – 2 years’ imprisonment

• Police v Palu [2021] WSSC 82 (10 Nov 2021)

Methamphetamine 0.3g – 12 months’ imprisonment

Utensils – 3 months

• Police v Pritchard [2022] WSSC 51 (14 October 2022)

Methamphetamine 2.6g – 2years + 3 months

12. The methamphetamine found in possession of the accused weighs 0.07grams. The only aggravating feature of this offending is the narcotics found is classified as Class A automatically attracting maximum life imprisonment. I accept the following as mitigating factors personal to the offender – early guilty plea, first offender status and his young age.
13. The prosecution recommends an imprisonment term of four weeks. I disagree. A starting point of 12 months’ imprisonment is appropriate and deduct 8 months for his offender status and young age. This leaves 4 months’, to which I give 25% discount for his early guilty plea amounting to 1 month. The end sentence is 3 months.

Sentence

14. The accused, Eletise Ulima a.k.a. Tise Toni Tuifao is convicted and sentenced as follows:
    • (i) Possession of methamphetamine: 3 months’ imprisonment;
    • (ii) Possession of one (1) glass pipe: 4 weeks’ imprisonment.
15. The sentences are to be served concurrently; less time in custody.

JUSTICE TUATAGALOA

NB: I am aware that the Salvation Army runs alcohol and drugs programmes at the Prisons that Mr Pritchard can access and work with Mr Senio.

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^[1] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72.
^[2] Police v Tevaga [2016] WSSC 38, per Nelson J