Police v Webber [2023] WSSC 3 (7 February 2023)

IN THE SUPREME COURT OF SAMOA
Police v Webber [2023] WSSC 3 (07 February 2023)

Case name:	Police v Webber
Citation:	[2023] WSSC 3
Decision date:	07 February 2023
Parties:	POLICE (Prosecution) v STUART FRANCIS DANIEL ROBERT HUGH WEBBER a.k.a Y-DEE, of Lotopa and Vailoa Faleata (Accused).
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	You are accordingly convicted and sentenced as follows: (a) Possession of methamphetamine on a totality basis, convicted and sentenced to 16 months imprisonment, less remand in custody; (b) Possession of utensil – convicted and sentenced to 3 months imprisonment, to be served concurrently; and (c) Possession of narcotics, namely cannabis substances, 3 months’ imprisonment to be served concurrently. On your release Stuart, I urge you to seek out further drug rehabilitation programs as you have so earnestly told the Court you wish to undertake so as to assist with your rehabilitation and to turn your life around.
Representation:	F. Ioane for Prosecution I. Sapolu for the Accused
Catchwords:	Possession – methamphetamine - cannabis substances – Possession of utensil – glass pipe – custodial sentence.
Words and phrases:
Legislation cited:	Narcotics Act 1967, Sentencing Act 2016, section. 7(1)(j).
Cases cited:	Police v Afamasaga [2018] WSSC 118; Police v Aloese [2021] WSSC 14; Police v Barlow [2017] WSSC 163; Police v Fialelei [2018] WSSC 102; Police v Kamisi [2018] WSSC 73; Police v Mapu [2021] WSSC 38; Police v Palu [2021] WSSC 82; Police v Pritchard [2022] WSSC 56; Police v Roache [2021] WSSC 16; Police v Tevaga [2016] WSSC 38; Police v Webber [2016] WSSC 37; Police v Williams [2014] WSSC 153; R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72; R v Fatu [2005] NZCA 278.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

STUART FRANCIS DANIEL ROBERT HUGH WEBBER a.k.a Y-DEE of Lotopa and Vailoa Faleata

Accused

Counsel: F. Ioane for Prosecution
I. Sapolu for Accused

Decision: 7 February 2023

SENTENCE

1. Stuart Webber, you appear for sentence on one charge of possession of 5.14 grams of methamphetamines which carries a maximum penalty of up to life imprisonment. You also appear for sentence on one charge of possession of cannabis substances weighing 1.68 grams and possession of a utensil, namely one glass pipe for the purpose of committing an offence against the Narcotics Act 1967.

The Offending:

2. Through your counsel, you have accepted the Summary of Facts, as amended. On the 9^th June 2022, Police executed a search warrant on your vehicle at a car wash in Lotopa. In the course of the execution of the search warrant, a black bag in your possession was searched. In the bag, Police found:
   • (i) nine (9) zip lock plastic bags containing methamphetamine weighing 5.14 grams;
   • (ii) loose marijuana leaves weighing 1.68 grams, yielding the equivalent of three (3) marijuana cigarettes;
   • (iii) half a marijuana cigarette weighing 0.17 grams;
   • (iv) one (1) clear glass pipe; and
   • (v) cash amounting to $8,875.40.

The Accused:

3. You are a 51 year old male of Lotopa and Vailoa Faleata. You have been in a de-facto relationship with your partner. You have been raising your children together with her since your release from prison in February 2021. You have a new daughter born in July 2022. Since your release from prison, you had been working on your music career to support your family.

Aggravating factors:

4. The aggravating features of your offending are (a) the prevalence of narcotics offending; (b) the quantity of methamphetamine in your possession together with marijuana and a utensil (c) premeditation and (d) your prior conviction for similar offending.
5. While Prosecution originally submitted that your possession of the drugs was for a commercial purpose, that submission was later appropriately withdrawn by Prosecution.

Mitigating Factors

6. The mitigation features personal to you is your early guilty plea; remorse and assistance to authorities.

Discussion:

7. As has often been said in earlier cases, illicit narcotics is recognized as a scourge in many societies and Samoa is becoming no exception (Police v Tevaga [2016] WSSC 38 (21 March 2016); Police v Kamisi [2018] WSSC 73. In Police v Barlow [2017] WSSC 163 (28 November 2017), Tuala-Warren J citing from the R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 addressed the destructive nature of methamphetamine on society and users stating as follows:
   • “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.”
8. You were previously sentenced in 2016 for similar offending involving the possession of narcotics (methamphetamine amongst other drugs) on the basis of commercial sale (See: Police v Webber [2016] WSSC 37 (18 March 2016)). Although Prosecution has appropriately withdrawn their submission that you possessed the methamphetamine for a commercial purpose, the methamphetamine was found in nine (9) zip lock bags, often indicative of commercial sale. While this gives rise to a suspicion that you may have been involved in the commercial sale of methamphetamine, you may well have purchased the methamphetamine that way. I therefore sentence you on the basis that your possession of the narcotics was for personal use.
9. According to your Pre-Sentence Report Stuart, you were only released from prison in February 2021 after serving five (5) years in prison. In less than 18 months from your release, you returned to serious drugs and returned to your old ways that led you to prison in 2016. In the event that there is some doubt in your mind that somehow you can continue with drugs and escape detection and punishment, I hope that this experience answers that question for you.
10. In saying this, I have read carefully your Pre-Sentence Report and the material that has been placed before me. You have a new partner and child and other children who are close to you and for whom you love and care for deeply. You have expressed in clear terms your desire to be with your family and to support them. I encourage you to use that to drive you to change your life so that you no longer have to appear before the Courts, be imprisoned and taken from your family. Only you can ultimately make that happen, but there are support services through the Salvation Army Programs delivered through the prison to help you achieve this.
11. Methamphetamines are a highly addictive drug that is very dangerous and destructive to users. In all but one case of methamphetamine possession that has come before Samoan Courts, even for small amounts, a deterrent sentence involving imprisonment has been imposed. That is to deter not only Defendants from future involvement with illegal narcotics but also to send a clear message to others that if you involve yourself with ‘ice’, you will most likely be imprisoned. For you or anyone else so foolish to either deal in this drug or become a user, this drug will destroy your life either through addiction; the very serious adverse health effects of methamphetamine; death and/or imprisonment. There is no good ending for those who involve themselves with these drugs.
12. The sentencing guidelines in R v Fatu [2005] NZCA 278 which has been applied in Samoa does not apply as your possession of narcotics was not with commercial intent. Relevant cases with sentencing start points and end points for narcotics offending involving methamphetamine possession for personal use include:

Case	Narcotics and Weights	Sentence
Police v Williams [2014] WSSC 153 (14 July 2014)	0.2 grams of methamphetamine 0.2 grams of methamphetamine 11 methamphetamine pipes or drug paraphernalia	12 months imprisonment 5 years imprisonment 3 years imprisonment
Police v Kamisi [2018] WSSC 73 (11 May 2018)	0.8 grams of methamphetamines 1 branch marijuana (1 gram) 44 seeds of marijuana utensils	Methamphetamine totality basis: 2 year start point for sentence with end sentence of 1 year 8 months for guilty plea. Utensils: 3 months
Police Fialelei [2018] WSSC 102 (7 September 2018)	0.4 grams methamphetamines Utensils	Methamphetamine: 34 weeks sentence start point and end sentence of 16 weeks Utensils: 8 weeks imprisonment
Police v Afamasaga [2018] WSSC 118 (28 November 2018)	1.8 grams of methamphetamine 0.9 grams loose leaf marijuana	$5,000.00 fine and to leave country within 24 hours $500.00 fine Court took into account other factors such as remand in custody for about 2 months and residence in USA.
Police v Aloese [2021] WSSC 14 (31 March 2021)	2 grams of methamphetamine Marijuana utensils	Methamphetamine: 2 years sentence start point and end sentence of 18 months imprisonment Marijuana: 18 months Utensils: 3 years
Police v Roache [2021] WSSC 16 (6 April 2021)	2 grams methamphetamines marijuana	Methamphetamines: 2 years start point and end sentence Marijuana: 6 months cumulative
Police v Palu [2021] WSSC 82 (10 November 2021)	Methamphetamine weighing 0.3 grams 40 marijuana cigarettes, 1 marijuana branch weighing 0.93 grams 2 glass pipes ammunition	Methamphetamine: 2 years start point totality and end sentence of 12 months imprisonment Narcotics: 6 months Utensils: 3 months
Police v Mapu [2022] WSSC 38 (10 November 2022)	Methamphetamine weighing 1.6 grams Utensils (2 glass pipes) Ammunition	Methamphetamine: 3 years sentence start point with end sentence of 1 year 6 months Utensils: 5 months imprisonment
Police v Pritchard [2022] WSSC 56 (10 November 2022)	Methamphetamine: 2.6 grams Marijuana weighing 7.6 grams 2 glass pipes ammunition	Methamphetamine: 2 years 8 months start point plus 4 month uplift for prior convictions for possession of utensil and armed dangerous weapon. End sentence of 2 years 3 months Utensils: 4 months imprisonment Marijuana 1 year 6 months.

13. Prosecution has sought a 4 year start point for sentence. The submission was made by Prosecution on the basis that your possession of narcotics was with a commercial intent. Your counsel has sought leniency and if an imprisonment term is to be imposed, that a 3 year start point is appropriate.
14. In Police v Barlow [2017] WSSC 163 involving possession of 5.9 grams of methamphetamine with commercial intent together with a single glass pipe, the Court adopted a 4 years sentence start point. As I have said, this is not a case of possession for commercial intent. You however were also in possession of a quantity of marijuana and a glass pipe. Having considered the authorities, I have referred to and distinguishing this matter from the application of the sentencing guidelines in R v Fatu (supra), I accept your counsel’s submission that a 3 years point is appropriate. While your counsel submits that no uplift to your sentence should be made on account of your prior convictions, section 7(1)(j) of the Sentencing Act 2016 requires the Court to take your prior convictions into account. Relevantly, your prior conviction for serious narcotics offending included the possession of 26.1 grams of methamphetamine for commercial gain. You were sentenced to 5 years imprisonment, which you served. Within 18 months of your release, you have re-offended. This shows a predilection for this type of offending and that you have not learnt from your earlier sentencing. I increase the start point by 6 months on account of your prior convictions.
15. From this adjusted start point, I deduct 4 months for remorse, 16 months for assistance to authorities and from the balance, 6 months for your guilty plea leaving an end sentence of 16 months imprisonment.

Result:

16. You are accordingly convicted and sentenced as follows:
    • (a) Possession of methamphetamine on a totality basis, convicted and sentenced to 16 months imprisonment, less remand in custody;
    • (b) Possession of utensil – convicted and sentenced to 3 months imprisonment, to be served concurrently; and
    • (c) Possession of narcotics, namely cannabis substances, 3 months imprisonment to be served concurrently.
17. On your release Stuart, I urge you to seek out further drug rehabilitation programs as you have so earnestly told the Court you wish to undertake so as to assist with your rehabilitation and to turn your life around.
    

JUSTICE CLARKE