Police v Palu [2023] WSSC 35 (16 June 2023)

IN THE SUPREME COURT OF SAMOA
Police v Palu & Anor [2023] WSSC 35 (16 June 2023)

Case name:	Police v Palu & Anor
Citation:	WSSC 35
Decision date:	16 June 2023
Parties:	POLICE (Informant) v MALU PALU a.k.a. ALAE PALU male of Saina Faleata, Toamua and Vaitele (First Accused) and FAAMATALA AINUU a.k.a. KAPUANA FAAMATALA KAPUANA AINUU male of Malifa, Fatausi and Leififi (Second Accused)
Hearing date(s):
File number(s):	S866 per Charging Document dated 24/4/23 S865 per Charging Document dated 24/4/23
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	For Malu on the one charge of possession of methamphetamine you are convicted and sentenced to 2 years’ imprisonment. The sentence will be served cumulative to the term you are currently serving. For Faamatala on the charge of possession of a utensil, you are convicted and fined $1,000. You are further ordered to pay prosecution costs of $500. That total sum of $1,500.00 must be paid by 2pm next Friday 23rd June, in default 3 months’ imprisonment
Representation:	A. Uele for Prosecution First Accused in Person S. Ponifasio for Second Accused
Catchwords:	Possession of a utensil – possession of narcotics.
Words and phrases:
Legislation cited:	Narcotics Act 1967, ss.13(b); 7(1)(a); 18.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Informant

A N D

MALU PALU a.k.a. ALAE PALU male of Saina Faleata, Toamua and Vaitele and FAAMATALA AINUU a.k.a. KAPUANA FAAMATALA KAPUANA AINUU male of Malifa, Fatausi and Leififi

Accused

Counsel: A. Uele for the Prosecution

First Accused in person

S. Ponifasio for Second Accused

Sentence: 16 June 2023

SENTENCE OF JUSTICE ROMA

Charges

1. You both appear for sentence on charges arising out of a police search on the 28th July 2022 at Faatoia. For Malu the charge against him is possession of narcotics, the maximum penalty is life imprisonment. For Faamatala the charge you face is possession of a utensil for the purpose of committing an offence. The maximum penalty is seven years’ imprisonment or a fine of $20,000.00 or both. These charges are brought under the Narcotics Act 1967. Initially you denied the charges but on the 24th April 2023, you vacated your not guilty pleas and entered guilty pleas to the charges.

Offending

2. From the police summary which you both accept, on the 28th July 2022 at around 2pm the first defendant Malu went to the house of a co accused named Tupai at Faatoia to buy drugs. Tupai has denied the charges and the hearing of his matter is pending. Malu paid $200 cash and was given methamphetamine weighing 0.252 grams in a clear zip lock plastic bag. Around the same time, police pursuant to a warrant arrived at the premises in search for illegal substances. They found you both inside the house, they informed all occupants as to why they were there and proceeded to conduct the search. They found on Malu a clear zip lock plastic bag containing 0.252 grams of methamphetamine. They also conducted a body search of Faamatala and found inside one of his pockets a glass pipe which he then handed to police. The substances and utensil were confiscated by police.
3. In the pre sentence report Malu admits that he was at Tupai’s house to buy methamphetamine when police raided the place. For Faamatala, you told probation that you went to take an ‘asiga’ to a friend’s parents who were visiting from overseas and staying there. That friend happened to be Tupai’s brother. Not long after you were there, Tupai and his friends arrived and one of them gave you a pipe to hold whilst they were moving furniture. You placed the pipe in your pocket. You then joined Tupai and others inside his house when police arrived. You further told probation that you would normally go and hang out at the same house when you want to get some drugs but not too often.

Aggravating Factors

4. I consider the prevalence of narcotics offending involving methamphetamine. I consider also the quantity of methamphetamine in the case of Malu and his previous convictions for similar offending. According to the presentence report Malu is currently serving a 2 years and 6 months’ sentence for possession of narcotics handed down on the 14th April 2023.

Mitigating Factors

5. I consider your guilty pleas to the charges. I also take into account your personal circumstances. For Malu you are 43 years of age, a single father of 4 children. Your mother Lei’a describes you as a reliable member of your family. She says further that your involvement in drugs is a result of the influence by your peers. I have however read your previous pre sentence reports. They show a consistent pattern of drug offending starting from marijuana and now methamphetamine.
6. For Faamatala you are 39 years of age, married with 4 children. You are the eighth of nine siblings. You have had a reasonably good level of education having graduated from the National University of Samoa with qualifications in radio and electronics and information technology. You have also had the benefit of attending trainings on information technology. You have worked in the IT division of MESC and was a senior IT officer when you resigned in August 2022 not long after this matter came out. You admit in the pre sentence report having been involved in drugs for the past 2 years due to peer pressure. I acknowledge your honesty in that regard. I have read each of the testimonials submitted through probation - by your Church Minister Rev. Latu Latai of the EFKS Church in Apia; your wife Seira and your eldest daughter Judith; your older sister Judith Ainuu Imo; and your former work colleagues Senitima Samau, Muagututia Neru Maualaivao and Leiataualesa Lino Tagiilima. They describe you as a responsible and hard working husband, father and colleague. They speak of your good character and contribution to your family, your previous employer and to the church. Your family were recently successful under the New Zealand Quota Scheme and sees this as the perfect opportunity for a fresh start. You have a conviction for driving under the influence of alcohol in October 2020. You now appear for narcotic offending. I accept that you are remorseful. All these factors are also addressed in the submissions by your counsel.

Discussion

7. The prevalence of narcotic offending involving hard and illicit narcotics continue to climb. The destructive nature of methamphetamine on society is well known. In Police v. Barlow [2017] WSSC 163 and recently in Police v. Webber [2023] WSSC 3 Justices Tuala - Warren and Clarke cite from the New Zealand case of R v. Fatu [2005] NZCA 278; [2006] 2 NZLR 72 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 hard drugs. It has created a thriving industry in which organised crime is heavily involved.”
   • Clarke J further notes in Webber that “in all but one case of methamphetamine possession that has come before the Samoan Courts, even for small amounts, a deterrent sentence involving imprisonment has been imposed. The purpose is to deter defendants from further offending. It is also to send a clear message to others that if you involve yourself with ‘ice’ you will most likely go to prison.”
8. I adopt the same approach an echo the same message in your case. For Malu prosecution recommends a starting point of 2 years. They have also helpfully produced a table of sentencing authorities in their memorandum. The same cases are also referred to in a useful analysis by Clarke J in Webber reproduced hereunder:

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.

9. Looking at the above table I accept that given the quantity of 0.252 grams, 2 years is an appropriate starting point for Malu. I give an uplift of 9 months for your previous convictions. I deduct 9 months for your guilty plea to the charge. The end sentence for Malu is 2 years.
10. In the case of Faamatala prosecution recommend a suspended sentence of 12 months for the one charge of possession of a utensil. But your counsel has filed an application seeking a discharge without conviction under sections 69 & 70 Sentencing Act 2016. The application is opposed by prosecution.
11. The law on discharges without conviction is well settled. The approach is what the Court of Appeal determined in Attorney General v. Ropati [2019] WSCA 2 (15 April 2019) and is referred to by both your counsel and prosecution in their submissions. The Court must:
    • (i) must assess the gravity of the offending having regard to the aggravating and mitigating factors;
    • (ii) identify the direct and indirect consequences of a conviction;
    • (iii) decide whether the consequences of a conviction would be out of all proportion to the gravity of the offending;
    • (iv) exercise a discretion as to whether a discharge should be the outcome.
12. As to the gravity of the offending, this is a serious offence attracting a maximum penalty of 7 years’ imprisonment. I consider the aggravating and mitigating factors that I have referred to earlier. I consider in particular the prevalence of narcotic offending involving methamphetamine. I consider your admission to probation of your recent involvement in drugs and that on occasions you would go to Tupai’s house to hang out and obtain drugs. I consider as relevant also the fact that you were in the company of others including your co-defendant Malu when police conducted its search and methamphetamine was found in the premises. Taking all that into account I find your offending to be at the moderate to high level of offending.
13. As to the consequences of a conviction, counsel argues that a conviction would mean a change in your circumstances which would then require you to advise the New Zealand Immigration Service as it is relevant to your already filed application for residency under New Zealand Quota Scheme. Counsel also suggests that a conviction would have an impact on your future employment prospects. I bear in mind what the Court of Appeal said in Ropati that “it is not the function of the Courts to conceal offending from proper authorities by declining to enter convictions where they would otherwise be appropriate.”
14. I also consider the observations of Asher J in the New Zealand case of Zhang v. Ministry of Economic Development HC Auckland (17/03/11) cited in Police v. Rockliffe [2018] WSSC 122 and referred to in Ms Ponifasio’s submissions.
15. As to whether the consequences of a conviction would be out of all proportion to the gravity of the offending, I have found the gravity of offending to be at a moderate to high level. The recent prevalence of narcotic offending involving methamphetamine in our small community is an important factor. After weighing the consequences of a conviction on you against the proportionality of your offending, I am not satisfied that the consequences of a conviction would be out of all proportion to the gravity of your offending.
16. Given the conclusion I have reached on the proportionality of the consequences of a conviction to the gravity of your offending, I need not consider whether the discretion to discharge should be exercised. I must say nevertheless that in my view to grant a discharge in the circumstances of your offending Faamatala would be sending the wrong message. Your application for a discharge without conviction is denied.

Result

17. For Malu on the one charge of possession of methamphetamine you are convicted and sentenced to 2 years’ imprisonment. The sentence will be served cumulative to the term you are currently serving.
18. For Faamatala on the charge of possession of a utensil, you are convicted and fined $1,000. You are further ordered to pay prosecution costs of $500. That total sum of $1,500.00 must be paid by 2pm next Friday 23rd June, in default 3 months’ imprisonment.

JUSTICE ROMA