Police v Ah Kuoi [2024] WSSC 102 (19 November 2024)

IN THE SUPREME COURT OF SAMOA
Police v Ah Kuoi [2024] WSSC 102 (19 November 2024)

Case name:	Police v Ah Kuoi
Citation:	[2024] WSSC 102
Decision date:	19 November 2024
Parties:	POLICE (Informant) v NICKY AH KUOI, male of Talimatau, Sapapalii & Tulaele (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	So the result of the sentencing today Nicky is therefore you are convicted and sentenced as follows, less the time you have been remanded in custody: (i) In respect of Charge 2 of the charging document dated 29/07/24, possession of methamphetamine (0.55 grams) – 15 months’ imprisonment; (ii) Charge 1, possession of methamphetamine (0.24 grams) – 12 months’ imprisonment, concurrent; (iii) In respect of possession of utensils you are convicted and sentenced to 6 months’ imprisonment, concurrent; (iv) Add on both charges of possession of marijuana – 3 months’ imprisonment, concurrent. So in all you will serve 15 months imprisonment, less the time you have already spent in custody.
Representation:	M. T. Fesili for Prosecution Accused appears in Person
Catchwords:	Possession of methamphetamine – possession of marijuana – possession of utensils
Words and phrases:	“discovered upon execution of police raid”
Legislation cited:
Cases cited:	Police v Ah Kuoi [1998] WSSC 41 (3 November 1998); Police v Kamisi [2018] WSSC 73 (11 May 2018); Police v Webber [2023] WSSC 3 (7 February 2023).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

NICKY AH KUOI, male of Talimatau, Sapapalii & Tulaele

Accused

Counsel: M.T. Fesili for Prosecution

Accused appears in Person

Sentence: 19 November 2024

O R A L S E N T E N C E

The Charges

1. Nicky, you appear for sentence on charges of possession of methamphetamine, also known as “ice” and marijuana and the possession of utensils, namely four clear glass pipes, one scale, one white straw and one gas bottle with a tube and a mouthpiece.

The Offending

2. Now, according to the Prosecution summary of facts dated 19 September 2024 which you have accepted, it was on Wednesday 3 July 2024 at 6.00am that police executed a search warrant at the house of Safa'i Lelei, also known as “Cash” at Vaitele-fou.
3. Before the police entered the premises, the Tactical Operations Squad had arrived and secured the residence which was occupied by yourself as well as Safa'i Lelei, Molly Brown and Safa'i Lelei’s father. The Senior Sergeant who was involved in the execution of the search warrant informed all occupants of the premises of the search warrant on the house belonging to Safa'i Lelei. Safa'i Lelei is your first cousin.
4. Now, during the search of the first house on that property, police found a package stuck underneath the iron roof which contained loose marijuana leaves. The search then continued on to a second house which included a mechanic workshop and the room on the upper level of that building. During the search of the workshop, police found one large clear pipe stuck in the metal post. The police also found one broken clear pipe near the stairs on the way up to the second level of the house. Upon entering the only room on the upper level of that building, the police also found one gas bottle fitted with a tube and mouthpiece that can be used to smoke ice.
5. During the conduct of the search warrant, the police also employed a sniffer dog. During the search of the upper room, the dog responded when passing the bed on that upper floor. In there, the police found a further glass pipe on a chair in the upper room. Next to the bed and the closet in the room, police found the fourth clear glass pipe. The police also found under the mattress a small bum bag which contained two small plastic bag which substances were contained in that bag believed to be methamphetamine.
6. Police then conducted a search of a vehicle which was parked in front of the first house belonging to your co-accused. Inside that vehicle police found underneath the car radio compartment a plastic bag which contained a white straw used for smoking methamphetamine; in the trunk of that car police also found a small bag which contained one scale and many plastic bags. You explained to the Probation Service Nicky that the narcotics were offered to you by strangers in exchange for your services.

The Accused

7. Now just turning to your background Nicky you are a 47 year old male from Talimatau, Sapapalii and Tulaele. According to your pre-sentence report you are the eldest of five children and are the father of some seven or more children and completed tertiary education at the Samoa Polytechnic where you studied engineering.
8. You have previously worked with Asco and have your own mechanic business. You told Probation Services you have been a user of ice for some 16 years now. You’ve confirmed your prior conviction record for manslaughter in 1998 where it says you were imprisoned for four months as well as obtaining by deception in 2006 where a fine was imposed. The police prior conviction record shows you were imprisoned for four months in 1998 however is incorrect. The decision of the former Chief Justice Sapolu shows that you were imprisoned for four years.^[1] Incorrect prior conviction records are increasingly common from police. Greater care is needed by police to ensure that the prior conviction records brought before the Court are complete and correct.

Aggravating features

9. I now turn to the aggravating features of the offending. The aggravating features of the offending is:
   • (i) Prevalence of methamphetamine and narcotics offending in Samoa and methamphetamine being a Class A narcotic;
   • (ii) The quantity of utensils in your possession.
10. Although you have a prior conviction for manslaughter as well as obtaining by deception, they were for different types of offences and the manslaughter conviction was entered over 20 years ago. I will not uplift your sentence for those prior convictions. However, you will not get a deduction for prior good character because you have those prior convictions on your record.

Mitigating factors

11. In terms of the mitigating factors Nicky I take into account they are the following:
    • (i) You are genuinely remorseful for your offending;
    • (ii) Your personal circumstances. You are the breadwinner for the family and you have young children;
    • (iii) Your early guilty plea.

Discussion

12. Nicky, you told the Probation Service that you have been using ice for 16 years now. In Police v Webber^[2] a warning at paragraph [11] was issued as follows:
    • “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.”
13. I had asked you whether you were familiar with the general sentencing approach of the Courts for methamphetamine offending that for most part custodial sentences are imposed by the Court. You responded that you were not so aware. Being an admitted ice user for some 16 years, I have my serious doubts that what you said is correct. It should be abundantly clear now to the public that generally anyone involved in ice, even for small amounts, will likely face a custodial sentence. Less than a handful of the many methamphetamine cases that have come before the Court in Samoa have not been sent to prison. Most end up in prison.
14. Although you had possession of a scale, often a hallmark of a dealer, you are today being sentenced as a user as submitted by Prosecution. I have considered the authorities referred to me, I have also had particular regard to Police v Kamisi^[3] which is similar to this case of yours, Nicky, involving 0.3 grams of methamphetamine where a two year starting point for sentence was adopted.
15. Nicky I accept the Prosecution submissions of a two year sentence start point. From that start point I deduct four months for your remorse and personal circumstances; and five months for your early guilty plea leaving an end sentence of 15 months’ imprisonment on a totality basis.

Result

16. So the result of the sentencing today Nicky is therefore you are convicted and sentenced as follows, less the time you have been remanded in custody:
    • (i) In respect of Charge 2 of the charging document dated 29/07/24, possession of methamphetamine (0.55 grams) – 15 months’ imprisonment;
    • (ii) Charge 1, possession of methamphetamine (0.24 grams) – 12 months’ imprisonment, concurrent;
    • (iii) In respect of possession of utensils you are convicted and sentenced to 6 months’ imprisonment, concurrent;
    • (iv) Add on both charges of possession of marijuana – 3 months’ imprisonment, concurrent.
17. So in all you will serve 15 months imprisonment, less the time you have already spent in custody.
18. Nicky I hope when you complete your sentence and you come out from prison you do not reoffend. From everything that I have read and your skills as a mechanic, you have the potential to have a very bright future and a successful business. Your life is truly wasted Nicky inside prison. When you are released from prison and if you should so wish, you should speak to Probation Service or the Salvation Army to help you with the problem you have with drugs. Nicky I do wish you the best once you are out and I sincerely hope you do not come to Court again.

JUSTICE CLARKE

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^[1] Police v Ah Kuoi [1998] WSSC 41 (3 November 1998).

^[2] Police v Webber [2023] WSSC 3 (7 February 2023).

^[3] Police v Kamisi [2018] WSSC 73 (11 May 2018).