Attorney General v Sefululua [2024] WSSC 41 (27 June 2024)

IN THE SUPREME COURT OF SAMOA
Attorney General v Sefululua [2024] WSSC 41 (27 June 2024)

Case name:	Attorney General v Sefululua
Citation:	[2024] WSSC 41
Decision date:	27 June 2024
Parties:	ATTORNEY GENERAL (Appellant) v PU’ELEO SEFULULUA a.k.a PU’ELEO JUNIOR SEFULULUA (Respondent)
Hearing date(s):
File number(s):	S736/22
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Perese
On appeal from:	District Court of Samoa, Mulinuu
Order:
Representation:	Lupematasila I. Atoa for the Appellant L. T. Sio-Ofoia for the Respondent
Catchwords:	Leave for appeal – customs officer – importation of prohibited goods – appealing sentence.
Words and phrases:
Legislation cited:	Criminal Procedure Act 2016, ss. 147; 154(2)(c); Customs Act 2014, s. 249(1)(a).
Cases cited:	Attorney General v Siaosi Lua [2016] WSCA 1; Police v Pueleo Junior Sefululua [2023] WSDC (Unreported, 23 November 2023).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

ATTORNEY GENERAL

Appellant

A N D:

PU’ELEO SEFULULUA a.k.a PU’ELEO JUNIOR SEFULULUA

Respondent

Court: Honourable Chief Justice Perese

Counsel: Lupematasila I. Atoa for the Appellant
L. T. Sio-Ofoia for the Respondent

MINUTE OF PERESE CHIEF JUSTICE DATE 27 JUNE 2024

1. This is an Attorney General’s appeal under s. 147 of the Criminal Procedure Act 2016 (“CPA”), challenging a sentence of the District Court of 9 February 2024. The appeal, which relies on s. 154(2)(c) CPA enables this court to quash the District Court decision, substitute or vary a sentence which is clearly excessive or, as is claimed in this case, inadequate or inappropriate.
2. The defendant was charged with one offence under s. 249(1)(a) Customs Act 2014 (“CA”). His Honour District Court Judge Loau D. A. Kerslake in Police v Pueleo Junior Sefululua [2023] WSDC (Unreported, 23 November 2023) found that police proved beyond reasonable doubt the defendant was the consignee of a bin in which prohibited goods were found, namely, two packets of the narcotic methamphetamine with a total weight of 904.2 grams. The learned judge convicted the defendant of the two counts and fined him SAT$1,500 on each count. The fines were payable within 14 days, in default of which the defendant was sentenced to 6 months’ imprisonment.
3. There are two parts of the appellant’s appeal:
   • (a) Whether the appellant should be granted leave to appeal given that the appeal was filed 9 days out of time?
   • (b) Whether the sentence is inadequate or inappropriate?
4. In relation to whether the sentence is inadequate or inappropriate, in the context of offences under the CA, there is no appellate authority bar one, which provides guidance; I discuss this case shortly. The appellant in this appeal suggests that the sentence is inadequate because the lower court erred:
   • (a) in fact and law in not taking into account or placing sufficient weight on all the relevant aggravating features;
   • (b) in law by failing to determine a starting point;
   • (c) by considering the defendant’s lack of knowledge of the existence of methamphetamine in the consignment as a mitigating factor;
   • (d) in fact and law by failing to take into account the size of the consignment of narcotics, which weighed 904.2 grams.
   • (e) by incorrectly applying the principles of the sentencing that gives paramountcy to denunciation and deterrence in narcotics matters;
   • (f) that accordingly, the sentence was manifestly inadequate or unjust.
5. I have taken the liberty of refining the appellant’s points on appeal, based on my understanding of Ms Atoa’s oral submissions. Respectfully, the appellant’s position might be understood as a challenge to a sentence that should be quashed or set aside because the court failed to give due consideration to the value of the importation, and by wrongly considering the defendant’s lack of knowledge of the narcotics as a mitigating factor. It is in these respects the appellant submits the court failed to adequately sentence the defendant.
6. The appellate authority that provides guidance on the application of appeal provisions such s. 154 (2)(c) is the Court of Appeal decision in Attorney General v Siaosi Lua [2016] WSCA 1. This was a sentencing appeal brought by the Attorney General and is relevant in this case because of the guidance it gives on the meaning of the phrase “inadequate”. Their Honours observed:
   • Firstly, this is an Attorney-General appeal and this Court should only intervene where there is a manifest inadequacy and then only to the extent necessary to address the deficiency.^[1]
   • (Emphasis added)

In other words, the bar for prosecution to reach is that the sentence was not just inadequate, but that it was manifestly inadequate, to justify an intervention by an appellate court. Use of the adverb manifestly means the inadequacy must be clearly obvious.
The respondent’s case

7. The respondent opposes the application for leave to file the appeal out of time. As to the appeal, the respondent supports the sentence.
8. The main points I discern from the respondent pleadings are as follows:
   • (a) The sentencing judge was not bound by the sentencing bands for possession of methamphetamine, or importation under the Narcotics Act 1967;
   • (b) The appellant’s submission of the paramountcy of the principles of denunciation and deterrence are met by the guidance in the Sentencing Act 2016 requiring the court to give the same weight to all of the purposes of sentencing irrespective of their enumeration in s. 5(1).
   • (c) From the hearing, I understood Ms Sio-Ofoia to submit that the level of financial penalties imposed were in line with the cases involving importation of prohibited goods, which His Honour carefully discussed in his judgment.

Analysis

9. Part 14 of the CA creates a range of offences. Division 1 deals with offences in relation to customs officers, property, and systems. Division 2 refers to the powers of customs officers, obligations to comply with the directions given under the Act and to comply with licencing requirements. Division 3, as the Division title expresses, provides for offences in relation to arrival and departure of craft and persons.
10. The offence in this case arises under Division 4 – relating to a range of prohibited activity described under the rubric of “other offences”. These offences range from adapting aircrafts for smuggling, to interference with cargo, unloading goods without authorisation, offences relating to the making or keeping of records required to be kept or made under the CA. Among these offences, mostly punishable by a fine or imprisonment and arguably criminal offences, is s. 249, which creates the offence of importing prohibited goods.
11. A prohibited good is defined in s. 2, which unless the context otherwise requires, means prohibited exports or prohibited imports. Prohibited exports means goods or electronic publications the exportation of which is prohibited, whether conditionally or unconditionally, by or under section 92. Prohibited imports on the other hand is defined as goods or electronic publications the importation of which is prohibited, whether conditionally or unconditionally, by or under section 91.
12. Turning to s. 91, it provides that a prohibited goods for the purposes of the CA are specified in Schedule 1. Schedule 1 is a list of prohibited imports. The first category of prohibited imports refers to:
    • An article the sale of which is Samoa would be an offence against any enactment relating to the sale of food or drugs.
    • (emphasis added)
13. The basis of the prosecution here appears to rely on the inclusion of “drugs” in Sch 1. I am deeply troubled by this submission. The importation was a substantial quantity of methamphetamine which narcotic is primarily regulated by the Narcotics Act 1967 (“NA”). That NA restricts the importation of any prepared opium, or prohibited plant, or narcotic as provided for in the First, Second and Third Schedules (except by licence): see s. 10. Methamphetamine is by the Second Schedule a Class A Narcotic. It is easy enough to see that the Police may wish to prosecute acts of importing narcotics under the CA because under the CA is a strict liability offence, whereas knowledge is an essential ingredient in an importation charge under the NA. My concern is whether the two Acts (the CA and the NA) can be read in tandem in this way. The appreciable risk is of overreach under the CA.
14. The relevant phrase in Sch 1, emphasised earlier, is sale of food or drugs. It is already a criminal offence to sell narcotic drugs under the NA. The word “drugs” as it appears in the CA, seems to refer to drugs in a completely different context than that envisaged in this prosecution. The Drugs Act 1967, one of the Acts amended by s.343 CA, substituted an earlier reference to the Food and Drugs Act 1967. Plainly, the terms of the Drugs Act 1967 do not apply to narcotic drugs. This suggests the word “drug” in the schedule regulates such things as medicines, weight loss pills or other kinds of therapeutic drugs people wish to sell across the counter – not narcotics.
15. I am left in the position in this appeal of being asked to determine the manifest inadequacy of a sentence, brought by the Attorney General, when a conviction may not have been properly entered in the first place. It is an important issue needing resolution for this defendant and the public interest in the meaning of the section and the administration of justice. The court does not have the appellate jurisdiction to look at the conviction issue of its own motion. That is because natural justice requires submissions to be filed and argued on behalf of the Prosecution.
16. I give the respondent the opportunity to consider his position about filing a cross-appeal, one which I can indicate now will be granted leave to file and serve, in the interests of justice.
17. The following timetable is directed:
    • (a) The respondent to file and serve his cross appeal against conviction within 2 weeks of the date of this Minute, if any;
    • (b) The appellant to file and serve any notice of motion of opposition within a further 2 weeks of service of the cross-appeal if any.
    • (c) The respondent is to file submissions in support within a further week of the service of any notice of motion of opposition.
    • (d) The appellant to file submissions in support within a further week of the service of the respondent’s submissions.
    • (e) The registrar to set the matter down for a half day hearing before me.
18. If the respondent does not wish to challenge the conviction, then I require the parties to file submissions addressing the issue of the meaning of schedule 1 of the CA and whether it authorises the prosecution of the defendant.

CHIEF JUSTICE

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^[1] Attorney General v Siaosi Lua [2016] WSCA 1 at para 36.