Police v Aloese [2024] WSSC 6 (9 February 2024)

IN THE SUPREME COURT OF SAMOA
Police v Aloese [2024] WSSC 6 (9 February 2024)

Case name:	Police v Aloese
Citation:	[2024] WSSC 6
Decision date:	9 February 2024
Parties:	POLICE (Informant) v PITOITUA ALOESE a.k.a TUA ALOESE, male of Faatoia (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL,
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	You are accordingly convicted and sentenced as follows, all sentences to be served concurrently: (a) Possession of 1.31 grams of methamphetamine on a totality basis (charging document 20/03/2023 # 1), two and a half (2½) years imprisonment less time remanded in custody; (b) Possession of 0.18 grams of methamphetamine, eight (8) months imprisonment (charging document 29/08/2023); (c) Possession of narcotics namely loose marijuana leaves weighing 17.67 grams and 2 marijuana cigarettes weighing 0.66 grams (charging document 20/03/2023 # 2), twelve (12) months imprisonment; and (d) Charges S951/22 and S952/22 possession of one (1) marijuana cigarette and one (1) seed, six (6) weeks imprisonment. You will therefore spend two years and a half (2½) in prison less the time you have been remanded in custody for these matters.
Representation:	I. Atoa for Prosecution Accused unrepresented
Catchwords:	Possession of narcotics – recidivist offender – custodial sentence – multiple offences – breach of trust.
Words and phrases:	Offended whilst on weekend release from prison
Legislation cited:	Sentencing Act 2016, ss. 55; 56.
Cases cited:	Mapu v Police [2022] WSSC 56; Police v Barlow [2017] WSSC 163 (28 November 2017); Police v Webber [2023] WSSC 3 (7 February 2023); 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

Informant

AND:

PITOITUA ALOESE a.k.a TUA ALOESE, male of Faatoia

Accused

Counsel: I. Atoa for Prosecution
Accused unrepresented.

Decision: 9 February 2024

SENTENCE

1. Pitoitua, you appear for sentence on a number of narcotics charges. First for offending on the 16^th August 2022 at Apia Police Station, you were found in possession of 0.18 grams of methamphetamine (Charging Document 29 August 2022). Second, that on the 29^th August 2022 at Tanumalala Prison, you were found in possession of 1 marijuana cigarette weighing 0.2 grams (S951/22) and 1 marijuana seed (S952/22). Third, that at Levili on the 9^th March 2023, you were found in possession of 1.31 grams of methamphetamine (Charging Document 20 March 2023 #1) and loose marijuana leaves weighing 17.67 grams and 2 marijuana cigarettes weighing 0.66 grams.

The Offending

2. You have accepted the Consolidated Summary of Facts dated 14 December 2023. On Saturday 13^th August 2022, you had been temporarily released from prison to spend the weekend with your family at Fa’atoia and were to return to prison on Tuesday 16^th August 2022. When you arrived at the Apia Police Station on the Tuesday, Police carried out a body search of prisoners in accordance with standard procedures. Police found in your pocket a clear plastic bag containing 0.18 grams of methamphetamine, otherwise known as “ice”.
3. On the 29^th August 2022, you had been at the Court House attending to a court matter. After your matter, you were transported back to Tanumalala Prison. A body search was conducted. One (1) rolled marijuana cigarette weighing 0.2 grams and 1 marijuana seed were found.
4. Your final set of offending occurred at Levili on the 9^th March 2023. Police had attended a call-out for a reported burglary and recognized you. A warrant of arrest had been issued for you due to your failure to appear for one or two of these matters. You resisted arrest but were subdued. You were found in possession of 1.31 grams of methamphetamine; loose marijuana leaves weighing 17.67 grams and 2 marijuana cigarettes weighing 0.66 grams.

The Accused

5. Pitoitua, you are 48 years old and have a long list of prior convictions starting from 2007, including for narcotics offending first entered in 2014 when you were sentenced to three (3) years imprisonment. In March 2021, you were again convicted of a number of charges including possession of two (2) grams of methamphetamine, marijuana, glass pipes and firearms. You were sentenced to eighteen (18) months imprisonment, from a three (3) year start point. Given your lengthy history of offending, you have a number of Pre-Sentence Reports. In one such report, you claimed to have begun using marijuana in 2006.
6. You told Probation Service that you were raised in Fa’atoia and are the youngest of four (4) children. You left school after year 10. You are separated from your wife and have four (4) children. One of those children is Trevor, who I shall return to shortly.

Aggravating factors

7. Having regard to sections 55 and 56 of the Sentencing Act 2016 and submissions from prosecution, I have determined to consider the totality of your offending and adopt a start point applied to a single lead charge. All remaining charges will then be concurrent sentences.
8. The aggravating features of your offending are (a) the prevalence of narcotics offending in Samoa; (b) the quantity of methamphetamine in your possession together with marijuana; (c) your offending was clearly premeditated; (d) you committed your first offending whilst on weekend release which was a breach of trust vested in you by the prison authorities to not offend whilst on weekend release; (e) your first and second offending occurred whilst you were serving the prison term for similar and dissimilar offending; (f) you attempted to conceal and smuggle the narcotics in your possession into the prison both for the first and second set of offending. That you should try a second time to smuggle narcotics into the prison only some two (2) weeks after the first occasion is particularly aggravating and brazen; (g) your third set of offending occurred while your first and second offending were still pending before the Court.
9. Aggravating features personal to you is your prior convictions for similar offending.

Mitigating Factors

10. The only mitigation features personal to you is your assistance to authorities and your guilty pleas. Although you referred to completing a rehabilitation course, no such confirmation is contained in the PSR.

Discussion

11. Pitoitua, you are a hardened long-term criminal now use to going to prison. For the last ten (10) years, you have wasted a good part of your life in prison. In one of your PSRs, you told the Probation Service that you began using marijuana in 2006. It is no surprise that following your decision to use marijuana, you began appearing before the Courts in 2007.
12. 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.”
13. You have chosen to involve yourself with methamphetamine, a very dangerous and destructive drug that will only continue to ruin your life. It is however particularly sad that the example you have set has also led your son Trevor to the Courts. In your PSR of 6^th October 2022, Trevor states that your involvement with drugs has influenced his life. Not only have you ruined your life but your example is also sadly condemning your son to a revolving door in and out of court and potentially, in and out of prison. I have dealt with Trevor over the years and this type of life for him was not inevitable. He was a bright young person with a lot of promise for the future when I first saw him quite a few years ago. You however have always cast a dark shadow over your son. Although you have spent many years now before the Courts, you seem inclined to continue to offend in total disregard for the law. I can only hope that what I have said to you about your son might encourage you to think beyond yourself and change your ways not just for you but more importantly, for Trevor and your other children. It is never too late to change.
14. Now I turn to your sentencing and the sentence I should impose. Prosecution seeks a five (5) year sentence start point and place weight on the circumstances of your offending and the three (3) incidences involved.
15. In determining the appropriate start point for sentence, I have had regard to the sentencing authorities including Police v Webber [2023] WSSC 3 (7 February 2023) and the authorities cited in the table at paragraph [12] of that decision. In total, you had in your possession 1.49 grams of methamphetamine on two (2) separate occasions. Ordinarily, this quantity of methamphetamine on a single occasion would attract a sentence start point of between two (2) to three (3) years imprisonment.^[1] Methamphetamine however as I have said was found in your possession on two separate occasions and in particularly aggravating circumstances. You also had in your possession marijuana. You were at the time serving a prison term for narcotics and arms possession which included for methamphetamine. Yet despite being a prisoner, on your release on weekend release and on another occasion, to attend Court on a separate matter, you were again found in possession of methamphetamine and other drugs. On the third occasion and while you still had these first two matters pending before the Court, you were again found in possession of methamphetamine and other drugs. Prison and Court does not seem to deter you from re-offending. Based on the quantity of methamphetamine and other drugs on two occasions, I would ordinarily adopt not less than a three (3) year start point for sentence. Given however the particularly aggravating circumstances of your offending which shows a complete disregard for the law on multiple occasions, I uplift that by 12 months leaving an adjusted start point of four (4) years sentence start point. For your prior convictions, I uplift the start point by a further 12 months to five (5) years.
16. From this adjusted start point of five (5) years imprisonment, I deduct 50 per cent or two and a half (2 ½) years for your assistance to authorities and guilty plea leaving an end sentence of two years and six months (2½) imprisonment, less time remanded in custody.

Result

17. You are accordingly convicted and sentenced as follows, all sentences to be served concurrently:
    • (a) Possession of 1.31 grams of methamphetamine on a totality basis (charging document 20/03/2023 # 1), two and a half (2½) years imprisonment less time remanded in custody;
    • (b) Possession of 0.18 grams of methamphetamine, eight (8) months imprisonment (charging document 29/08/2023);
    • (c) Possession of narcotics namely loose marijuana leaves weighing 17.67 grams and 2 marijuana cigarettes weighing 0.66 grams (charging document 20/03/2023 # 2), twelve (12) months imprisonment; and
    • (d) Charges S951/22 and S952/22 possession of one (1) marijuana cigarette and one (1) seed, six (6) weeks imprisonment.
18. You will therefore spend two years and a half (2½) in prison less the time you have been remanded in custody for these matters.

JUSTICE CLARKE

Addendum

The correct decision date was the 9 February 2024.

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^[1] See also: Mapu v Police [2022] WSSC 56.