Police v Tulua [2024] WSSC 93 (9 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v Tulua [2024] WSSC 93 (09 August 2024)

Case name:	Police v Tulua
Citation:	[2024] WSSC 93
Decision date:	09 August 2024
Parties:	POLICE (Informant) v MEFIPOSETA TULUA (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:	Accordingly, you are convicted and sentenced as follows, less remand in custody: Possession of methamphetamine on a totality basis, 2 years and 6 months imprisonment; 1 charge of possession of narcotics and 1 charge possession of seeds, 18 months’ imprisonment, concurrent; and Possession of utensils, 3 months’ imprisonment; and Possession of ammunition, convict and discharged.
Representation:	MT Fesili for Prosecution A. Su’a for the Accused
Catchwords:	Possession of methamphetamine – possession of marijuana branches – possession of marijuana cigarettes – possession of utensils – possession of marijuana seeds – possession of ammunition without a permit.
Words and phrases:	“items seized during police raid” – “previous conviction of similar offending”
Legislation cited:
Cases cited:	Police v Fetalaiga [2016] WSSC 108; Police v Taito [2021] WSSC 68; Police v Tauialo [2019] WSSC 68; Police v Tulua [2016] WSSC 123; 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

Informant

A N D:

MEFIPOSETA TULUA, male of Si’uniu Falealili, Lotopa and Alafua.

Accused

Counsel: MT Fesili for Prosecution

1. Su’a. for the Accused.

Decision: 9 August 2024

SENTENCE

1. Mefiposeta, you appear for sentence on 5 charges involving the possession of:
   • (i) 4.23 grams of methamphetamine (“ice”);
   • (ii) 47 marijuana branches with leaves weighing 83.64 grams and loose leaves weighing 42.35 grams and 2 marijuana cigarettes weighing 0.71 grams;
   • (iii) possession of utensils, namely 1 portable electronic scale and 1 black straw;
   • (iv) 480 marijuana seeds of Sativa L; and
   • (v) possession of ammunition without a permit.

The Offending:

2. In summary, police conducted a raid of your home on the morning of 1^st March 2024 and found the items and prohibited narcotics subject to the charges I have read out. In terms of the ammunition, those were 18 x .22 calibre live ammunition.

The Accused:

3. You are a 39 year old male of Si’uniu Falealili, Lotopa and Alafua. You are the eldest of 4 children. When you finished school, you told the Probation Service you held a number of different jobs including as a Missionary in the Philippines and in the hospitality sector in Samoa. You have two children and are now self-employed in your own catering business.
4. You have a prior conviction for possession of narcotics entered in June 2016 (Police v Tulua [2016] WSSC 123). You have a supportive wife. You acknowledge your substance addiction.

Aggravating factors:

5. The aggravating features of your offending are:
   • (i) the quantity of narcotics in your possession, including possession of “ice”;
   • (ii) that the quantity of narcotics and seeds in your possession coupled with the portable electronic scale leads to the inference that your possession of narcotics had a commercial component. Your guilty plea to possession of the portable weight scale for the purposes for the commission of an offence supports this inference and which your counsel does not dispute; and
   • (iii) the prevalence of narcotics offending in Samoa.
6. Aggravating features personal to you is your prior conviction for similar offending.

Mitigating Factors

7. The mitigating factors personal to you I accept are as follows:
   • (i) the remorse you expressed in court and through counsel;
   • (ii) your personal circumstances with one child now with your mother-in-law while your wife is overseas as a seasonal worker;
   • (iii) your assistance to authorities; and
   • (iv) guilty pleas.

• Discussion:
  8. In Police v Tauialo [2019] WSSC 68 five years ago, I referred to the scourge of “ice” in Australia and New Zealand and it seemed, Fiji at the time. Today, that scourge has reached our shores and is beginning to take root in our community. Published in the international media recently (ABC News Australia: https://www.abc.net.au/pacific/programs/pacificbeat/samoa-meth-concerns-over-increased-use/103047652), one local ice addict is reported to have said that buying the drug in Samoa has never been easier. “Ice” is now regularly reported in the local media and is a matter of significant public concern.
  9. Although media reports referencing unattributed sources should be read with a degree of caution, there seems little doubt from the increasing number of cases coming before court that “ice” is readily available - supporting what is being reported in the media. If reported experiences in neighbouring countries is also a glimpse of Samoa’s future, the increasing prevalence of ice will see increases in violent crime, burglaries and thefts to fund those addictions, corruption, homelessness together with significant health and social consequences. Ice and similar hard drugs has the potential to seriously impact Samoan society and the safety of the community. For those who peddle ‘ice’ for profit and are the vendors of misery to addicts, they should be under no illusion that Tanumalala awaits them.
  10. Mefi, you had possession of a large quantity of narcotics. These narcotics included a quantity of “ice”, a hard drug absent from your offending in 2016. Through counsel, you acknowledge that you understood the risks of possession of these drugs and that you would be imprisoned if caught. Despite this, you took the risk. You claimed that ice made you strong and helped you with your work. Ice however also has serious health side effects, can lead to irrational, delusional and violent behavior - and of course, if you are found in possession of it, will most likely go to prison.
  11. What seriously aggravates your behavior is that your possession of narcotics was for a commercial purpose. In R v Fatu [2005] NZCA 278 applied in Samoa, the possession for “low level supply” of less than five grams of methamphetamine falls within band one attracting a sentence of between two to four years imprisonment.
  12. Prosecution seeks an imprisonment term with 5 year sentence start point. Your lawyer seeks 3 – 4 year sentence start point. You were found in possession of 4.23 grams of methamphetamine falling within band one of R v Fatu together with a large quantity of seeds, marijuana, utensils and ammunition.
  13. Your counsel refers to Police v Webber, Police v Palu and Police v Pritchard. In Police v Webber, Webber was sentenced as a user. There was no commercial component. In Police v Palu, the quantity of methamphetamine in his possession was much smaller than in your case. He also did not have in his possession utensils or other narcotics or a large quantity of seeds.
  14. In your case Mefi, you not only had possession of ice, you also possessed a large quantity of seeds, marijuana and other illegal items. Your possession of narcotics and seeds had a commercial component to it. In Police v Taito [2021] WSSC 68, the Court adopted a 3 year sentence start point for possession of 108 seeds and 35 marijuana joints. In Police v Fetalaiga [2016] WSSC 108 involving possession of 108 seeds, 245 rolled cigarettes of dried marijuana leaves plus 30 small branches of marijuana estimated to yield 7 cigarettes, a 3 ½ year start point was adopted. In your case, not only did you possess the marijuana and seeds, you also possessed the ice and ammunition.
  15. Having regard to the authorities and those to which I have referred as well as the commercial nature of your possession, the 5 year start point recommended by prosecution is appropriate on a totality basis. For your prior conviction, I uplift that by 6 months. From the 5 years 6 months adjusted start point, I deduct 3 months for your personal circumstances and 6 months for your remorse leaving an adjusted start point of 4 years and 9 months. From the balance, two years and three months (27 months) for your assistance to authorities and early guilty plea leaving an end sentence of 2 years 6 months imprisonment.

Result:

16. Accordingly, you are convicted and sentenced as follows, less remand in custody:
    • (i) Possession of methamphetamine on a totality basis, 2 years and 6 months imprisonment;
    • (ii) 1 charge of possession of narcotics and 1 charge possession of seeds, 18 months’ imprisonment, concurrent; and
    • (iii) Possession of utensils, 3 months’ imprisonment; and
    • (iv) Possession of ammunition, convict and discharged.
      

JUSTICE CLARKE