Police v Oto [2025] WSSC 21 (17 April 2025)

IN THE SUPREME COURT OF SAMOA
Police v Oto [2025] WSSC 22 (17 April 2025)

Case name:	Police v Oto
Citation:	[2025] WSSC 22
Decision date:	17 April 2025
Parties:	POLICE (Informant) v FELIX OTO (Defendant)
Hearing date(s):
File number(s):	2025-00300 SC/CR/UP
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The accused, Felix Oto is convicted and sentenced as follows: Possession of methamphetamine: 10 months’ imprisonment; Possession of one (1) glass pipe: 3 months’ imprisonment; Possession of marijuana branches and leaves: 19 months’ imprisonment. Possession of loose leaves: 1-year imprisonment The sentences are to be served concurrently; less time in custody
Representation:	Attorney General’s Office for Prosecution Accused appears in Person
Catchwords:	Possession of narcotic – possession of glass pipe – possession of marijuana branches and leaves – methamphetamine – possession of utensil – first offender – village penalty imposed - early guilty plea.
Words and phrases:
Legislation cited:	Narcotics Act 1967 ss. 7(1)(a), 13(b), 18(a)(a).
Cases cited:	R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 Zhang v R [2019] NZCA 507.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

FELIX OTO, male of Vailuutai

Accused

Counsel: Attorney General’s Office for Prosecution

Accused appears for himself

Date: 17 April 2025

SENTENCING OF TUATAGALOA J

1. The accused, Felix Oto, pleaded guilty and appears for sentence on the following charges under the Narcotics Act 1967:
   • Possession of a Class A narcotic, namely methamphetamine (“ice or meth”) found in one (1) zip lock plastic bag weighing 0.07 pursuant to s.7(1)(a) with a penalty of life imprisonment under s.18(a)(a);
   • Possession of two (2) clear glass pipes for the purpose to commit an offence pursuant to s.13(b) with a penalty of maximum 7 years’ imprisonment or $20,000 fine or both;
   • Possession of Class B narcotic namely Sativa L cannabis (marijuana) of sixteen (16) marijuana branches with leaves weighing 26.2grams; and
   • Possession of Class B narcotic namely Sativa L cannabis (marijuana) of loose marijuana leaves weighing 7.6grams pursuant to s.7(1)(a) with a penalty of maximum 14 years’ imprisonment under s.18(a)(b);

The offending

2. According to the summary of facts that was read out and accepted by the accused, the Police on 5^th January 2025 at around 5pm were conducting a routine patrol when they observed a vehicle parked in front of the NEOC building with its boot and driver’s door widely opened and the driver seeming to be asleep. They approached the vehicle and noticed the presence of narcotics. The Police escorted both the accused and his vehicle to the Faleata Police Post where a proper search was carried out.
3. The Pre-Sentence Report (PSR) dated 28^th March 2025 obtained from the accused has the accused conceding to the offending. The accused explained in the PSR that instead of going to work in the afternoon he first went to the fish market at Savalalo and bought from a dealer the marijuana substances and methamphetamine. He smoked one and a half marijuana cigarettes on his way to work and placed the rest of the narcotics under the passenger seat covering it with a t-shirt. The accused said that he got to work at around 3pm and the gate to his place of work (Disaster Management Office or DMO) was locked. He was looking for the keys to open the gate when a police vehicle came by and stopped where his car was and two police officers walked over to his vehicle. One of the police officers leaned into the vehicle from the passenger side and saw the t-shirt underneath the passenger seat and got suspicious. His vehicle was searched and the narcotics substances were found by the police officers.
4. The accused works as a nightwatchman for DMO. The Police version is taken by the Court as to what took place.

The accused

5. The accused is 41 years old and was working as a nightwatchman for the Disaster Management Office situated at Tuana’imato. He is in a de-facto relationship with three (3) young children. The accused has a previous conviction of a traffic nature in 2014 unrelated to his present offending. He will be treated as a first offender.
6. A verbal testimonial obtained by the Probation Services in preparation of his PSR from his mother depicted the accused as a reliable and responsible person. The mother tells the probation services that her son (accused) does not do drugs. Obviously, the mother does not know her son well but then again, no child will smoke marijuana or meth in front of a parent or even tell the parents that they are indeed doing drugs.

The aggravating factors

7. The Prosecution submits that the aggravating features of the offending are:
   • Prevalence of narcotics offending;
   • The quantity of drugs found – especially the marijuana substances;
   • Effects of narcotic on the community especially methamphetamine.
8. Prosecution asks the Court to take the totality approach and recommended the starting point of 2 – 3 years’ imprisonment.

Discussion

9. We have seen in the last couple of years the increase number of narcotic raids by the Police where various quantities of marijuana and methamphetamine are seized. We know from those raids that there is an increase number of users of methamphetamine with the number of people that have appeared in court. It is no secret that meth is now embedded in our community. The presence of methamphetamine in society is very worrisome.
10. The increase in penalty for Class A drugs to life imprisonment from 7 years indicates the serious concern Samoa’s Parliament has about the increasing presence of hard drugs in our community. The Court must soundly discourage such offending and do all that is possible to stamp it out.
11. Methamphetamine is a destructive drug, highly addictive with profound mental and physical side effects.^[1]
    • “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.”
12. It is evident in cases coming through court that meth is used and sold in small amounts making it more affordable and accessible. The amount of less than 1gram may be small in quantity but has huge negative impact and effect on people.
13. I reiterate what other learned judges have said about the need for deterrence. A custodial sentence is most appropriate to be imposed to denounce such offending; to deter others from committing the same or similar offence and to protect the wider community from the potential harm of drug offences.
14. The accused confirms in PSR being a user. There is no evidence to suggest that the accused is a dealer or selling the marijuana substances. I therefore accept that the meth and marijuana found were for personal use.
15. The bands provided in Zhang v R [2019] NZCA 507 (personal use) modifying those provided in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (for commercial purposes) where Band one of less than 5 grams attracts community to 4 years’ imprisonment is appropriate for the present matter.
16. The Prosecution referred to methamphetamine (meth) cases where the Court had taken the stance of imposing custodial sentences to discourage people from using meth. The Court in cases weighing less than 1gram have imposed starting point of 12 – 24months.
17. I consider it appropriate to deal with possession of methamphetamine and utensils separate from possession of marijuana of loose leaves and branches with leaves.
18. The mitigating factors I find in favour of the accused is his early guilty plea, first offender status and village penalty imposed.
19. I sentenced the accused as follows:

Possession of methamphetamine and possession of utensil:

• Possession of methamphetamine. I find the starting point of 2 years appropriate less 4 months for being a first offender; 4 months for the village penalty this leaves 14 months. I then give 25% discount for his early guilty plea (4 months). The end sentence is 10 months’ imprisonment.
• Possession of one (1) glass pipe, a straw, one (1) glass bottle and an electronic scale. A three (3) months’ imprisonment term is appropriate.

Possession of marijuana branches and leaves:

• For possession of marijuana branches and leaves weighted in total 26.2 grams I take as appropriate the starting point of 3 years and deduct 6 months for being a first offender and 4 months for the village penalty; this leaves 26 months. I then give 25% discount (7 months) for the early guilty plea. The end sentence is 19 months’ imprisonment.
• For possession of loose leaves weighing in total at 7.60 grams I find appropriate the sentence of 12 months’ imprisonment.

20. The accused, Felix Oto is convicted and sentenced as follows:
    • Possession of methamphetamine: 10 months’ imprisonment;
    • Possession of one (1) glass pipe: 3 months’ imprisonment;
    • Possession of marijuana branches and leaves: 19 months’ imprisonment.
    • Possession of loose leaves: 1-year imprisonment
21. The sentences are to be served concurrently; less time in custody.
    

JUSTICE TUATAGALOA

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^[1] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72.