Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Pose [2024] WSSC 31 (8 May 2024)

IN THE SUPREME COURT OF SAMOA
Police vs Pose [2024] WSSC 31 (08 May 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

LEULUAITUMUA JERRY POSE, male of Vaimoso.

Defendant

Counsel: LF Lagaaia for Prosecution
A Lesa for the Accused

Submissions: 24 April 2024
Sentence: 8 May 2024

ORAL SENTENCE

1. Jerry Pose, you appear for sentence on one charge of possession of 0.11 grams of methamphetamine carrying a maximum penalty of up to life imprisonment; one of possession of narcotics, namely, two (2) marijuana branches weighing 2.6 grams and loose leaves weighing 0.19 grams; and one charge of possession of thirty-one (31) marijuana seeds. Both the two (2) latter charges carry a maximum of fourteen (14) years imprisonment.

The Offending:

2. According to the Summary of Facts accepted by you through your counsel, on the 31^st March 2023, Police executed a search warrant on your home at Vaimoso. You were suspected of dealing in stolen goods. In the course of the execution of the search warrant, Police found three (3) mini zip lock plastic bags containing 0.11 grams of methamphetamine in your wallet. Inside a container found on your property, Police also found blue paper wrapped in a plastic bag inside a tool box. This contained the two (2) marijuana branches with loose leaves to which you have pleaded guilty. Inside the same plastic bag was the thirty-one (31) marijuana seeds.

The Accused:

3. You are 49 years old male and raised in Vaimoso. According to your Pre-Sentence Report (PSR), you are the second eldest of 4 children and have 4 children of your own. You graduated from Samoa College and then enrolled at the University of the South Pacific (USP). After a year at USP, you discontinued your studies. You held various sales and marketing jobs. You then went on to work for your father in his business at Vaimoso. Presently, your family is mainly dependent on your wife and children’s employment to support your family.
4. You told the Probation Service that you began using methamphetamine and marijuana when your 19 year old brother committed suicide. Since you were arrested for this matter, you self-referred yourself to the Salvation Army and were diagnosed with methamphetamine addiction and alcohol abuse. You have positive character references in support of your character. You however have a prior conviction entered in 2013 for similar offending where you were convicted and ordered to come up for sentence within 12 months if called up by the court. You have been fined by your village of Satapuala and paid $5,000 and 4 fine mats. You state that $2,500 was paid to the village of Vaimoso together with a large fine mat.

Aggravating factors:

5. The aggravating factors of your offending are:
   • Premeditation. You acknowledge that you have been a user of methamphetamine and marijuana for a long period of time; and
   • The prevalence of narcotics offending in Samoa. Relevant also is the increasing prevalence of methamphetamine possession and use, reflected in the increasing number of cases coming before the Courts^[1].
6. Prosecution submits that your 2013 conviction is an aggravating factor. I will not treat your prior conviction as an aggravating factor as this was entered in 2013 and was for a single charge. Given the sentence imposed, it was also at the very low end of seriousness in terms of this type of offending. You will not however get the benefit of prior good character.
7. While possession of narcotics in the family home may also be an aggravating factor, in this case, I do not treat it as such. There is no evidence young children were present in the home or exposed to your drug use.

Mitigating Factors:

8. There are no mitigating factors to your offending. I however accept that there are a number of mitigating factors personal to you. These are:
   • (a) your remorse and your self-referral to and completion of the rehabilitation programs;
   • (b) the village penalties imposed and paid by you;
   • (c) assistance to authorities; and
   • (d) guilty plea on the withdrawal of the 2 other charges against you.
9. Although your lawyer submits that your personal circumstances warrant a deduction, with respect, those circumstances can be said to apply to most defendants who are confronted with imprisonment.

Discussion:

10. Jerry, you were convicted of narcotics offending in 2013. It is a pity that your experience with police and the courts then did not compel you to stop using drugs. Instead, you have graduated to “ice”, a hard drug well-known to be:

“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...”^[2]

11. Reading your Pre-Sentence Report, the references submitted and seeing the many people who have come to support you in Court, it is obvious you come from a good family who support you. Your father is well-known and is an upstanding member of the community. Your wife adores you and describes you as her “partner in life”. In your wife and children’s reference, your description as a father is as “nothing short of remarkable”. Your adult children and the lives they have built for themselves seems to confirm to this. That you should however choose to take “ice” and marijuana into your family home and use these drugs seriously diminishes your otherwise glowing characterization as a family man. Your wife and children readily acknowledge your “shortcomings”.
12. Your lawyer has asked for a non-custodial sentence. In all cases except one that have come before the Supreme Court involving ‘ice’, a deterrent sentence of imprisonment has been imposed. The approach to “ice” sentencing was addressed in cases such as Police v Patau [2013] WSSC 120 and Police v Tevaga [2016] WSSC 38. Possession of “ice” carries a maximum penalty of up to life imprisonment. Deterrent sentences are imposed to deter not only you from future involvement with “ice” and similar drugs but to also send a clear message to others that if they get involved with ‘ice’, they will in all likelihood find themselves going to Tanumalala Prison. Possession of “ice” in Samoa is sternly punished, even for small quantities.
13. Your lawyer’s appeal for a non-custodial sentence would involve a radical departure from the Court’s well-established sentencing approach. It is also not one that is warranted given your prior conviction for narcotics possession in 2013 and the fact that you were in possession not only of “ice”, but a quantity of marijuana which by themselves would also attract an imprisonment term.^[3] Today’s sentence will be a deterrent sentence, however, with a component for rehabilitation at the end of your prison term.
14. You are to be congratulated for voluntarily undergoing programs at the Salvation Army, following your arrest. It is a pity however you did not undergo those programs beforehand to seek help with your addiction. If you had done so, you might not be here today. Your case however is a warning to others in the community today using or dealing with hard drugs such as ice to seek help before they are arrested, to avoid the real risk of imprisonment. Family members and friends should therefore encourage and support those involved in ‘ice’ to go to the Salvation Army to undergo programs. Help is available, they only need to make the effort. The alternative of Tanumalala Prison is really not an alternative they will want to go through.
15. I do not apply the sentencing bands in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 as those were in respect of the manufacture, supply and commercial purpose. Your possession was for personal use. Having regard to the authorities, submissions by counsel and adopting totality in sentencing principles and possession of methamphetamine as the lead charge, I adopt a 2 year sentence start point. This bears in mind the small quantity of ‘ice’ found in your possession. From that start point, I deduct 4 months for your remorse and voluntary referral to the Salvation Army program; 3 months for the village penalties imposed; and from the balance, 8 months for your assistance to authorities and guilty plea leaving an end sentence of 9 months imprisonment.

Result

16. Accordingly, you are convicted and sentenced as follows less remand in custody:
    • (i) charge # 1 charging document dated 24 April 2023 possession of methamphetamine, 9 months’ imprisonment less remand in custody;
    • (ii) charge # 2 and # 3 charging document dated 24 April 2023 possession of 31 marijuana seeds; and possession of dried marijuana branches weighing 2.65 grams and marijuana leaves weighing 0.19 grams, 3 months’ imprisonment each charge, concurrent.
17. On your release from prison, you are to be placed under the supervision of the probation service for 6 months and are directed to attend such further programs the Probation Service may direct to assist with your rehabilitation.

JUSTICE CLARKE

^[1] See aslo: Police v Mapu [2022] WSSC 56 (10 November 2022); Adel Fruean “Concerns at the severe impact of increased meth use in Samoa”, ABC Australia Pacific Beat (1November 2023)
<https://www.abc.net.au/pacific/programs/pacificbeat/samoa-meth-concerns-over-increased-use/103047652>
^[2] R v Fatu [2006] 2 NZLR 72.
^[3] See for example: Police v Pritchard [2020] WSSC 19 – possession of 19 marijuana cigarettes, 39 marijuana seeds and dried loose leaves – 18 months imprisonment for possession of seeds; and Police v Maini [2018] WSSC 30 (13 March 2018).