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Police v Rockliffe [2018] WSSC 122 (25 October 2018)

SUPREME COURT OF SAMOA
Police v Rockliffe [2018] WSSC 122

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

WILLIAM ERNEST ROCKLIFFE male of Vancouver Canada.
Accused

Counsel:
L Sio for prosecution
T H Schuster Accused

Decision: 25 October 2018

S E N T E N C E

[1] William Rockliffe, you appear for sentence on the following charges:

(i) One charge of possession of marijuana contrary to section 7 and 18 of the Narcotics Act 1967 carrying a maximum penalty of 14 years imprisonment;
(ii) one charge of importation of prohibited imports contrary to section 91, Schedule 1 and section 249(a) of the Customs Act 2014 carrying a maximum penalty of 3,000 penalty units or both; and
(iii) one charge of possession of utensil contrary to section 13(b) of the Narcotics Act 1967 carrying a maximum penalty of 7 years imprisonment.

The Offending:

[2] According to the Summary of Facts accepted by you through your counsel, on the 28th August 2018, you arrived at Matautu Wharf Apia on a yacht, “Optimist of London”.

[3] On the 30th August 2018, Police received information from the Transnational Crimes Unit regarding the “Optimist of London” owned by you and suspected of carrying prohibited substances on board.

[4] At approximately 9.00am, Police prepared a search warrant and then executed that warrant with a search of your yacht. As a result of the search, Police found:

(i) One marijuana bud weighing 0.8 grams inside a fridge;
(ii) One marijuana ‘hash’ weighing 1.05 grams also found inside the fridge;
(iii) Three halves of marijuana cigarettes weighing 0.3 grams; and
(iv) One small plastic bag with a small amount of MDMA (ecstasy) found inside the fridge; and
(v) One hooka steel pipe, one glass water pipe, one silver spoon and small plastic bag all being utensils for the purpose of committing an offence against the Narcotics Act 1967.

[5] Your guilty plea to information S1389/18 shows that you imported into Samoa the prohibited goods consisting of the three half marijuana cigarettes, one small plastic bag with hash marijuana parts, a small bag of MDMA (ecstasy) and one small bag with liquid marijuana parts. You state in your affidavit that as a result of working in the fishing industry and operating your own boat, you have suffered injury and body aches from repetitive manual labour and you have thus used marijuana recreationally to ease your body aches and pains. You have no medical certificate to support this.

[6] According to your affidavit, following the search, you were taken into Police custody and then held at Tafaigata for one (1) week. You also state that as a result of the search, approximately USD$3,000.00 damage was caused to your boat. This is your assessment of the alleged damage. You entered a guilty plea to the charges at the first available opportunity.

The Accused:

[7] You are a 50 year old male of Vancouver Canada. You completed school to year 12 and then continued on to College gaining a degree in Educational Media Resources. You married your then wife Suzan at the age of 22, bought your own fishing trawler and started a commercial fishing venture. You have two children from your marriage, a daughter born in 1990 and a son born in 1995. You separated from your wife in 2003 and divorced in 2006.

[8] You have also worked in various other jobs including construction and in the movie industry. In 2013, you say in your affidavit that you lost two friends in a car accident as a result of a drunk driver, another friend died of cancer and your father also passed away. As a result of their deaths, your dream to travel the world became more pressing and urgent.

[9] In February 2014, you started your round the world journey traveling from Canada to Europe and then throughout a large part of the world. Your extensive world travels are set out at annexure “A” to your affidavit in support of your application for discharge without conviction.

Aggravating factors:

[10] The aggravating factors relating to your offending is that the prohibited goods imported by you included MDMA (ecstasy), albeit it in small and/or residual quantity. This is a class B narcotic classified as a narcotic posing a high risk of harm under the Narcotics Act 1967. You were also in possession of not one but four utensils for the purpose of committing a crime against the Narcotics Act 1967.

[11] There are no aggravating features personal to you as an offender. You are a first offender.

Mitigating Factors

[12] The mitigation features personal to you of your matter are as follows:

• Your guilty plea at the earliest opportunity;
• Your prior good character; and
• Your genuine remorse and apology extended.

Application For Discharge Without Conviction:

[13] You have applied for a discharge without conviction. In order to determine your application for a discharge without conviction, I must assess (a) the gravity of your offending; (b) the direct and indirect consequences of a conviction on you; and (c) whether the consequences of a conviction are out of all proportion to the gravity of your offending.

[14] In New Zealand, it is recognized that the importation of drugs is a serious offence for which deterrent sentences are imposed (O’Dowd v R [NZCA] CA31/02). Similarly, the importation of illicit drugs into Samoa is a serious offence. To view the illicit importation of drugs into Samoa in any other way would undermine the integrity of Samoa’s borders, encourage others to import illicit narcotics into the country and expose the Samoan community to greater risk from the devastating effects of drugs that have taken a serious toll in other communities overseas. Your counsel has appropriately acknowledged in his oral submissions the seriousness of the offences for which you appear.

[15] In your favor however is the small quantity of the prohibited narcotics and items brought into Samoa which mitigates the seriousness of your offending. I also accept that the drugs were for personal use and not for a commercial purpose. I assess the gravity of your offending taking into account these factors and the aggravating and mitigating features of your offending together with those mitigating features personal to you as the low end of moderate.

[16] I turn to the direct and indirect consequences of a conviction on you. Fundamentally, the consequences advanced on your behalf is that convictions for drug offending would affect you being allowed to enter and visit countries in the Asia and Pacific region and to continue your dream of travelling around the World. You had been scheduled to travel to Fiji, New Zealand, Australia and to the northern Pacific and Asia.

[17] In Zhang v Ministry of Economic Development HC Auckland CRI 2010-404-453, 17 March 2011, Asher J considered an application for discharge without conviction on appeal and the effect of a conviction on a person’s immigration status and ability to travel. Asher J stated:

“[14] In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision - making process by a decision to discharge without conviction: R v Fox, Liang v Police; and Steventon v Police.

There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist

those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemard...”

[18] In my view, where the offending is drug offending involving the illicit importation of narcotics across international borders and the consequences of a conviction on future travel plans are put forward as basis for asking the Court to grant of a discharge without conviction, the Court should be hesitant in usurping the role of immigration and customs authorities. A critical role of immigration and customs authorities is to protect their borders from the illicit importation of drugs. To grant a discharge without conviction on charges including the importation of illicit drugs on the grounds that a conviction would impede future travel plans to other countries would undermine the ability of those overseas authorities to properly assess the risk that you may represent in entering those countries. In my assessment, it would be inappropriate in a matter such as this for this Court in these circumstances to usurp the role of immigration and customs authorities. I place minimal weight on this consequence of conviction on you in terms of your future and travel plans.

[19] You have also advanced that the consequences of the adverse publicity your matter has received in the media should be taken into account. It is submitted that you have been portrayed as a ‘serious dealer’ of drugs or a ‘drug smuggler’ in the media. The media reports and their content are not before the Court. In your affidavit however, I do note that you refer to the media publicity as in the ‘local media’. It is therefore also not clear what if any international exposure there has been of your matter.

[20] I accept that your matter has received local media attention. That however has been short lived. You also do not live in Samoa so the impact of those local reports on you as a mitigating factor is also minimal and will in my view be substantially mitigated by this judgment. As I made clear when I heard submissions, there is no material before the Court that suggests that your importation and possession of drugs was for anything but personal use.

[21] There is also no material before me to suggest that a conviction would impact on your future employment prospects or have any other material impact on you apart primarily from impacting your travel plans and dreams.

[22] In my view, the consequences of a conviction on you on the material before the Court is therefore minor.

[23] Finally, I am to determine whether the direct and indirect consequences of a conviction are out of all proportions to the gravity of your offending. I do not find that the consequences of a conviction which I assess as minor are out of all proportion to the gravity of your offending which I assess as at the low end of moderate. In so concluding, the application for a discharge without conviction is therefore declined.

Discussion:

[24] The charges to which you have pleaded guilty are serious and it is important that this Court does not condone your actions. To do so would be to encourage others to follow the path that you have taken and it would place the community at risk.

[25] It is no secret to any seasoned world traveler that to carry drugs in any quantity small or large across an international border carries with it very serious risks. I am certain that with your background, travelling experience and education, you knew the risks you were taking when you travelled to Samoa with the drugs on board your vessel and your possession of the utensils.

[26] The Summary of Facts states that you entered Samoa on the 28th of August and the search was conducted on the 30th August. It is unclear whether you completed an Immigration and Customs arrival form. This would ordinarily occur for any person on entering Samoa. I expect persons arriving by yacht are no different. If you did, that would and should have alerted you to Samoa’s immigration and customs laws. You will however from your extensive world travels be well familiar with these forms and the seriousness with which many countries take illegal drug importation.

[27] The submissions through your counsel and your Pre-Sentence Report suggest some form of naivety on your part about Samoa’s narcotics laws. I do not accept that suggestion at all that in your naivety, you did not consider the importation and possession of the narcotics and utensils found on your vessel to be potentially unlawful. Your extensive world travels will have taught you this. It was in my view a calculated risk taken by you, perhaps considering Samoa a ‘light touch’ so to speak. Regrettably for you, that is not the case. Your experience should serve as a deterrent to others from following your steps.

[28] Now I turn to your sentence. Prosecution seeks a non-custodial sentence with a fine of $1,000.00. I have been referred to Police v Uluilelatatuvale [2018] WSSC 59 (16 March 2018) where an accused who imported a prohibited glass pipe, possessed that utensil and made a false declaration on arrival was fined $250.00. In Police v Tesimale Seigafoiava (Unreported) sentence of Tuala-Warren J on 31 August 2016, the accused was convicted and fined $1,000.00 for the possession of a utensil with the purpose of committing an offence against the Narcotcs Act 1967. The defendant was fined $1,000.00.

[29] In my respectful view, your offending is more serious than both these matters given the number of utensils in your possession and also due to the importation of the prohibited narcotics that were absent in the two matters to which I have been referred. I however accept the submissions that a non-custodial sentence is appropriate in the circumstances. The non-custodial sentence however will serve as a deterrent to you and others from committing this offending bearing in mind also your early guilty plea and the mitigating factors.

[30] Mr Rockliffe, you are accordingly convicted and sentenced as follows:

(i) On the charge of importation of prohibited imports bearing in mind the imprisonment and maximum fine, convicted and fined $2,500.00 to be paid within 14 days, in default, 3 months imprisonment; and
(ii) On the charges of possession of marijuana and possession of utensils, time remanded in custody.

[31] Your travel documents surrendered to the Court are to be retained until you have paid your fine in full.

JUSTICE CLARKE