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Police v Roache [2021] WSSC 16 (6 April 2021)

SUPREME COURT OF SAMOA
Police v Roache [2021] WSSC 16

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AJ ROACHE, male of Lotopa and Sinamoga.
Second Defendant

AND:

STEWART TUITAMA STEWART, male of Faleasiu and Falelima.
Third Defendant

AND:

SANELE SCHUSTER, male of Alamagoto.
Fourth Defendant

AND:

ANA TAIMUA FUIMAONO, female of Vaiusu and Vailuutai.
Sixth Defendant

Counsel:
L Faasii for prosecution
T Atoa for second and third defendants
H Schuster for fourth defendant
M Soonalole for sixth defendant

Sentence: 06 April 2021

S E N T E N C E

1. After a defended hearing the defendants were found guilty of a number of charges. Jointly of possession of two (2) grams of methamphetamine also commonly known as ice. Secondly jointly of possession of five (5) pipes for the purposes of committing an offence under the Narcotics Act 1967. Thirdly jointly of possession of marijuana totaling forty six (46) grams of leaves and cigarettes but individually charged by the prosecution. And for the defendant Stewart Tuitama four (4) additional charges of firstly possession of 7.8 grams of methamphetamine. Secondly possession of two glass pipes for the purpose of committing an offence under the said Narcotics legislation. And thirdly of possession in total of 109 grams of marijuana but individually charged by the prosecution. The detail and factual circumstances of this matter are reported in Police v Aloese [2021] WSSC 10 as is the decision of the Court.
2. As the charges against the defendant are different and because some have relevant previous convictions and others do not I need to deal with each defendant individually. I start with the first defendant AJ Roache. The facts established at trial were that this defendant was part of the ice and marijuana smoking party held at Fa’atoia at the residence of his co-defendant Pitoitua Aloese on 26 December 2019. He had visited his friend Pitoituas house to help plan and/or carry out renovations to Pitoituas house. It was Pitoituas evidence that he stayed on and became part of the party that occurred in Pitoituas bedroom involving all the defendants the afternoon of 26 December 2019.
3. AJ is also known as Junior Roache and he has previous convictions dating back to 2004 and 2007. None of those involve narcotics offending but he is no stranger to prison. I suspect drugs and alcohol are AJs problem.
4. The Courts sentence for this and the other defendants must hold them accountable for their crimes and must protect the community from drug offenders. It must also condemn their behaviour and continue to send the message to every defendant and to all others that drug offending does not pay. And that the Court in the current atmosphere of increasing drug offences in this country will not be lenient, especially in relation to the use of the so-called heavier narcotics such as methamphetamine which must not be allowed to gain a foothold in this country like it has in other Pacific Nations. I will therefore start with possession of the two (2) grams of methamphetamine which is the most serious charge.
5. The maximum penalty for possession of any amount of methamphetamine is life in prison. But it is important to factor in the quantity involved in any particular case which in the present matter is two (2) grams. It is in my view appropriate to adopt the same start point for sentence that was adopted for this charge for your co-defendant Pitoitua namely for the same reasons as enunciated at his sentencing. Where the court referred to illicit narcotics as being the scourge of many a society and the need to protect our community especially the young people thereof from such recreational drugs. Start point for Pitoitua was two (2) years in prison that will also be the start point for you AJ.
6. From a start point mitigating factors such as a guilty plea and clean record are normally deducted but in your case you have none of those. Your previous conviction record may be old but it is not evidence of good character, quite the contrary and that is all that is before the court. Plus a letter from your Bishop since you are of the LDS faith.
7. I have seen lots of letters like this over the years I have never seen one that says anything bad about anyone. It is insufficient AJ to convince me that you have reformed because your involvement in this drug taking party on the day in question says otherwise. I accept AJ that there is no evidence you went to Fa’atoia on this day to commit these crimes. But you went along with your co-defendants when you should have just stayed away from all this. That was your mistake and that is why you are in the dock today facing these charges. There are no mitigating factors in your favour.
8. On the possession of methamphetamine, you are convicted and sentenced to two (2) years in prison but your remand in custody time awaiting sentence is to be deducted.
9. On the charges of possession of marijuana for the same reasons as Pitoitua and following the same approach you will receive the same sentence. That is six (6) months each charge cumulative to each other but the whole term of eighteen (18) months to be served concurrent to your aforesaid two (2) years.
10. On possession of the pipes again following the same approach as Pitoitua convicted and sentenced in your case to eighteen (18) months in prison concurrent term.
11. O lona uiga o le aofaiga o lou fa’asalaga AJ mo mataupu uma nei e lua (2) tausaga le taimi e nofo sala ai i le toese ae tatau ona toesea ai le taimi lea sa e nofo taofia ai e fa’atalitali le fa’aiuga o lenei mataupu.
12. Stewart Tuitama is in a different category. The trial evidence showed that he arrived at Pitoituas house carrying a backpack which contained quantities of ice and marijuana. According to Pitoitua he came there to exchange what he had in his backpack for marijuana from his co-defendant Ana Fuimaono. And the both of them then became part of the ice and marijuana smoking party that afternoon. The trial evidence also showed that when the Police arrived Stewart tried to escape through a glass window and was arrested and in his backpack was found a further 7.8 grams of ice, two glass pipes and in total 109 grams of marijuana. The street value of these narcotics was not made apparent at trial but it is clear that this was far more than required for personal consumption. The Court draws the inference that Mr Tuitama is in fact a dealer in methamphetamine and marijuana.
13. There have been many statements from the judges of this community about how the Court treats those who deal in narcotics for financial gain. Or for supply to their friends. Those cases are governed by the principles laid out by my brother Slicer, J in the case of Police v Patau [2013] WSSC 120 and those sentencing bands apply to this defendant and this matter. Sentencing in relation to Stewarts possession of the 7.8 grams of methamphetamine would be at the lower end of band two but should reflect that it is still more than five (5) grams in weight.
14. I dealt firstly with the joint charges against Stewart. For the two (2) grams of methamphetamine possession charge same sentence as his co-defendant convicted and sentenced to two (2) years in prison concurrent to his other terms.
15. In relation to possession of the marijuana same sentence but uplifted by six (6) months to reflect that Stewarts previous conviction were also for possession of marijuana. In other words, convicted and sentenced to twelve (12) months each charge cumulative to each other which is a three (3) year term. That term to be concurrent to his other prison terms about to be imposed.
16. Possession of the pipes convicted and sentenced to eighteen (18) months in prison, concurrent term.
17. The most serious charge facing Mr Tuitama is the additional charge of possession of the 7.8 grams of methamphetamine that was found in his backpack. I regard this as low level supply falling into the lower band end of Band two of the Patau sentencing band but I note the quantity is greater than five (5) grams.
18. Considering the start points adopted in other cases of possession of methamphetamine I adopt for this matter a four (4) years in prison start point for sentence. That must be upgraded to six (6) years to reflect the fact that this defendant is a dealer in the narcotic known as ice. And was engaged in that activity on the day in question. There are no mitigating factors in favour of this defendant. For possession of 7.8 grams of methamphetamine, he is convicted and sentenced to six (6) years in prison.
19. For possession for the two (2) glass pipes also found in his backpack convicted and sentenced to eighteen (18) months in prison but again concurrent term.
20. Possession of the109 grams of marijuana which I will deal with together again the evidence shows this is more than usual for personal consumption. It supports the fact that the defendant deals in marijuana as well. Start point of twelve (12) months will be upgraded to three (3) years to reflect this fact and the defendants previous convictions which are all for possession of marijuana.
21. On the charge of possession of marijuana convicted and sentenced to three (3) years in prison but concurrent to the other terms.
22. From the totality of sentence perspective and section 56 of the Sentencing Act 2016 as referred to by his defence counsel I am satisfied these penalties are not out of proportion to the gravity of his offending and accurately reflect the criminal culpability of the offending and his particular circumstances.
23. O lona uiga o le aofaiga e tatau na tuli e lau susuga Stewart i le toese mo le solitulafono lenei e ono (6) tausaga ae toesea ai le taimi lea sa e nofo taofia ai e fa’atalitali ai le fa’aiuga.
24. The next defendant is Sanele Schuster who was also part of the ice and marijuana party in Pitoituas bedroom. In his case the trial evidence was that he arrived in the evening, was the last to join the party and he entered the premises just before the Police raid. How long before the Police raid is not known but it is clear from Pitoitua’s testimony that he was smoking marijuana only which he obtained from Ana. His culpability therefore is probably the least of all the defendants. Sanele has a previous conviction but it is for a totally unrelated offence and he has no narcotics previous conviction.
25. On the charge of possession of the two (2) grams of ice the evidence of Pitoitua was clear that Sanele only partook in consuming marijuana. The three defendants specifically named by Pitoitua as being involved in the ice and marijuana smoking were AJ, Stewart and Ana.
26. On the charge therefore of possession of the methamphetamine of two (2) grams the defendant will be convicted and discharged without penalty.
27. On the other charge of possession of marijuana which the defendant was consuming to some extent, because of his clean record and minimal involvement I will deal with him by way of a monetary penalty.
28. You will be on those charges convicted and fined $1,000 plus $300 Police costs $200 Probation Office costs, total sum of $1,500.00 to be paid by 4:00 pm tomorrow 7^th of April 2021 in default six (6) months in prison.
29. On the charge of possession of the pipes likewise convicted and discharged without penalty. Again because the evidence indicated you were involved in smoking marijuana only.
30. E tatau ona oo atu taeao i le ta o le 4:00 i le tapuni o le Ofisa o Fa'amasinoga ua totogi lau sala tupe lea a leai e te nofo sala i le falepuipui mo le ono (6) masina.
31. The final defendant is Ana Fuimaono and the trial evidence from Pitoitua was that he knows Ana well from previous narcotics encounters. She was the first co-defendant to arrive on the 26 December 2019 and she had with her a bag of marijuana which she later exchanged with Stewart for some ice. She then joined in the ice and marijuana smoking party which occurred in his bedroom. A party that carried on for most of the afternoon disturbed only in the late evening by the Police raid.
32. The marijuana involved in this party was over forty (40) grams if you tally up all the individual charges. The reasonable inference to draw according to the evidence is that this was all brought by Ana when she arrived at the premises on the day in question. When taken together with Pitoituas testimony that he has had previous drug dealings with Ana it indicates that Ms Fuimaono is a dealer in marijuana. As such she falls into the same category as her co-defendant Mr Tuitama and must be likewise treated.
33. The joint charges of firstly the two (2) grams of ice as noted by Pitoitua at page 26 of the trial transcript Ana was one of the main participants in smoking the ice and marijuana. As with her co-defendant a two (2) year start point for sentencing is accordingly appropriate. In her case she has a clean record and her pre-sentence report speaks well of her and attached to the pre-sentence report are a number of references that do likewise. The usual deduction of six (6) months from the start point for sentence will apply to Ana.
34. It has also been confirmed to the court by way of a village council letter that a formal penalty has been paid to the defendants village. That is an important matter and is in accordance with our “tu ma aganu’u” there will apply a further six (6) months deduction for that. Her deductions total twelve (12) months from a start point of two (2) years, that leaves a balance of one (1) year in prison.
35. On the charge of possession of the two (2) grams of ice convicted and sentenced to twelve (12) months in prison to be served concurrent to her other terms.
36. In relation to three (3) charges of possession of marijuana as with her co-defendant Stewart, the start point of six (6) months each charge must be uplifted to reflect the fact that she was on the evidence available to the Court dealing in marijuana on the day in question. Your uplift of twelve (12) months per charge is cumulative so that there is a start point for sentence for the marijuana possession charges of three (3) years.
37. She is entitled as her counsel has rightly pointed out to deductions however in mitigation for her clean record and her good character as noted in the pre-sentence report as well as to reflect the village council penalty which she has paid. Those deduction amount to twelve (12) months in total deducted from the start point of three (3) years leaves an end sentence of two (2) years in prison.
38. On the three charges of possession of marijuana she will be convicted and sentenced to two (2) years in prison as a total sentence for all three charges.
39. In relation to possession of the pipes as with her co-defendants a start point of eighteen (18) months is reduced by twelve (12) months to six (6) months because of her clean record and village penalty, leaving an end sentence of six (6) months.
40. On that charge possession of the pipes convicted and sentenced to six (6) months in prison concurrent term.
41. Again as with all other defendants I am satisfied from a totality of sentence perspective this end sentence is not out of proportion to the ice and marijuana smoking party and all the circumstances that occurred at Fa’atoia on the 26 December 2019.
42. O lona uiga o le fa’asalaga o lau mataupu mo moliaga uma nei Ana e lua (2) tausaga e te nofo sala ai i le falepuipui ae a iai se taimi sa e nofo taofia ai e tatau ona toesea mai le lua (2) tausaga lena.
    

JUSTICE NELSON