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Police v McFall [2024] WSSC 106 (26 April 2024)

IN THE SUPREME COURT OF SAMOA
Police v McFall [2024] WSSC 106 (26 April 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

JOHN KUEVA MCFALL, male of Fagalii and Asau, Savaii

Defendant

Counsel: T Fesili for Prosecution
Defendant unrepresented

Date: 26 April 2024

SENTENCING OF TUATAGALOA J

The original charges

1. The defendant was on 28 May 2023 originally charged with the following:
   • (i) Possession of narcotics, namely methamphetamine in a zip lock bag weighing at 1.47grams pursuant to section 7(1)(a) Narcotics Act 1967 (“the Act”). Methamphetamine is a Class A narcotic attracting the penalty of life imprisonment under section 18(1)(a)(a) under the Act; and
   • (ii) Possession of utensil, namely two glass pipes for the purpose to commit an offence pursuant to section 13 (b) of Narcotics Act 1967 (“the Act”). Methamphetamine is a Class A narcotic attracting the penalty of life imprisonment under section 18(1)(a)(a) under the Act.

Background

2. The defendant was represented by Ms Muriel Lui who on 17 July 2023 entered not guilty pleas to the charges. The matter was then adjourned for hearing in the week commencing 12 February 2024.
3. On 12 February 2024, the defendant vacated his not guilty plea to a guilty plea for the charge of possession of methamphetamine while the prosecution withdrew the charge of possession of utensils and was dismissed by the court.
4. The matter was then adjourned to 13 March 2024 for sentence on the possession of methamphetamine. Both the prosecutions and defense counsels filed their sentencing memorandum. A pre- sentence report was also filed by Probation as ordered by the court.
5. However, on date of sentencing defense counsel, Ms Lui filed to withdraw as counsel citing that “Counsel and client have differences in proceeding with the matter and the client has raised issues which have made it impossible for counsel to continue to act for the defendant”. Defense Counsel also sought for the Court to disregard her sentencing submissions as they were not endorsed by the defendant.
6. The Court granted the application by Ms Lui to withdraw as Counsel. The defendant was then asked by the Court as to whether he wanted to instruct new counsel to represent him to which he responded in the affirmative. The matter was then adjourned to 15 March 2024 for the defendant to find and appear with new counsel.
7. On 15 March 2024, the defendant requested for further time to instruct new counsel and matter was further adjourned to 22 March 2024. This was further extended to 25 March and then to 27 March 2024. On 25 March 2024, the defendant’s sister appeared and advised the Court that she has instructed Mr. Patrick Fepulea’i but that he was at the time out of jurisdiction. The Court informed both the defendant and his sister that Mr. Fepulea’i has two other lawyers in his office who usually appear on his instructions if indeed Mr. Fepulea’i has been engaged. This the defendant’s sister responded that she is not sure as someone from overseas is paying for Mr. Fepulea’i. The Court further gave the opportunity to 27 March 2024 for the defendant to engage new counsel.
8. On 27 March 2024, the defendant appeared with his sister who informed the court that they have engaged Mr Quentin Sauaga but Mr Sauaga was not in court. The Court warned the defendant and the sister of lying to the court. The matter was stood down for the Court Registrar to contact Mr Sauaga to appear. Mr Sauaga appeared and advised the Court, that the defendant and his sister came and saw him the day before regarding legal representation and he advised them of his retainer they need to pay first. They assured him that they will make deposit by the end of business day. Mr Sauaga advised that the defendant had still not made any deposit.
9. The Court remanded the defendant in custody for it seems to the court that the defendant has no genuine intention of engaging counsel and is prolonging the court’s proceedings. The Prisons Authority was directed by the court to make available to the defendant the list of lawyers and a phone for the defendant to engage counsel. The matter was further adjourned to 15 April for the defendant to engage counsel.
10. On 15 April when the matter was called, defendant advised Court that he has applied for legal aid and yet to obtain a response. Matter was further adjourned to Tuesday, 23 April to await response to legal aid application. Defendant was advised by the Court that he should be in a position to advise the court as to whether he wishes to represent himself should his application for legal aid is not successful.
11. On 23 April the court was advised that the defendant’s legal aid application has been denied. The Court informed the defendant that the court will not give any more opportunity to engage counsel as it seems that he cannot afford one and that is legal aid application has been denied. The defendant was asked as to whether he maintains his guilty plea or wish to change his plea. The defendant responded that he maintains his guilty plea. He further also wishes for the court use his former counsels sentencing submissions filed on his behalf. Copies of submissions by his former counsel and prosecution for sentencing were given to the defendant. The matter was then adjourned to Friday, 26^th April for sentencing.

Charge to be sentenced on

12. The defendant, John Kueva McFall, appears for sentence having pleaded guilty (and has maintained guilty plea) to knowingly have in his possession narcotics, namely methamphetamine in a zip lock bag weighing at 1.47grams pursuant to section 7(1)(a) Narcotics Act 1967 (“the Act”). Methamphetamine is a Class A narcotic attracting the penalty of life imprisonment under section 18(1)(a)(a) under the Act.

The offending

13. According to the summary of facts that was read out and accepted by the defendant, the Police on 28 May 2023 executed a search warrant at one of the hotels on reasonable suspicion that one of its guests is dealing in illegal substances.
14. The defendant was found in one of the rooms with two females. The defendant was body searched and police found in the left pocket of his pants one (1) zip lock plastic bag containing methamphetamine.

The defendant

15. The defendant according to the summary of facts is 48 years’ old, married with four children. According to the PSR, the defendant is no longer married but has four children who live with his ex-wife in American Samoa. The defendant is said to be a first offender.
16. From The PSR, the defendant seems to be a well-educated man who was educated and spent his formative years overseas before returning to Samoa. He was employed at a mechanical/tyre repair shop at Moataa.

The aggravating factors

17. The Prosecution submits that the aggravating features of the offending are:
    • (i) Class A drug of methamphetamine;
    • (ii) The quantity found of 1.47g; and
    • (iii) The effect of methamphetamine on the community.

Mitigating factors

18. The mitigating features are the defendant’s previous good character or first offender status and his early guilty plea. I will accept that he is truly remorseful.

Discussion

19. The sentencing bands in R v Fatu^[1] applies where the drugs found are for sale and supply and manufacture of Class A narcotics that includes methamphetamine. The defendant in his PSR admits using of methamphetamine since 2022. The quantity of the drugs found of 1.47g in one zip lock plastic bag suggests personal use. I accept that the methamphetamine was for personal use. The sentencing bands in Fatu does not apply to the present case.
20. Methamphetamine is a destructive drug, highly addictive with profound mental and physical side effects.^[2] In 2009 Samoa’s Parliament increased the penalty for Class A drugs from 7 years to life imprisonment from 7 years. This indicates the serious concern Samoa has about the increasing presence of hard drugs in our community. The presence of methamphetamine in society is becoming very worrisome. Recently, there is not a month that has gone by without a police raid where methamphetamine was seized or someone being charged. I reiterate what other learned judges have said about the need for deterrence.
21. The personal circumstances of the defendant, is not of consideration to the need to deter this type of offending and the potential harm it does to members of the society.^[3] A custodial sentence is most appropriate to denounce such offending and deter others from committing the same or similar offence and to protect the wider community from the potential harm of drug offences especially methamphetamine.
22. Both the Prosecution and submissions by former Defence Counsel refer to various sentencing authorities of the Court in relation to methamphetamine and submitted for a two (2) year starting point. I agree. I deduct six (6) months for previous good character and two (2) months for remorse; this leaves 16months. I give 25% discount for his early guilty plea of four (4) months. The end sentence is 12 months.

Sentence

23. The defendant, John Kueva McFall, is convicted and sentenced to 12 months’ imprisonment, less any time in custody.

JUSTICE TUATAGALOA

^[1] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72.
^[2] ibid.
^[3]R v Wallace [1999] NZCA 89; [1999] 3 NZLR 159 (CA) at [25].