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Police v Fialelei [2024] WSSC 119 (12 November 2024)

IN THE SUPREME COURT OF SAMOA
Police v Fialelei & Anor [2024] WSSC 119 (12 November 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

POLICE (Informant) v TUPAI FIALELEI FIALELEI (a.k.a) TUPAI FIALELEI FIALELEI FUIAVA, male of Faatoia and Lotofaga Aleipata

First Defendant

AND:

DANIEL WILSON (a.k.a) TANIELU WILSON, male of Moataa and Puipaa

Second Defendant

Counsel: F. Lagaaia for Prosecution

I. Sapolu for First Defendant

A. Lesa for Second Defendant

Sentence: 12 November 2024

SENTENCE

Charges

1. Tupai appears for sentence on four charges - two of possession of methamphetamine, each with a maximum penalty of life imprisonment; one of possession of marijuana which attracts a maximum penalty of 14 years imprisonment; and one of possession of rifles and ammunition without a permit, which attracts a maximum penalty of $2000 fine or 2 years imprisonment or both.
2. Daniel on the other hand appears for sentence on one charge of possession of methamphetamine.
3. You had both denied the charges, but on the 22nd August 2024, you vacated your not guilty pleas substituted by guilty pleas to all charges.

Offending

4. The charges arise from a police search pursuant to a warrant, at the house of Tupai at Faatoia on the 28^th July 2022, now over 2 years ago. From the summary which you both accept through counsel, police first arrived to secure the area around 2pm. They located Tupai in one of the rooms at the back of the house. The other three co accused including Daniel were also present inside the house. Another co accused named Malu Palu who had pleaded guilty and already been sentenced had run back inside the house to inform you about police presence.
5. When police entered the front door, Daniel, Malu and Faamatala, (the fourth co accused who has also sentenced by the court) fled, leaving Tupai inside the room. Daniel and Malu ran outside the back door and whilst leaving, Daniel threw away a packet of Pall Mall cigarettes which police immediately located beside Tupai’s van that was parked outside. Police captured Daniel and found inside the packet a small zip block plastic bag containing methamphetamine. Daniel was informed of what was inside the packet. The substances weighed 0.079 grams.
6. When police entered the room that Tupai was in, he was trying to destroy what appeared to be narcotic substances. Police explained the warrant and proceeded to search the room. They found methamphetamine substances scattered on the carpet, the corner of the room and behind the TV stand; and methamphetamine in small crystalline block form on the TV stand and play station area. The substances weighed a total 3.186 grams. Police also found three marijuana branches and cash in a small bag, the marijuana substances weighed 1.101 grams.
7. The search continued to Tupai’s bedroom where police found methamphetamine scattered on the lid of a blue container near the bed. They were uplifted and weighed 0.008 grams. Police also found inside the bedroom a 22 long rifle and air rifle and 461 rifle ammunitions without a permit. They also found a large bag containing cash of over four thousand tala.
8. Following the search, you were informed of the substances and firearms found and both escorted to Apia Police, where you were cautioned and charged. Samples of the substances were sent to SROS for testing. In a report of the 6^th August 2023, they confirmed that the plastic bags found inside Tupai’s room and inside the Pall Mall packet contained methamphetamine. The report also confirmed that samples from the marijuana branches found contained cannabis plant material.

Aggravating Factors

9. I consider
   • (i) the quantity of methamphetamine, 3.194 grams for Tupai and 0.079 for Daniel;
   • (ii) that Tupai’s offending also involved possession of firearms, namely two rifles and ammunition without a permit;
   • (iii) as submitted by prosecution, that the offending by Tupai was commercial in nature. I say that because of the presence of methamphetamine, narcotics and firearms, surveillance cameras and computers, over four thousand tala in cash, and the presence of the three other co accused, two of whom told the court in their respective matters that they were there to buy ‘ice’ from Tupai;
   • (iv) the prevalence of meth cases that almost every Monday at criminal mentions, there is a case involving methamphetamine being called;
   • (v) the impacts on the community which the court had repeatedly highlighted in previous cases;
   • (vi) that again in respect of Tupai, your conviction for similar offending. You were convicted and sentenced to 16 weeks imprisonment, to be followed by 6 months’ probation for possession of methamphetamine in September 2018. You are being sentenced this morning on similar offending that occurred four years later. And from the court’s own record, you will be sentenced on separate and similar offending later this week.

Mitigating Factors

10. I consider:
    • (i) your guilty pleas entered when the charges were to be heard;

(ii) your personal circumstances referred to in the reports by Probation. For Tupai I have read the references by Rev. Iese Uele of the EFKS Vaiala, the sui ole nuu of Vaiala, and the plea of leniency by your parents. The ‘sui ole nuu’ says you were fined by the village; as to what was involved, he does not say;
(iii) For Daniel I consider that you are a user; the 0.079 grams of meth found in your possession is significantly smaller than that found on Tupai, and in other cases that have come before the court. I consider also that your previous offending in 2017 was for unrelated traffic matters. I will therefore sentence you as a first offender.

Discussion

11. There is no denying that cases of hard drugs such as methamphetamine continue to rise that it has now become a major problem in this country and community. The impacts are well known. As the court has said in previous cases, “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.”
12. The maximum life imprisonment penalty is indicative of Parliament’s serious concern for the impact on users, their families and our community. The court’s response has always been that if you are found in possession of meth or ice, you will go to prison, the only question being for how long. Your case this morning will be no different.
13. For Tupai, prosecution recommend a starting point of 3 years for the 2 charges of possession of methamphetamine with an uplift of 9 months for your previous convictions. Your counsel submits that 20 months is an appropriate start point. I have considered all authorities cited by both prosecution and your counsel. I also consider others they did not refer to.
14. Because of the commercial nature of your possession, I adopt 4 and a half years as a start point. I have had regard to a recent sentence by Clarke J in Police v. Tulua [2024] WSSC 93. From the 4 and a half years, I make an uplift of 9 months for your previous related conviction. I then make these deductions. For the references in support of your character and the joint plea by your parents, I deduct three months. I make a final deduction of 12 months for your guilty pleas to the charges. The end sentence for Tupai is four years.
15. For Daniel, prosecution recommend a start point of 2 years. Your counsel on the other hand invites the court to consider a non-custodial sentence. Mr Lesa refers to one of only two cases where this court has imposed non-custodial penalties for possession of methamphetamine. I have considered those two cases. And I have decided that yours will not be the third one.
16. But given the quantity of substances found in your possession I adopt 12 months as the appropriate start point. I refer to Police v. Toese [2024] WSSC 90. I deduct three months for your personal circumstances and your first offender status. I make a final deduction of 3 months for your guilty plea. The end sentence for Daniel will be six months.

Result

17. For Tupai:
    • (i) On each of the two charges of possession of methamphetamine, you are convicted and sentenced to 4 years’ imprisonment;

(ii) On the one charge of possession of marijuana, convicted and sentenced to 12 months’ imprisonment;
(iii) On the one charge of possession of rifles and ammunition without a permit, you are convicted and sentenced to 12 months’ imprisonment;
(iv) All sentences will be served concurrently, less time in custody since 22^nd August 2024 pending sentence.

18. For Daniel, on the one charge of possession of methamphetamine, you are convicted and sentenced to 6 months’ imprisonment, less time in custody since 22nd August 2024 pending sentence.

JUSTICE ROMA