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Police v Fialelei [2024] WSSC 122 (6 December 2024)

IN THE SUPREME COURT OF SAMOA
Police v Fialelei [2024] WSSC 122 (06 December 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TUPA’I FIALELEI, male of Faatoia and Lotofaga

Defendant

Counsel: F. Lagaaia for Prosecution

I. Sapolu for Defendant

Date: 06 December 2024

SENTENCING OF TUATAGALOA J

1. The defendant, Tupa’i Fialelei, was found guilty after a defended hearing. He now appears for sentence on the following charges under the Narcotics Act 1967.
   • (i) Possession of methamphetamine (“ice”) found in one (1) small zip-lock bag weighing 1.17 grams pursuant to s.7(1)(a) of Narcotics Act with a penalty of life imprisonment under s.18(a);
   • (ii) Possession of utensils namely two (2) glass pipes and one (1) plastic straw with a maximum of 7 years’ imprisonment or $20,000 fine or both under s.13(b).

The offending

2. According to the evidence accepted by the Court:
   • The Police attended to the Mareke Lodge and carried out a search of the room occupied by the defendant;
   • The room was registered to the defendant’s name;
   • The defendant was present when the Police attended and carried out the ‘search’;
   • The Police found in the bedroom two (2) glass pipes sticking out from the curtain rod one (1) plastic straw on the table and one (1) small clear zip-lock bag with methamphetamine inside the air condition remote stand.

The defendant

3. The defendant has previous convictions of similar offending and had recently been sentenced to an imprisonment term that he is currently serving.
4. His personal circumstances from the pre-sentence report (PSR) are that he is 38 years’ old, with a pregnant wife and two older children from his previous marriage. He is said to be the sole provider for his family.

The aggravating factors

5. The Prosecution submits that the aggravating features of the offending are:
   • (i) The effect of the dissemination of drugs on the community;
   • (ii) The quantity of drugs found of 1.17grams;
   • (iii) The defendant’s previous convictions of similar offending;
   • (iv) The place of offending is considered a public place, Mareke Lodge used by the general public both local and overseas for accommodation.

Mitigating factors

6. The are no mitigating features personal or to the offending.

Discussion

7. The quantity of methamphetamine found in one small methamphetamine zip-lock indicates personal use. The presence of two glass pipes and a plastic straw means that the defendant is a user of methamphetamine well known as “ice.”
8. The bands provided in Zhang v R [2019] NZCA 507 (personal use) modifying those provided in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (for commercial purposes) where Band one of less than 5 grams attracts community to 4 years’ imprisonment is appropriate for the present matter.
9. I reiterate what other learned judges have said about the need for deterrence. A custodial sentence is most appropriate to denounce such offending; to deter others from committing the same or similar offence and to protect the wider community from the potential harm of drug use.
10. The Prosecution seeks for a starting point of 2 years’ imprisonment for the possession of methamphetamine with an uplift of 6 months to reflect the defendant previous convictions on similar offending. I disagree. The defendant has served time for his previous offending and continuous reoffending would only lead to imprisonment in the future. Counsel for the defendant agrees to 2 years starting point.
11. I agree to 2 years’ imprisonment as starting point and less 6 months for the village penalty as confirmed by the pulenuu of Vaiala and the character references provided on his behalf. This leaves 18 months. I take 4 months’ imprisonment term for the utensils.

Sentence

12. The defendant, Tupa’i Fialelei, is convicted and sentenced as follows:
    • (i) Possession of methamphetamine: 18 months’ imprisonment;
    • (ii) Possession of two (2) glass pipes and one (1) plastic straw: 4 months’ imprisonment;
13. The above sentences are to be served concurrently but are to be cumulative to his current imprisonment term. That is, eighteen (18) months’ imprisonment to be cumulative to his current imprisonment term.

JUSTICE TUATAGALOA