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Police v Faamausili [2025] WSSC 12 (10 March 2025)

IN THE SUPREME COURT OF SAMOA
Police v Faamausili [2025] WSSC 12 (10 March 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

LARRY FAAMAUSILI, male of Malie and Faatoia.

Accused

Representation: M T. Fesili & F Lawrence for Prosecution

UI Sapolu for the Accused

Sentencing Hearing: 16th December 2024 & 3rd February 2025
Sentence Decision: 10th March 2025

RESERVED SENTENCE

1. Larry Faamausili, you appear for sentence on one charge of possession of 13.18 grams of methamphetamine; one charge of possession of 1.17 grams of marijuana flower heads; one charge of possession of two marijuana cigarettes; and one of possession of utensils involving a portable electronic scale, a glass pipe and one piece of straw.

The Offending

2. According to the Summary of Facts dated 21st November 2024 accepted by you through your counsel, on the 19th July last year at 5.40am, police executed a search warrant at your home at Malie. When police arrived, you were present with your wife and two children. A search discovered a black hand carry bag on top of your mattress under a blanket in your bed room. Found were the methamphetamine, marijuana flower heads, a portable electronic scale, the glass pipe and piece of straw. You were arrested and taken to the police station. At the police station, police found the three marijuana cigarettes in your wallet.

The Accused

3. You are a 44-year-old male of Faatoia and Malie. According to your Pre-Sentence Report, you are the eldest of nine children. You completed high school and went on to Polytechnic and the National University of Samoa. You have held various good jobs including most recently, as a Senior Finance Officer within the EPC. You are married with two children. Your two young daughters have written heartfelt pleas for a lenient sentence.

Aggravating factors

4. The aggravating factors of your offending are:
   • premeditation. Your offending was clearly premeditated;
   • the quantity of methamphetamine and other drugs found in your possession;
   • your offending involved the presence of the drugs in your home where you reside with your children;^[1] and
   • the prevalence of narcotics offending in Samoa, including methamphetamine possession and use reflected in the many cases and defendants now coming before the Courts.^[2]
5. You have confirmed your prior conviction for failing to comply with lawful requirements entered in 2020. I do not uplift your sentence for that offending as it is different in nature.

Mitigating Factors

6. There are no mitigating factors to your offending. I however accept that there are a number of mitigating factors personal to you. These are:
   • (a) the village penalties imposed and paid by you and the banishment;
   • (b) your personal circumstances and the heartfelt plea by your daughters;
   • (c) your genuine remorse; and
   • (d) guilty plea on the withdrawal of the 2 other charges against you.
7. Your counsel has pressed for a deduction for prior good character. She has referred me to Police v Okesene [2012] WSSC 15 and Police v Lipa [2013] WSSC 63. I have also had regard to Parkin v R [2018] NZCA 404 and R v Johnson [2020] NZHC 169. In Lipa, Chief Justice Sapolu referred to prior convictions of a trivial nature such as driving with an expired driving license and failure to wear a seatbelt as the types of trivial offences that might not be taken into account against prior good character. In Parkin and Johnson, there, the “absence of intervening offending after long distant convictions” is relevant to the determination of whether to extend prior good character discount.
8. Clearly, your prior conviction cannot be characterized as “long distance”, it was entered in 2020. In the intervening short years since then, you have gone on to commit the serious offending here. Also, failure to comply with directions by police, though not of the most serious, also cannot be said in my respectful view to be trivial. Though you have supportive and positive references that speak of your good character, yours is not a case in which I view a discount for prior good character is warranted or appropriate in the circumstances.

Discussion

9. Larry, when I read the plea for leniency by your two daughters, I felt for them and where you have now placed them. You are blessed with two daughters who adore you. On your behalf, they have apologized for your offending. That apology however is not for them to make nor should they feel any sense of responsibility for your offending. This was entirely of your making.
10. In her written submissions, counsel notes that you take issue with the armed police search conducted at your home. In so doing, you allege that police pointed guns at your wife and children and you are concerned of the impact of that on them. That an armed police search took place of your home is again entirely your doing Larry. It was you who took the drugs in to your home. It was you who potentially exposed your children to the drugs in your home. And it was because of you that the police raid took place. As you know, at least one police officer has been killed last year. It is standard police practice to be armed when these raids take place. If people take drugs into their home as you have, this is the risk that they carry. Don’t shift blame to police for doing their jobs.
11. I also reject the idea that you took the drugs to “cope with the pressures of work and to ensure” you maintain a high standard of work. You are a senior Finance Officer at the EPC dealing with, I expect, accounts. Methamphetamine has no positive effects and is a hard drug well-known to be:
    • “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, a phenomenon not commonly associated with other drugs...”^[3]
12. It is well past-time for defendants to stop deluding themselves that they take methamphetamine for some positive reason. It has been said to me many times by defendants and it is nonsense. In your case, not only were you in possession of a large amount of methamphetamine for Samoa and other drugs, you were also in possession of an electronic weight scale. That is often a tool of the trade for a dealer. Fortunately for you, you are not being sentenced as a dealer, but a user. Had police caught you as a dealer, today’s sentence would be sterner.
13. Narcotics offending involving “ice” is now prevalent before our courts and anecdotally, is flourishing through our community. It is becoming an epidemic reaching into the lives of people from all walks of Samoan life. The approach to methamphetamine sentencing was addressed in cases such as Police v Patau [2013] WSSC 120 and Police v Tevaga [2016] WSSC 38. Possession of “ice” carries a maximum penalty of up to life imprisonment. Deterrent sentences are imposed to deter not only you from future involvement with “ice” and similar drugs but to also send a clear message to others that if they get involved with ‘ice’, they will in all likelihood find themselves in the police van to Tanumalala Prison. Possession of “ice” in Samoa is sternly punished, even for small quantities. People involved with ice should also not delude themselves of what will almost inevitably happen to them should they be found in possession of “ice” – and it matters not what your status in this life
14. I do not apply the sentencing bands in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 as those were in respect of the manufacture, supply and commercial purpose. Your possession was for personal use. Your counsel submits that a start point of 30 months’ imprisonment is appropriate and places significant weight on Police v Tauialo [2019] WSSC 68 (29 November 2019) where a 4 year start point was adopted in a case involving 25.8 grams of methamphetamine. Prosecution seek a start point of 42 months’ imprisonment. Annexed to this judgment is a table showing a number of personal use methamphetamine sentencings before the Samoan courts.
15. Police v Tauialo involved the importation of 25.8 grams of methamphetamine, sentenced applying R v Fatu [2005] NZCA 278. He had no other substances or utensils so the cases are distinguishable. Nevertheless, the start point of 2 ½ years submitted by your counsel is not supported by the sentencing authorities. In Police v Webber [2023] WSSC 3 (7 February 2023) for example, a 3 year start point was adopted for 5.8 grams of methamphetamine on a totality basis. In Police v Mapu involving 1.6 grams of methamphetamine on a totality basis, a 3 year start point was adopted.
16. Having regard to the authorities and adopting the possession of methamphetamine charge as the lead charge on a totality basis, I view 3 ½ year sentence start point as appropriate. From that start point, I deduct 5 months for your genuine remorse expressed to the court; a generous 6 months’ deduction for the village penalties imposed and paid; 4 months for your personal circumstances and the heartfelt plea from your wife and daughters; and from the balance, 6 months for your guilty pleas leaving an end sentence of 1 year 9 months’ imprisonment.

Result

17. Accordingly, you are convicted and sentenced as follows less remand in custody per charging document dated 19 August 2024:
    • (i) charge # 1 possession of methamphetamine, 1 year 9 months’ imprisonment;
    • (ii) charge # 2 and # 3, 3 months’ imprisonment each charge, concurrent to charge 1; and
    • (iii) charge # 4 possession of utensils, 4 months’ imprisonment concurrent.
18. On your release from prison, I encourage you to attend a program to assist you with your rehabilitation. These are offered by the Salvation Army. I leave it to you to take that step to turn your life around Larry.

JUSTICE CLARKE

^[1] R v Wade [2011] BCL 11 at [30].
^[2] See: Geoff Hall, Hall’s Sentencing (looseleaf ed, LexisNexis) at [I.5.4 Prevalence] and prevalence as an aggravating factor. See also: Police v Mapu [2022] WSSC 56 (10 November 2022); Adel Fruean “Concerns at the severe impact of increased meth use in Samoa”, ABC Australia Pacific Beat (1 November 2023) <http://www.abc.net.au/pacific/programs/pacificbeat/samoa-meth-concerns-over-increased-use/103047652> [3] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72.