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Police v Fuatogi [2025] WSSC 95 (7 October 2025)

IN THE SUPREME COURT OF SAMOA
Police v Fuatogi [2025] WSSC 95 (7 October 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

SOFENI ITAIFAFO FUATOGI male of Samatau and Magiagi

Accused

Counsels: Ms. S. Natia for Prosecution
Accused appears in Person

Sentence: 7 October 2025

SENTENCE

The Charges

1. You appear for sentence on one charge of being in possession of narcotics (Marijuana) contrary to section 7(1)(a) & 18 (b) of the Narcotics Act 1967 and one charge of being in possession of a utensil, a glass pipe for the purpose of committing an offence contrary to section 13(b) of the Narcotics Act 1967. The first offence attracts a punishment of not more than 14 years imprisonment whilst the second offence attracts a punishment of not more than 7 years imprisonment or a fine not exceeding 200 units^[1] or both.

The Offending

2. According to the summary of facts dated 5 September 2025, on 19 August 2025 at around 11.00pm, you and two others were viewed on the CCTV surveillance cameras near the Savalalo fish market by police who suspected that you were all dealing in drugs. They attended to the location, detained you and instructed you to sit down. When you stood back up a small black bag fell from you. Three (3) marijuana cigarettes each wrapped in a foil were found in the bag. A half smoked marijuana wrapped in white rolling paper was found under a rock directly in front of you. When you were searched, a clear glass pipe was also found on your person. You admitted to owning the marijuana.
3. The total combined weight of the marijuana was 1.80grams. You were arrested and taken to the Police Narcotic Unit.

The Background of the Accused

4. Sofeni, you are a 21-year-old male of Samatau and Magiagi. According to the pre-sentence report you are married and have two (2) children and you currently live at Aleisa. You work at your family operated business at the Fish market at Savalalo where you receive an income to support your young family.

Aggravating Features of the Offending

5. The following are the aggravating features of your offending:
   • (i) The high prevalence of drug offending in our society;
   • (ii) The quantity of marijuana found on you;
   • (iii) The circumstances of the offending which included the presence of a utensil. You also admitted in your pre-sentence report that you intended to sell the marijuana cigarettes. This admission points to your involvement in a broader network engaged in drug distribution.
6. There are no mitigating features in respect of your offending.

Aggravating Features in respect of the Offender

7. There are no aggravating factors in respect of you personally.

Mitigating Factors in respect of the Offender

8. I take into account the following mitigating factors personal to you:
   • (i) Your age, you are only 21 years old and still have a future before you. You are married and have two young children;
   • (ii) You are also a first offender with no prior encounters with the law. Your wife describes you as the cornerstone of your household responsible for providing for your family’s need. The bishop of your church, the Church of Jesus Christ of Latter-day Saints attests to your active involvement, noting your regular attendance at Sunday services and participation in church-related activities. While you admitted that your intention to sell marijuana was motivated by a desire to earn additional income for your family, this clearly was a poor decision on your part and not reflective of the positive character references submitted on your behalf; and
   • (iii) your early guilty plea. Your early guilty plea has saved the court and prosecution the time and costs of having to call and hear the evidence against you.

Discussion

9. Sofeni, you have pleaded guilty to possession of three and one-half (3½) marijuana cigarettes and a glass utensil. You admitted in your pre-sentence report that your intention was to sell the marijuana, though you do not personally use drugs. You claim the glass pipe belongs to a friend. I question the truthfulness of this statement—why would you be in possession of a glass pipe, which is commonly used for the consumption of drugs, if you do not use drugs?
10. Your personal circumstances are noted. You are 21 years old, a first-time offender, married with two children. You have accepted responsibility for your actions, cooperated with the authorities, and have not sought to excuse your behaviour.
11. The Court must balance the need for deterrence with the opportunity for rehabilitation. You are still young, and you have responsibilities to your family. The goal of sentencing is not only to punish but also to guide offenders away from future criminal conduct.
12. The prosecution has recommended a custodial sentence with a starting point of 1 to 2 years’ imprisonment. I have carefully considered this recommendation alongside the sentencing memorandum and its annexed case references. It is evident that the range of sentences imposed in similar cases varies considerably—from terms of imprisonment to non-custodial supervision sentences. I note in particular that custodial sentences have typically been reserved for offences involving methamphetamine, a Class A narcotic, or where the quantity of marijuana is substantial or were there has been more than one narcotic involved.^[2]
13. Cases involving smaller quantities of marijuana, particularly where the offender is a first-time offender and where other mitigating factors are present, have attracted more lenient, rehabilitative responses, in contrast to cases involving large quantities of narcotics or repeat offending, Context is therefore essential in ensuring consistency and fairness in sentencing.^[3]
14. The same principle applies to the possession of utensils. Where the utensil is associated with methamphetamine, a Class A narcotic, the courts have generally imposed custodial sentences, given the seriousness and addictive nature of the substance. ^[4] However, where possession of a utensil is the only charge, non-custodial sentences have been preferred, often involving fines, supervision, or mandatory rehabilitation programs.^[5]
15. Had the charges before the court involved solely the possession of marijuana, a non-custodial sentence would likely have been appropriate. The same consideration would apply had the charge been limited to possession of a utensil. However, the combination of both marijuana and a utensil commonly associated with drug consumption elevates the seriousness of the offending. It reflects a degree of preparation and intent that goes beyond mere possession, and the court must treat such conduct with the gravity it deserves.
16. While the quantity in question is small, the act of selling drugs—regardless of scale—undermines the safety and wellbeing of our communities. It suggests a willingness to profit from the harm of others, and that cannot be ignored
17. I find that a custodial sentence is unavoidable. I will take the possession of marijuana charge as the lead charge and in light of the aggravating factors and the specific circumstances of your case, I arrive at a starting point of six (6) months imprisonment. I deduct 1 month for your previous good character and for your age. I deduct a further 2 months for your early guilty plea. This arrives to a final sentence of 3 months’ imprisonment.
18. For the possession of utensil charge I also find that a term of imprisonment for 3 months is appropriate.

Result

19. Accordingly, you are convicted and sentenced for the charges in the Charging Document dated 1 September 2025 as follows:
    • For the charge of possession of narcotics, you are convicted and sentenced to three (3) months imprisonment less any time already spent in custody; and
    • For the charge of possession of utensil, you are also convicted and sentenced to three (3) months imprisonment concurrent to the possession of narcotics charge above.
20. You are also warned that any future offending of this nature will be treated with far greater severity.

JUSTICE KERSLAKE

^[1] ST$20,000.
^[2] Police v Aleki [2016] WSSC 48; Police v Oto [2025] WSSC 22 (17 April 2025); Police v Fialelei & Anor [2024] WSSC 119 (12 November 2024); Police v Tulua [2024] WSSC 93 (09 August 2024) and Police v Stanley [2025] WSSC 53 (4 June 2025).
^[3] See Police v Tuilaepa [2016] WSSC 106; Police v Tanuvasa [2025] WSSC 28 (1 May 2025); Police v Tuese [2018] WSSC 8 (30 January 2018) and Police v Pati [2016] WSSC 119 (15 June 2016).
^[4] Police v Stanley [2025] WSSC 53 (4 June 2025).
^[5] Police v Fuiava [2018] WSDC 18; Police v Su’a [2018] WSDC 10; Police v Robles [2018] WSDC 13.