Godinet v Police [1995] WSCA 11; 01 1995 (18 August 1995)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 1/95
BETWEEN

TOMASI GODINET

of Aleisa, Unemployed
Appellant
AND

THE POLICE

of Apia
Respondent

Coram: The Rt Hon. Sir Maurice Casey, President
The Rt Hon. Sir Gordon Bisson
The Hon. Mr Justice Puni

Hearing: 14 August 1995

Counsel: P. F. Meredith for Appellant
Marion Bailey for Respondent

Judgment: 18 August 1995

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

After a defended hearing in the Supreme Court at Apia before Sapolu C.J. on 29 November 1994 the appellant, Tomasi Godinet, was found guilty of two cannabis-related offences. One was that at Aleisa on 26 April 1994 he cultivated prohibited cannabis plants and the other was that at that time and place he had in his possession prohibited cannabis plants. The two charges related to the same plants. The appellant was sentenced to three years six months imprisonment on the cultivation charge and to a concurrent sentence of one year six months on the possession charge. He has appealed against both sentences but as they are concurrent the appellant's submissions related only to the sentence of three and a half years imprisonment. The appellant was not represented at his trial, but counsel for him has not pursued this fact as a ground of appeal.

Turning to the facts as found by the trial Judge in his judgment of 30 November 1994, the Police executed a search warrant at the appellant's property. Forty-six "marijuana" plants were found growing in a taamu patch. The appellant admitted to the Police they were his but denied that admission when giving evidence in his defence, saying that the owner of the plants was unknown. H e also denied as his a "marijuana" plant on top of the kitchen next to his house. The Chief Justice found as a fact that all the plants belonged to the appellant. He accepted the evidence of Constable Alapeta Isaako who found the plants in the appellant's taamu patch and who said that there were 24 plants five feet tall and 23 other plants one foot tall.

The Police sent for analysis to the Institute of Environmental Science and Research Ltd at Auckland a sample of the plants, namely 23 small plants which a scientist measured at from 3-7 centimetres in height above the roots. No doubt these are the small plants referred to by the constable.

Mr Meredith for the appellant submitted that the appellant should have been sentenced only in respect of these 23 small plants sent for analysis and proved by the scientist's evidence to be cannabis plants of the genus cannabis sativa L, listed as prohibited in the First Schedule to the Narcotics Act 1967. We do not accept this submission. The Court was entitled to draw as a reasonable inference that all plants large and small found growing together and being cultivated by the appellant were of the same genus. The Police evidence that they were all "marijuana" plants was also relevant. Furthermore, the appellant at trial did not contest that the plants were all prohibited cannabis plants, relying, as he did, on his denial that they were his plants.

The next ground for the appeal was that, even if accepting that the appellant had cultivated 47 plants, the sentence of three and a half years imprisonment was nevertheless excessive.

This Court last year in Sonny Stehlin v. The Police (C.A. 13/93; 23 March 1993) upheld a sentence of two and a half years for cultivation of cannabis plants and a concurrent sentence of 12 months for possession. That case concerned 31 cannabis plants of varying heights growing on the appellant's property. In that case counsel for the respondent was disposed to concede that two and a half years imprisonment was "perhaps at the upper end of the range of permissible sentences for cultivation". This Court held,

"Nevertheless, the maximum penalty is seven years and at first sight, for as large a quantity as was cultivated here, we are not surprised at the two and a half years selected by the Chief Justice."

In another case, Police v. Pokati Tuu Faataui, the defendant was sentenced to two and a half years imprisonment for cultivation of 38 plants and a further six months imprisonment (cumulative) in respect of the cultivation of three other plants, making a total of three years imprisonment.

Miss Bailey for the respondent accepted that the sentence of three and a half years imprisonment is in the top end of the range for this type of offending but nevertheless did reflect the seriousness of the offence, having regard to it being the largest seizure of marijuana in Western Samoa to date.

The appellant is a married man living with his wife and children on the property where he also grows tomatoes on the taamu patch about 100 metres from his house. Only a little over a month prior to this offence of cultivation he was convicted of being in possession of cannabis and fined $200 to be paid forthwith, in default six months imprisonment. We place no reliance on this conviction and sentence for simple possession in considering the sentence on this conviction for cultivation of 47 plants, including 24 some five feet tall and 23 small plants in plastic containers indicating a continuing programme for growing cannabis.

Miss Bailey informed the Court that this type of offence is the fastest growing crime in Western Samoa and calls for a deterrent sentence. While the sentence of three and a half years imprisonment is the longest sentence yet imposed for the cultivation of cannabis, the Chief Justice undoubtedly considered a strong message had to be given that offending of this nature and to this extent would be sternly dealt with. The cultivation of cannabis in this quantity is at the root of illicit drug offending. The sentence was one open to the Chief Justice in all the circumstances. The appeal is dismissed.

We note that the appellant in this case by Notice of Motion in the Supreme Court sought leave to appeal against his sentences. Since the repeals made to the Judicature Ordinance Act 1961 by the Judicature Amendment Act 1992/1993 and by s.164K of the Criminal Procedure Act 1992/1993, which came into force on 16 February 1993, the appellant had a right of appeal against sentence, it not being one fixed by law, without leave. However, Notice of Appeal is required under Rule 27 of the Court of Appeal Rules 1961 and a copy of this Notice should be included in the Case on Appeal.

Solicitors:
Drake & Co., Apia, for Appellant
Attorney-General's Office, Apia, for Respondent