Police v Mailata [1999] WSSC 18 (17 September 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

TAULEAVE MAILATA
of Satapuala and Aufaga
Defendant

Counsel: Ms L. Tuala for the Prosecution
Mr H. Schuster for the Defendant

Sentencing Date: 17 September 1999

SENTENCING REMARKS OF WILSON J.

Tauleave Ma’ilata of Satapuala, you have been found guilty of two drug offences (possession of narcotics and dealing with narcotics) by me, as a judge sitting alone.

On 1^st February 1999 you knowingly had in your possession narcotics, namely cannabis sativa L. plants, in the form of one small packet of marijuana leaves. On the same date you dealt in narcotics namely cannabis substances in the form of one small packet of marijuana.

By the use of what the law calls an agent provocateur (self-appointed, I think) you, a person who holds a very public and not unimportant position at the market as being the one who operates and looks after the pool tables at a shop there, were minded to sell marijuana for $5.00 to a man who, it happened, was an employee of the Minister in charge of and responsible for the Fugalei Market. Immediately prior to the sale, you had the marijuana in your possession. The Minister’s employee had initiated the sale to you by asking you “for something” to which you replied “Yes”.

Each of the essential elements of each of the two charges was proved beyond reasonable doubt by evidence. That the substance in the accused’s possession and dealt with by him was marijuana was proven by the ESR Report (Exh.P1). The accused’s state of mind was proven by the tender of his caution statement (Exh.P2). I took special care in assessing the evidence because of the quasi-under-cover nature of the main prosecution witness’s activities. The tender and receipt of the caution statement had the effect of overcoming the necessity for the prosecution to produce to the Court what is often called “chain evidence” to link the substance said to have been in the accused’s possession (and sold by him) with the substance handed to the police and later analysed and found to be marijuana.

A bold submission was relied upon by Mr Schuster, counsel for the accused. He submitted that the accused could not be found guilty of either offence because the prosecution has not proved that the accused is not licensed to deal in the narcotic. If that submission were correct, it would be necessary for the prosecution in every case of possessing narcotics or dealing in narcotics not only to prove by evidence the ordinary elements of the offence, such as that the narcotic was marijuana, that the accused knew it was marijuana, and that the accused had it in his possession or dealt with it, as the case may be, but also to prove by evidence that the accused was not “entitled to import or export” the marijuana and that the accused was not “licensed to deal in that narcotic”, and that the marijuana was not “supplied for his use or for the treatment of some animal under his care, by a licensee or pursuant to the prescription of a licensee, authorised to supply or prescribe marijuana for that purpose”, and that his possession was not “for or on behalf of a person lawfully entitled to the possession” of that marijuana, and that his possession was not “permitted by the regulations” under the Narcotics Act 1967, and that he did not have the narcotic “as a sample or for analysis under the Food and Drugs Act 1967”, and that he was not “in the service of the Government” and that his possession was not “for the purpose of investigating an offence or alleged offence or the prosecution of any person”, and that he was not “lawfully in possession of the narcotic pursuant to an authority or supply granted or issued under section 8 or section 9” of the Narcotics Act 1967 [Narcotics Act 1967, s.7].

This submission is clearly without foundation. Just as the prosecution has the onus of disproving such “defences” as self-defence or provocation or intoxication or automatism in crimes of violence when such “defences” are raised on the evidence, then so does the prosecution carrying the burden of disproving statutory defences under s.7, when, and only when, such defences are raised on the evidence, e.g. if there is some evidence suggesting that an entitlement or license or authority or permit or the like was in existence. The key to this issue is that a statutory defence of the kind relied upon by the accused here must have been raised on the evidence. There was no evidence before me to the effect that (or tending to show that) the accused had a license to deal in the marijuana the subject-matter of these charges.

I therefore found the accused guilty of both charges.

Had the evidence established beyond reasonable doubt that this possession of (or this dealing in) marijuana was for a commercial purpose or that the motive was profit, that would have been an aggravating circumstance and I would, in accordance with sentencing principles, have found it necessary to send you to prison (for approximately 4 months) notwithstanding the fact that you are a first offender.

But, largely due to a forceful submission made by your counsel, Mr Schuster, and also due to a realistic and helpful submission made by Miss Tuala, for the Prosecution, (helpful to me as the sentencing judge and helpful to you as the person awaiting sentence), I am satisfied that no such aggravating circumstance has been proven to exist here.

I have read the pre-sentence report prepared by the Probation Service. I have heard your counsel’s submissions, which, as I have indicated, were helpful.

You are 30 years of age. You are married with two young children. You hold good employment positions. You carry a heavy responsibility in term of supporting your extended family. Although you have some substantial debts, you have indicated an ability to pay a monetary penalty.

Those notions of punishment known as deterrence and rehabilitation need emphasis here.

For the offence of possession, you are convicted without penalty.

For the offence of dealing, you are convicted and sentenced to be released on a bond in the sum of $500.00 to be of good behaviour for 1 year with a condition that you, during the period of the bond, pay to the Registrar of the Supreme Court the sum of $1,000.00 (for forwarding on to the appropriate Government Department) towards the costs of this prosecution, and that you be under the supervision of a probation officer, and that you obey his or her lawful directions.

JUSTICE WILSON