Police v Tamapua [1999] WSSC 4 (21 May 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

FAILOA TAMAPUA
of Moataa and Vaivase-uta
Defendant

Counsel: Mr G. Latu for the Informant
Defendant in person

Hearing Date: 3 May 1999
Sentencing Date: 21 May 1999

SENTENCING REMARKS OF WILSON J.

Failoa Tamapua, you are a 25 year old unemployed male with a de facto wife and five dependent children. After initially pleading Not Guilty, you subsequently pleaded Guilty to a drug offence called possessing narcotics. You now stand convicted of that crime which is a breach of s.7 & 18 of the Narcotics Act 1967.

I accepted your change of plea and I subsequently resolved a dispute of fact.

On 26th December 1998 at the Fugalei Market on a busy day, you were found to be knowingly in possession of several lots of marijuana. Two lots were in the form of joints or rolled cigarettes, (eight (8) and fourteen (14), making a total of twenty two (22) in number), and in the form of packets, and two lots in the form of a bag and a sack which were filled or partly filled with leaves and some branches of marijuana.

In a police interview and when asked about your intentions in having this marijuana in your possession, you admitted that you “wanted to sell out and earn money for developing (your) family”.

During the hearing of the dispute of facts, and during some skilful cross examination by the prosecutor, Mr George Latu, and having first contended that you had the marijuana in your possession for your own personal use (for you to smoke it), you admitted that some of the marijuana (the joints) was for the purpose of sale and you admitted that the rest (in the form, mostly, of leaves) was to be taken by you to Savaii. You said it was to be used as a form of barter (or “money’s worth”), that is to say, as a reward for jobs being done for you or in order to secure goods and services instead of money.

People who are in possession of drugs for a commercial purpose (and when they are motivated by profit) take a very serious step, and they can expect stern punishment.

In your case, an aggravating circumstance is to be found in the commercial purpose or profit motive, which has been proven beyond reasonable doubt.

I have read the pre-sentence report prepared by the Probation Service, and a number of alterations have been noted. I listened to what you said to me prior to my deciding finally what sentence I should impose.

You said to me in court today that you are very remorseful for what you have done. You have said that you will never commit this offence again. You told me about your children, and you are remorseful because of that. You told me that your children will miss you if you are sent to prison. You told me that there is yourself and your mother and your de facto wife and the children, and that you are the only man to take responsibility for the family.

I can show some (but not much) leniency to you (I can show you a little mercy) because of one thing. I am referring to your plea of guilty that was entered, but somewhat late in these proceedings. You did not save much of the cost of a trial because, as it happened, there was a dispute of facts, which needed to be heard and determined. And, despite what you have said to the probation officer and to me today, I don’t see you as being very remorseful. You are sorry for your family’s sake, yes, and you are no doubt worried for yourself. But I do not think that you feel very sorry about the wrong that you did. I nevertheless give you a discount of 15% for your late plea of guilty.

I regret the fact that your imprisonment will cause stress, some hardship and worry for your children, as well as for your de facto wife. But I cannot, in the public interest, refrain from ordering imprisonment. This is not one of those rare case in which hardship to dependents should lead to imprisonment not being ordered.

Drug crimes are often said to be victimless crimes. But your crime is an example of how drug crimes can sometimes have victims. Your children are the innocent victims of your crime. You should have thought properly about your de facto wife and your children before you committed this serious narcotics offence. In so far as your motive was to earn quick money “to help your family”, your actions were misguided, because you have ended up hurting them.

I cannot extend leniency to you (and show mercy to you) on account of you being a first offender or a person of previous good character. You see, you have numerous previous convictions and one in 1995 for a drug offence like this one. For that drug offence you were imprisoned. You do not seem to have been deterred by that light prison sentence.

The sentence of the court is that you be imprisoned for seven (7) months.

JUSTICE WILSON