Police v Olo [2005] WSSC 34 (2 December 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TASENI OLO aka PENEUETA OLO
of Vaitele-fou and Fagamalo, Savaii.
Accused

Counsel: K Koria for prosecution
R Papalii for accused

Sentence: 02 December 2005

SENTENCE

The charges

The accused is appearing for sentence on two charges of possession of narcotics under ss.7 and 18(2) (a) of the Narcotics Act 1967. These two charges relate to: (a) possession of one small plastic packet of dried marijuana leaves, marijuana leaves wrapped in a white paper, and a pocket containing 610 marijuana seeds, and (b) possession of thirty six small plastic packets of dried marijuana leaves contained in a shopping bag and seven small plastic packets of dried marijuana leaves contained in a woven basket. Each of the two charges carries a maximum penalty of seven years imprisonment. The accused has pleaded guilty to both charges.

The offending

On Tuesday morning, 27 September 2005, the accused went to his mother’s home at Vaitele-fou with marijuana to sell to the people of Vaitele-fou. After some time the accused returned to his home which is behind his mother’s home to sleep. At that time police officers arrived and searched the accused’s home. During the search the police found inside the accused’s home a small plastic packet of dried marijuana leaves, loose marijuana leaves wrapped in paper and a plastic packet containing 610 marijuana seeds. The police also found $350 inside the accused’s room and the accused admitted to the police that the money was the proceeds from the sale of marijuana substances. The prosecution has asked the Court for an order for that money to be forfeited to the government. I will deal with this issue later.

After searching the accused’s home the police searched his mother’s home. The police found in the home of the accused’s mother a shopping bag containing thirty six small plastic packets of marijuana leaves, a woven basket containing another seven small plastic packets of marijuana leaves, and $65 cash.

The accused admitted to the police that he owned these marijuana substances and was selling them. It is, therefore, clear that the accused is a dealer in marijuana substances and that he was in possession of these marijuana substances for a commercial purpose, namely, for sale to members of the public to earn money. It is, however, not clear whether the accused was in possession of the marijuana seeds for the purpose of sale or for the purpose of planting and then harvesting and selling them in small plastic packets when the marijuana plants from the seeds are mature. Marijuana plants of course grow from marijuana seeds. Whichever of the two purposes was the accused’s true purpose with regard to the seeds, both purposes contain a commercial motive.

Accused

The accused is a 38 year old male of Vaitele-fou and Fagamalo, Savaii. He has a de-facto wife with two children. He is also a planter. His wife, children and elderly mother depend on him for their maintenance and upkeep.

The testimonials from the pastor and pulenu’u of the accused’s village of Vaitele-fou show the accused to have been a person of good character. The accused’s sister also told the probation service that she has never seen or heard the accused using marijuana and that this offence is out of character. The accused, himself, told the probation service that this is the first time he has been in possession of marijuana and that he was selling marijuana to earn money.

With regard to the personal circumstances of the accused, I am in respectful agreement with what Cooper J said in Police v Faalili Tovio [2002] WSSC 23 that ordinarily an accused’s personal circumstances carry very little weight in sentencing for narcotic offences. In Vea v Rex [2004] TOCA 7, the Tongan Court of Appeal comprising of Burchett, Tompkins and Salmon JJ also said:

“The New Zealand Court of Appeal has also made it clear on numerous occasions that personal circumstances are generally irrelevant when sentencing for drug offending.”

Mitigating factors

I accept the submission by counsel for the accused that the accused’s plea of guilty, remorsefulness, and the fact the accused is a first narcotic offender are factors which are relevant to mitigation of penalty.

Aggravating factors

It is clear that the accused’s purpose for being in possession of marijuana substances was a commercial one. He was also in possession of a substantial quantity of marijuana in terms of the 610 marijuana seeds found in his possession. He was also in possession of a total of forty four small plastic packets of marijuana leaves and some marijuana leaves wrapped in paper. The quantity of marijuana substances found in an accused’s possession is a most significant factor in determining the nature and level of the sentence to be passed.

I should also mention that marijuana related offences such as possession and cultivation are by far the most prevalent kind of offence in the community. They are well ahead of any other kind of offence that comes before this Court. Even though recently there may have been a slight reduction, marijuana related offences are still by far the most prevalent within the community. Deterrent sentences have therefore imposed for his kind of offence.

Forfeiture

Counsel for the prosecution applied for an order that the sum of $350 which the accused admitted to the police was the proceeds from the sale of marijuana substances be forfeited to the government. I am of the view the Court does not have jurisdiction to make such an order. This is a gap in the present law which the appropriate authorities would need to consider.

Section 25 of the Narcotics Act 1967 makes provision for the forfeiture upon conviction of all articles in respect of which a narcotic offence was committed and found in the possession of the accused. “Articles” as used in that provision clearly do not include money. In New Zealand, s.32(3) of the Misuse of Drugs Act 1975 makes provision giving the Court power to order the forfeiture of money in specified circumstances upon conviction of an accused for an offence under s.6 of the Act. Our Narcotics Act 1967 contains no such provision.

Perhaps I should also note in passing that New Zealand has a Proceeds of Crime Act 1991 but we do not have similar legislation. The appropriate authorities may also need to consider this matter.

The decision

As there are two charges of possession of narcotics, the Court will look at the totality of the offending in passing sentence. Having regard to the mitigating and aggravating factors as already mentioned, the accused is convicted of each of the two charges against him and sentenced to two years imprisonment on each charge. Both sentences to be concurrent.

CHIEF JUSTICE