Police v Tuala [2005] WSSC 35 (5 December 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

MISIPALAUNI RESITALA TUALA
of Tafagamanu Lefaga, Fugalei and Vailele-uta
Accused

Counsel: K Koria and P Chang for prosecution
Accused in person

Sentence: 05 December 2005

SENTENCE

The charges

The accused is appearing for sentence on three counts of possession of narcotics laid by the police under ss. 7 and 18 (2)(a) of the Narcotics Act 1967. In those three counts the accused is charged that on Friday, 28 October 2005 at the Apia police station he was found in possession of:

(a) 1,200 marijuana seeds, (b) a small plastic packet containing dried marijuana leaves, and (c) another small plastic packet containing dried marijuana leaves. Each of the charges carries a maximum penalty of seven years imprisonment. The accused pleaded guilty to all three charges at the first opportunity.

The offending

As it appears from the pre-sentence report prepared by the probation service, the accused told the probation service that on Friday, 28 October 2005 he came for his usual sign in at the office of the probation service. The accused had been convicted on 10 October 2005 in the District Court of the offence of burglary and was sentenced to eighteen months probation and ordered to carry out one hundred hours of community service. Before he came to sign at the office of the probation service on the day in question, the accused went to the market at Fugalei. There he bought the marijuana substances with which he has been charged. He later caught a bus to come to the office of the probation service. The bus stopped in front of the police station for the accused to get off. As the accused was getting off the bus, one of the plastic packets of marijuana substances which was in his pocket fell out. This small packet was seen by a police officer who was waiting to get on to the bus. The police officer picked up the small packet and saw that it contained marijuana substances. The police officer then stopped the accused and took him inside the police station where he was searched. Two other packets containing more marijuana substances were found in the accused’s pocket.

The accused

The accused is a 23 year old male who is single and unemployed. At the time of these offences he was no longer living with his parents but living with a friend at Vailele-uta. His father told the probation service that the accused was good when he was young but he has changed since he started drinking.

Mitigating factor

The only factor I can take into account in mitigation of penalty is the accused’s plea of guilty to the charges.

Aggravating factors

The accused was convicted of burglary in the District Court on 10 October 2005 and sentenced to eighteen months probation. A few days later on 28 October he was found in possession of marijuana substances as he was on his way to sign in at the office of the probation service. This is not a sign of a person who is remorseful.

The quantity of marijuana seeds found on the accused is also quite substantial. It is not clear what the accused intended to do with these seeds but it is needless to say that marijuana plants grow from marijuana seeds. The quantity of marijuana substances found in an accused’s possession is a fundamental factor to be taken into account for the purpose of sentencing in narcotic cases of this kind.

I have also said in numerous previous narcotic cases that marijuana related offences are by for the most prevalent kind of offence in the community and have become a matter of serious concern to the Courts and the community. In consequence, custodial sentences have generally been imposed for this kind of offence not only for the purpose of retribution but deterrence.

The decision

Having regard to the mitigating and aggravating circumstances as set out, the accused is convicted of the charge which involves possession of 1,200 marijuana seeds and sentenced to 2½ years imprisonment. On each of the other two charges he is convicted and sentenced to six weeks imprisonment. All these sentences are to be concurrent and are to commence from 14 November 2005 when the accused was first remanded in custody.

CHIEF JUSTICE