Police v Poe Poe aka Isalei Poe [2007] WSSC 27 (26 April 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

POE POE aka ISALEI POE
male of Faleatiu.
Accused

Counsel: L M Sua for prosecution
Accused in person

Sentence: 26 April 2007

Sapolu CJ

SENTENCE

The charge

The accused is charged under ss. 7 and 18(2)(a) of the Narcotics Act 1967 with possession of narcotics, namely, marijuana substances, which carries a maximum penalty of seven years imprisonment. To the charge the accused entered a guilty plea at the earliest opportunity.

The offending

In the early hours of Wednesday morning, 18 March 2007, around 2:55am, the police attended a call from an off-duty police officer about a man suspected of being in possession of marijuana selling those marijuana at the Fugalei Market. When the police arrived at the Market, the accused appeared to be in a state of intoxication. The police informed the accused of their suspicion, apprehended him, and brought him to the Apia Police Station. When the police searched the accused at the station, they found on him seventeen bullets of marijuana wrapped in a foil and seventeen branches of marijuana. At 8am in the morning when the police interviewed the accused after administering the usual caution, the accused admitted to the offence. The accused told the Court that the branches of marijuana found on him by the police were small in size and he demonstrated their size to the Court.

I find what the accused told the Court that he was not in possession of the marijuana substances for the purpose of selling them to be dubious. I also find what the accused told the probation service, as it appears in the pre-sentence report, to be incredible. He told the probation service that he found the marijuana substances with which he has been charged lying next to the road in his village of Faleatiu which is many miles away from Apia and the Fugalei Market. He then hid the marijuana substances in his pocket. This was apparently in the afternoon. Later at around 2:55am of the following morning, he was found still in possession of the same marijuana substances at the Fugalei Market. I accept that the accused was in possession of these marijuana substances at the Fugalei Market for the purpose of selling them.

The accused

From the pre-sentence report, the accused would now be 26 years and 9 moths old. He works as a carpenter. He is a first offender.

Mitigating circumstances

The accused’s plea of guilty to the charge against him at the earliest opportunity is a mitigating circumstance. However, it is clear that the police found the marijuana substances on the accused when they searched him at the Apia Police Station. The fact that the accused is a first offender entitles him to some leniency.

Aggravating circumstances

Apart from the seriousness of the offence for which the accused is appearing for sentence, marijuana related offences are by far the most prevalent type of offending in the community. I am also satisfied from all the circumstances that the real purpose for which the accused was in possession of these marijuana substances at the Fugalei Market was to sell them. I do not accept the explanation given by the accused to the probation service and his denial to the Court that he was not in possession of these marijuana substances for the purpose of selling them. The quantity of marijuana substances found in the possession of the accused was also not insignificant.

The decision

I accept the submission made by counsel for the prosecution based on Police v Faalili Tovio [2002] WSSC 23 and Police v Taseni Olo [2005] WSSC 34 that in narcotic cases the personal circumstances of the accused are to be given little weight. I also accept the submission by counsel for the prosecution that the previous custodial sentences imposed by the Court in narcotic cases demonstrate the need for deterrence in this type of case. Counsel for the prosecution also correctly pointed out that marijuana related offences are the most prevalent types of offence within the community. Counsel also submitted that the accused was in possession of the marijuana substances for a commercial purpose, that is, to sell them to earn money. Implicit in this submission is the fact that the accused would have made those people to whom he would have sold his marijuana liable for the offence of possession of narcotics. Counsel also referred to the quantity of marijuana substances found in the account’s possession. She then referred to the accused’s plea of guilty at the earliest opportunity and the fact that he is a first offender as the mitigating factors in favour of the accused. Counsel also helpfully referred to the sentences imposed in some of the previous case of possession of narcotics.

I must say that counsel for the prosecution has referred to all the considerations which are relevant for the purpose of sentencing in this case. No discourtesy is therefore intended if I am to impose a sentence which is less than the sentence recommended by counsel. The reason for this is the range of sentences which have been imposed in previous narcotic cases in similar circumstances. In this connection, I should, perhaps, refer to the case of Stehlin v Police [1993] WSCA 5 where this Court imposed a sentence of 2½ years imprisonment on the accused on the charge of cultivation of 31 marijuana plants. On appeal, the Court of Appeal, even though it dismissed the appeal, observed that the sentence imposed by this Court was on the high side. I accept that Stehlin’s case was 13 years ago and it was a case of cultivation. But I am not satisfied that the passage of time would warrant a marked change at this point in time in the level of sentences imposed for this type of offence. Decisions of the Court of Appeal provide helpful and useful guidance and are, of course, binding on this Court.

Having said all of that, I am conscious that the community in general views marijuana related offences quite seriously. This appears from some of the narcotic cases in the past where the accused persons were banished from their villages for possession or cultivation of marijuana before they appeared in Court for sentencing.

In this case, having regard to the mitigating and aggravating circumstances as well as the other considerations referred to, the accused is convicted and sentenced to 7 months imprisonment. The number of days during which the accused has been remanded in custody is to be deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution