Police v Masame [2007] WSSC 92 (14 December 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

TAGALOA RUNI MASAME
male of Tulaele & Sapapalii Savaii.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L M Su’a for prosecution
R Papalii for accused

Sentence: 14 December 2007

SENTENCE

The charges

The accused appears for sentence after a defended trial on one count of possession of five marijuana branches and leaves, 48 marijuana seeds, and a half marijuana joint which carries a maximum penalty of seven years imprisonment as well as one count of possession of a glass pipe for the purpose of the commission of an offence against the Act which carries a maximum penalty of three months imprisonment or $200 fine or both such fine and imprisonment.

The offending

Based on information received from an informer on Friday night 13 January 2006, the police early the following morning first raided and searched a house at Vaitele and then the house of the accused at Tulaele. When the police entered the accused’s house, they found the accused asleep in an underground room on a rocking chair. After waking him up and telling him to turn on the light, the police searched the underground room whilst the accused was still present. They found five marijuana branches and leaves wrapped in a bed sheet under the mattress of the bed inside the underground room. The police also found a pipe on a table at a corner at the back of the room. As the police were walking back up the steps from the underground room, one of the officers found a half marijuana joint on the steps.

The accused

The accused, as it appears from the pre-sentence report, is a 31 year old male of Tulaele and Sapapalii. As it came out during the evidence given by the accused at the trial, he is married but has separated from his wife. He had a good education having graduated with an arts and crafts certificate from Tuasivi College in 1986. In 1988-1989 he became a Mormon missionary in the Philippines. When he returned to Samoa in 2000, he joined a musical bank where he was a singer. The accused is a talented musician.

As stated in the pre-sentence report, the accused is unemployed but at times he helps out with his brother who operates a mechanic workshop earning $100. The accused’s father told the probation service that his son depends on him and his wife for his daily needs. I find it difficult to reconcile this information with the fact that the accused lives at Tulaele in a beautiful European house with a garage next to it and the house is also surrounded with a beautiful concrete fence with iron posts at the top and there is also an iron gate that was locked with a padlock when the police arrived.

The testimonial from the Mormon bishop of the accused’s church states that the accused attends church services and is supportive of church programmes and activities. Since this incident the accused has shown remorse and there has been much change in his life. The testimonial from the pulenu’u of the accused’s village of Sapapalii is to similar effect. I must say that I am not satisfied that the accused is genuinely remorseful because as it appears from the pre-sentence report, he still maintained his innocence to the charges to the probation service.

Prior to this matter, the accused had pleaded guilty in the District Court to one charge of possession of an unlawful firearm and one charge of unlawful possession of ammunition. He was fined on both charges. Those charges arose from the same incident as the charges for which the accused is now appearing for sentence in this Court. Generally, it would be preferrable that in a case which gives rise to charges triable in the District Court and charges triable in the Supreme Court, all charges should be brought in the Supreme Court so that in the event of a conviction on all charges or some of them, the Court would be in a position to be aware of the gravity of the total offending for sentencing purposes. During the trial in this Court, it came out in the accused’s evidence that he has a previous traffic conviction which is unrelated to this matter. I would treat that previous traffic conviction as irrelevant for present sentencing purposes and consider the accused as a first narcotic offender.

Submissions by counsel

Counsel for the accused, as she was entitled to do, submitted a list of narcotic cases where this Court had imposed non-custodial sentences. She then pleaded in mitigation for a similar sentence, perhaps a monetary fine, to be imposed in this case. Counsel also referred to the fact that the accused is a first narcotic offender.

On the other hand, counsel for the prosecution seeks a custodial sentence. They emphasised that narcotic offences are the most prevalent in Samoa and there is a need for deterrence. Counsel also mentioned the risk that this type of offending could easily influence the Samoan youth into drug abuse. Counsel also referred to the quantity of marijuana substances found by the police in the house of the accused. It was also submitted for the prosecution that the accused had a commercial motive since the police searched the accused’s house on suspicion that the accused was distributing and selling drugs. It is true that according to the evidence at trial the police had such a suspicion. But I am not satisfied that the evidence established to the required standard that the accused had a commercial or financial motive for being in possession of the marijuana substances.

The decision

It is a cardinal fact of sentencing practice that the sentence to be imposed depends primarily on the circumstances of each case. Whilst normally narcotic cases have attracted custodial sentences, there have been a few narcotic cases where non-custodial sentences have been imposed. For many years now, the attitude of the Court has been to impose custodial sentences in narcotic cases because of the high prevalence of this type of offending unless there are exceptional circumstances which would justify a non-custodial sentence. This is consistent with the need for deterrence in this type of offending.

In this case, the only real mitigating feature is the fact that the accused is a first narcotic offender. On the other hand, there is not only the need for deterrence but the nature and quantity of marijuana substances found in the accused’s possession. I find the possession of 48 marijuana seeds to be of more concern than the possession of five marijuana branches and leaves. The reason is, it is from marijuana seeds that marijuana plants are grown. Marijuana plants, of course, produce leaves and more seeds from which more plants can be grown. As this case also proceeded to trial, there will be no discount for a guilty plea.

In all the circumstances, the accused is sentenced to four months imprisonment on the charge of possession of marijuana branches and leaves, 48 marijuana seeds, and half marijuana joint. On the charge of possession of a pipe from the purpose of the commission of an offence under the Act, the accused is sentenced to four weeks imprisonment. The two sentences are to be cumulative so that the total sentence the accused has to serve will be five months imprisonment.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution
Meredith & Ainuu Law Office