Police v Enelagi [2007] WSSC 95 (17 December 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

VAIAO ENELAGI
male of Fasito’o-uta.
Accused

Editor's note: Sentence by Sapolu CJ

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

Sentence: 17 December 2007

SENTENCE

The charges

The accused is appearing for sentence on four charges, namely, one of cultivation of prohibited plants which carries a maximum penalty of seven years imprisonment, one of possession of narcotics which carries a maximum penalty of seven years imprisonment, one of being armed with a dangerous weapon which carries a maximum penalty of one year imprisonment, and two charges of being in possession of an unlawful weapon each of which caries a maximum penalty of three months imprisonment. To all charges, the accused pleaded guilty at the earliest opportunity after receiving legal advice.

The offending

On Thursday night 23 August 2007 at around 11:30pm, the accused after an argument with his family, picked up a pistol and threatened some members of his family. This resulted in his family calling the police. When the police arrived at the accused’s place at Lepale, Fasitoo-uta, the accused’s family were hiding and they slowly came from behind the trees where they were hiding. Soon after, the accused with another man arrived on a vehicle. At that time a person called out to warn the police officers that he accused was armed with a weapon. A police officer ten approached the vehicle in which the accused was inside to search it. As the police officer was during so, he noticed the tip of a firearm inside the accused’s pocket and immediately pulled it out. The accused responded and they struggled over the gun. The officer twisted the accused’s right arm before removing the gun from him. It was a .38 pistol revolver. It was loaded. The accused was then arrested and brought to the Apia police station.

On Friday right 24 August 2007 at around 2am, the police again went to the accused’s house at Lepale, Fasitoo-uta, in response to a phone call which reported that the accused was in possession of firearms and marijuana. The police searched the accused’s premises in the presence of his wife. They found the following marijuana plants: twenty plants each of which was growing in a different barrel, twenty one plants growing in a tub, two plants each of which was growing in a different cooking pot, one plant growing in a gallon, five plants each of which was growing in a different biscuit tin, and six plants growing on the ground. So there were fifty five and not fifty four marijuana plants in total. About twenty three of the plants ranged from 20" to 33" in height and the rest ranged from 2" to 19". So more than half of the plants were more than a one foot in height.

The firearms found by the police during their search of the accused’s premises on Friday night 24 August 2007 were a Cal 28 automatic pistol and a MC-01229.

The accused

The accused is a 50 year old male. He has a wife and six children. He works on his family’s plantation from which he earns $100 to $150 a week to support his family. As it appears from the pre-sentence report, the accused told the probation service that he had been advised by someone that by planting and selling marijuana, he would earn a lot of money. The accused expected that with that extra money he would have earned from selling marijuana, he and his family would be able to meet their expenses. So it is plain that the accused cultivated the marijuana plants with which he has been charged for a commercial purpose.

The testimonials from the pastor of the accused’s church and the pulenu’u of his village show that the accused is a shy and reserved person. However, he has a weakness and that is the consumption of alcohol. In fact as it appears from the pre-sentence report, the accused is in the habit of drinking and on the first night that the police came to his house he was intoxicated.

The accused has previous convictions for various offences. The last of these previous convictions was for possession narcotics in 2000. This is the only previous conviction to be taken into account as relevant for the purpose of sentencing in this case.

Aggravating features

The number of marijuana plants grown by the accused shows that this was not an insignificant but a large scale operation. It was plainly for a commercial purpose. In Godinet v Police [1995] WSCA 11, Bisson J in delivering the judgment of the Court of Appeal said that those people who cultivate marijuana on a large quantity for the purpose of selling them are at the root of illicit narcotic offending. They are responsible in a major way for the spread of marijuana offending within the community.

It is also of serious concern that the accused was in possession of unlawful firearms. In some of the narcotic cases that have come before the Court, cultivators of marijuana or suppliers of narcotic were also found by the police to be in possession of firearms. The danger of firearms needs no explanation. In this case, the accused also used a firearm to threaten members of his family who had to take to hiding themselves.

Another aggravating feature is the high prevalence of narcotic offences.

Mitigating features

The only mitigating feature in this case is the accused’s plea of guilty at the earliest opportunity after receiving legal advice.

The personal circumstances of an accused are generally irrelevant for sentencing in narcotic cases and if relevant are to be given little weight: Police v Faalili Tovio [2002] WSSC 23; Police v Taseni Olo [2005] WSSC 34; Police v Poe Poe [2007] WSSC 27. In this case, the personal circumstances of the accused earlier referred to are not relevant for the purpose of sentencing. But if they had been relevant, I would give them little weight.

Sentences in comparable cases

It is regrettable that some of the past cases on cultivation of marijuana have not been reported because the modern technology provided by PacLii only became available in the recent past.

In the case of Police v Stehlin [1993] WSSC 28, the accused was convicted of cultivation of 31 marijuana plants after a defended hearing and sentenced to 2½ years imprisonment. On appeal against sentence, the appeal was dismissed by the Court of Appeal. In the case of Godinet v Police [1995] WSCA 11, the Court of Appeal dismissed an appeal against a sentence of 3½ years imprisonment imposed by this Court for cultivation of 47 marijuana plants after a defendant hearing. In Godinet v Police the Court of Appeal also referred to the unreported case of Police v Pokati Tuu Faataui where the accused was sentenced to a total term of 3 years imprisonment on two charges of cultivation which involved 41 marijuana plants.

So the sentencing range for cultivation of marijuana on a large scale after a defended hearing has been from 2½ years to 3½ years imprisonment. In the present case, the accused has pleaded guilty to cultivation of 55 marijuana plants.

The decision

The modern approach to sentencing is to start with the sentencing process by setting a starting point. This process was explained by the New Zealand Court of Appeal in R v Davis [2005] NZCA 246 where Roberson J in delivering the judgment of the Court (comprising of Baragwanath and Heath JJ) said:

"In setting the starting point the fundamental focus is on the actual offence and the involvement of the particular person in that offending. We use the term ‘starting point’ in the way it was defined by this Court in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [8]:

‘"The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features relating to the offender. Put another way, a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial’ (R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 at para [24]’"

In Attorney General v Matalvea [2007] WSCA 8, our Court of Appeal said at para 15:

"In order to compare this case with others we adopt the now conventional approach of identifying a starting point for the conduct, viewed objectively without reference to Mr Matalavea’s personal circumstances before turning to those features as well as others relied on in mitigation. That is the practice adopted in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA)".

I should add here that in Police v Faulkner [2007] WSSC 80 this Court also adopted and applied the approach set out in R v Tauaki.

Having regard to the aggravating and mitigating features in this case, I will then take as starting point for sentence for the charge of cultivation of prohibited plants 4½ years. I will take into account the mitigating and aggravating features relating to the accused. In this connection, the only mitigating feature relating to the accused would be the accused’s plea of guilty at the earliest opportunity after receiving legal advice. I will give the accused a 1/3 discount so that the sentence will be reduced to 3 years. I give no credit for the accused’s personal circumstances. I will also not increase the sentence by reason of the accused’s previous conviction for possession of narcotics in the year 2000 for which he received a suspended sentence of 3 months imprisonment. The accused is therefore sentenced to 3 years imprisonment on his guilty plea to the charge of cultivation of prohibited plants.

On the charge of possession of narcotics, the accused is sentenced to 2 years and 9 months imprisonment. On the charge of being armed with a dangerous weapon, namely, a 38 pistol revolver which was loaded the accused is sentenced to 3 months imprisonment. On each of the two charges of being in possession of an unlawful weapon, the accused is sentenced to one month imprisonment.

The sentences for the charge of possession of narcotics and the two charges of possession of an unlawful arm are to be concurrent to the sentence of 3 years imprisonment for the charge of cultivation of prohibited plants. But the sentence of 3 months imprisonment for the charge of being armed with a dangerous weapon is to be cumulative. So the accused will serve a total sentence of 3 years and 3 months imprisonment. The period of time during which the accused was remanded in custody is to be deducted from that total sentence.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution
Toa Law