Police v Lafi [2008] WSSC 44 (14 July 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND

SEMISI LAFI
male of Vaitele-uta.
Accused

Counsel: P Chang for prosecution
M V Peteru for accused

Sentence: 14 July 2008

SENTENCE BY SAPOLU CJ

The charges

1. The accused appears for sentence on five charges. These are for (a) possession of an unlawful weapon, namely, a 25 semi automatic pistol which carries a maximum penalty of 3 months imprisonment or $200 fine or to both such fine and imprisonment, (b) possession of narcotics, namely, five marijuana seeds and an envelope containing dried marijuana leaves which carries a maximum penalty of 7 years imprisonment, (c) possession of utensils, namely, ten plastic bags (of specified sizes) and two straws for the purpose of the commission of an offence against the Narcotics Act 1967 which carries a maximum penalty of 3 months imprisonment or a fine of $200 or to both such fine and imprisonment, (d) possession of narcotics, namely, nineteen marijuana seeds which carries a maximum penalty of 7 years imprisonment, and (e) possession of narcotics, namely, sixty six marijuana seeds which carries a maximum penalty of 7 years imprisonment.
   
2. In other words, the substances with which the accused is charged for being in unlawful possession are one semi automatic pistol, ten plastic bags, two straws, marijuana leaves and ninety marijuana seeds.
   
3. The accused had pleaded not guilty to all the charges against him but after somewhat prolonged proceedings he was found guilty on all charges.
   

The offending

4. The facts of this case are set out in detail in my judgment delivered on 23 June 2008. I do not need to repeat all of those facts for the purpose of sentencing.

5. Essentially, in the early morning of 6 February 2006 a team of about ten police officers armed with a search warrant went to Vaitele-uta to search the house of the accused for narcotics. The accused’s house is a two storey building.

6. The police found in the bedroom of the accused and his wife on the ground floor a non-working 25 semi automatic pistol, an envelope containing dried marijuana leaves, five marijuana seeds, and plastic bags together with two straws which contained powder-like stuff. This powder-like stuff was later shown upon scientific analysis to be traces of methamphetamine which is a narcotic.

7. When the police searched the top floor of the accused’s house, they found on a bed in a room described by the accused as the guest room sixty six marijuana seeds. When the police searched the bedroom next to the guest room, they found more plastic bags which also contained powder-like stuff. This powder-like stuff was later shown upon scientific analysis to be traces of methamphetamine.

8. The police also found in a rubbish bin in the sitting room on the ground floor of the accused’s house nineteen marijuana seeds.

9. The accused said in evidence that he and some of his friends used to smoke marijuana in his house. The seeds found by the police are from the marijuana that he smokes. Nothing else is known about the traces of methamphetamine or "ice" found inside the plastic bags and the two straws except what the police said in evidence that the accused had told them the straws were used for consuming "ice".

The accused

10. The accused is a 50 year old male of Vaitele-uta. He is married with four grown up children.

11. As it appears from the pre-sentence report, the accused had a good employment career which took him through to becoming the chief executive officer of the British American Tobacco Company Ltd in Samoa which position he held until he retired in 2003 upon being diagnosed with diabetes. The medical report from the accused’s doctor shows that the accused suffers from diabetes and is currently on regular anti-diabetic medications.

12. The pre-sentence report also shows the accused to be a kind and loving man.

13. A testimonial from the pastor of the accused’s church, the Voice of Christ, states that the accused was to be given the position of License Minister in the Church early this month.

14. The accused is also a first offender.

15. The accused’s personal circumstances were referred to in counsel’s plea in mitigation and are also set out in the pre-sentence report.

16. With regard to the personal circumstances of the accused, this Court stated in Police v Faalili Tovio [2002] WSSC 23; Police v Taseni Olo [2005] WSSC 34; Police v Poe Poe [2007] WSSC 27; and Police v Vaiao Enelagi[2007] WSSC 95 that ordinarily the accused’s personal circumstances are irrelevant when sentencing for narcotic offences. However, in this case, I have decided to take into consideration the fact that at the age of 50 years the accused is a first offender.

Sentences in recent comparable case

17. In the case of Police v Fuifui Etuale [2005] WSSC 20, the accused, a first offender, after a plea of guilty to possession of 252 small plastic packets of dried marijuana leaves, two marijuana joints, a small shopping bag full of marijuana leaves, a pillow case containing 25 marijuana branches, and a newspaper wrapping containing loose marijuana leaves and seeds was sentenced concurrently to 15 months imprisonment. In that case there was clear evidence that the accused was in possession of the 252 packets of dried marijuana leaves for a commercial purpose.

18. In the case of Police v Taseni Olo [2005] WSSC 34, the accused, a first narcotic offender, after a plea of guilty to possession of loose dried marijuana, forty four small plastic packets of dried marijuana leaves, and 610 marijuana seeds was sentenced concurrently to 2 years imprisonment. There was clear evidence in that case that the accused was in the process of selling the marijuana substances in his possession when caught by the police.

19. In the case of Police v Misipalauni Tuala [2005] WSSC 35, the accused, a first narcotic offender, after a plea of guilty to possession of two small plastic packets of dried marijuana leaves and 1,200 marijuana seeds was sentenced concurrently to 2 ½ years imprisonment.

20. In the case of Police Viliamu Magalogo [2006] WSSC 18, the accused, a first offender, after a plea of guilty to possession of a pipe for the purpose of the commission of an offence against the Narcotics Act 1967 and 297 marijuana seeds was sentenced concurrently to 14 months imprisonment.

21. In the case of Police v Tagalo Runi Masame [2007] WSSC 92, the accused, a first offender, was found guilty of possession of five small marijuana branches, a small quantity of dried marijuana leaves, a half marijuana joint, forty eight marijuana seeds, and a glass pipe for the purpose of the commission of an offence against the Act. The accused was sentenced to 5 months imprisonment.

22. In the case of Police v Taai Taai [2008] WSSC 38, the accused who has a long history of previous convictions, including a previous conviction for possession of narcotics in 2001, over a period of seventeen years was a prisoner at the material time. He entered a not guilty plea but changed his plea to guilty on the date of the trial. He was charged with possession of 22 marijuana seeds and was sentenced to 8 months imprisonment.

The decision

23. The Court’s attitude towards sentencing in narcotic cases is now so plain and clear that I do not need to repeat it here or to remind myself about it. The Court’s sentencing policy in this area has been stated in many previous cases.

24. For this case, I have decided to apply the totality principle by considering the total gravity of the offending for determining the appropriate overall sentence.

25. For the charge of possession of a 25 semi automatic pistol which does not work the accused is sentenced to one month imprisonment; for the charge of possession of five marijuana seeds and an envelope containing dried marijuana leaves, the accused is sentenced to 3 months imprisonment; for the charge of possession of ten plastic bags and two straws for the purpose of the commission of an offence against the Act, the accused is sentenced to 6 weeks imprisonment; for the charge of possession of nineteen marijuana seeds, the accused is sentenced to 4 months imprisonment; and for the charge of possession of sixty six marijuana seeds; the accused is sentenced to 7 months imprisonment.

26. Except for the sentence of 3 months imprisonment for the charge of possession of five marijuana seeds and an envelope containing dried marijuana leaves, all other sentences are to be made concurrent to the sentence of 7 months imprisonment for the charge of possession of sixty six marijuana seeds. The sentence of 3 months imprisonment for possession of five marijuana seeds and an envelope containing dried marijuana leaves is then to be made cumulative to the sentence of 7 months imprisonment.

27. The total sentence to be served by the accused is, therefore, effectively to be 10 months imprisonment.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia, for prosecution
M V Peteru Law Firm