Police v Viali [2009] WSSC 75 (15 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TANIELU VIALI, male of Vaimoso and
Defendant

Counsels: Ms L. Taimalelagi for the prosecution
Mr G. Latu for the defendant

Sentence: 15 July 2009

SENTENCES

The defendant has pleaded guilty to a charge of possession of narcotics which carries a maximum penalty of 7 years in prison. The quantity found on him was about half a joint of marijuana and the summary of facts indicates that at about 10pm on the night of 1 June this year, the defendant while intoxicated was caught by police officers in civilian clothes smoking marijuana on the seawall opposite one of the local nightclubs on Main Beach Road. When he was stopped and searched the marijuana was found in one of his pockets.

The defendant is a 43 year old teacher, teaching at a prominent local college. Because of this, name suppression was granted by the court when this matter was first called and that order currently remains in force. The police however have applied to lift that order and have filed extensive submissions in that regard citing in particular the recent Court of Appeal decision in Police v Puni (unreported) 29 November 2007, CA 14/2006 in which the relevant principles and approach to be taken are laid down. I am in full agreement with the submissions of the Attorney General on behalf of the police and there is no justifiable basis upon which name suppression should continue in this case especially given the outcome to be achieved below. As conceded by defendants counsel recent cases against a number of high profile lawyers have not received name suppression, there is no reason why protection should continue to extend to the defendant. Accordingly the name suppression order in respect of the defendant is lifted but the media would be well advised to report correctly the outcome of these proceedings, something that they have not always done in the past.

The aggravating factors of the offending are first and foremost that this is a drug offence and the courts policy in relation to drug offending is well known by now. Because of its seriousness and prevalence in our community imprisonment is the normal punishment and only in exceptional cases will a different penalty be considered. And the court will be especially vigilant in cases involving dealers, growers and distributors of marijuana or other narcotics. The penalties for them would be markedly sterner.

The defendant here is not in any of those categories and his possession was not for any commercial purpose, I am satisfied it was for personal consumption only. I also note the quantity found on the defendant was small. It is not "miniscule" as described by his counsel but I accept it was small being only half a joint. Considering those matters imprisonment is not in my view an appropriate penalty to impose in this case. The question is what do I do with this defendant.

In mitigation, defence counsel points to the fact that his client is a first offender, that he pleaded guilty at the earliest opportunity which has saved the time and valuable resources of all concerned which is as good an expression of remorse as anything, and the fact that his client was out celebrating the independence holidays after a long day of village and other activities. Counsel seeks a section 104 discharge without conviction based on the fact that the defendant's employment will be jeopardized if not severed by entry of a conviction. This would also have a long term effect on future employment prospects considering the nature of his chosen profession. The defendant has been teaching for some 20 odd years and this is all he knows how to do. His position as assistant principal at a prominent college underscores his ability and no doubt value to the community. Counsel says this is a case of a man who has made a mistake which he will not repeat.

The application of section 104 of the Criminal Procedure Act 1972 was recently canvassed in Attorney General v Vaai [2009] WSSC 48 where the court also noted the relevance of the courts power under section 104(6) to order payment of inter alia costs and compensation. Counsel's application is based on s.104 (1) (b) and he says that conviction would be a hardship out of proportion to the particular circumstances of the offending. It is also relevant to the exercise of the courts power under s.104 that s.104 (5) decrees a discharge under s.104 "shall be deemed to be an acquittal", which means an acquittal for all purposes.

I accept defence counsels submission that conviction of this defendant considering the particular circumstances of his offending and given what he does for a living would be a hardship out of proportion to the circumstances of the offence. And that such a conviction would have an ongoing effect not only on his current employment but prospects of future employment. Teachers are in short supply not only in church schools but in all schools in this country. We can never have enough of them and the loss of one as capable as the defendant would be a loss to the profession as a whole.

I will grant the application and invoke the courts powers under s.104 (1) (b) but do so on the very clear understanding that the defendant appreciates this is a first and last chance. That if he comes back before any court on narcotics or narcotics related charges he should have no doubt about the penalty that awaits him. There are many legal ways to celebrate other than using prohibited narcotics. He can go to the movies and watch "Lesbian Vampire Killers" which the censor says is good wholesome adult entertainment far more appropriate than inspirational true life stories like that of world acclaimed gay rights activist Harvey Milk a story that is freely available in cyberspace. Someone should tell the censors office about a little thing called "the internet".

I do not think I need to say anything further Tanielu. It should be clear involvement in narcotics and where it can lead you and I have tried to stress there is only one likely future penalty should you reoffend in this manner and that would be one of imprisonment. But because of the present circumstances I will accept your counsel's application and order that the defendant be discharged without conviction pursuant to s.104 (1) (b) of the Criminal Procedure Act 1972 and secondly, pursuant to s.104 (6) he is ordered to pay the following sums by 12noon tomorrow 16 July 2009:

1. the sum of $200 court costs;

2. the sum of $100 prosecution costs; and

3. the sum of $50 probation office costs;

the total sum of $350 is payable by 12noon tomorrow in default 3 months imprisonment.

JUSTICE NELSON