Police v Fa'i [2010] WSSC 148 (30 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

SATINI FA'I @ SATINI PATEA, male of Faleatiu and Salepoua'e
Defendant

Counsels: Ms F. Vaai for prosecution
Ms J. Sapolu for defendant

Sentence: 30 August 2010

SENTENCE

The defendant appears for sentence on two charges. The first is possession of 20 branches of marijuana and some loose leaves. It is said to have occurred at Poutasi Falealili on Christmas day 2009. The second charge is that he was in possession of a semi-automatic pistol at the same place on the same date and that he was not authorized by the Minister of Police to have possession of the said pistol.

The first charge carries a 7 year maximum penalty at law while the second charge a 5 year maximum penalty at law. The items in question are said to have been discovered in the defendants possession when he was in a taxi stopped by the police on Christmas day. The defendant was then on week-end parole from Tafaigata prison where he was serving a three year term for theft and unlawful conversion. For some reason this conviction is not on the defendants police conviction record produced by the prosecution which only refers to an old conviction in 2002 for other offences but this latest conviction is referred to in the Probation Office pre-sentence report which seems to be fast becoming a more reliable record of a defendants conviction history. This is not the first time the probation office has picked up something that the police have overlooked and the prosecution need to remind the police to fix this recurring problem because it is vital that the court have up-to-date information on a defendants previous conviction history or lack thereof.

In any event in reference to these charges the defendant has pleaded guilty to the narcotics as well as the firearm charge. The courts have spoken before on the link between these two sorts of charges. Most recently in the case of Tagaloasa Filipaina on 16 July 2010 where Slicer J. spoke of the link between these charges and commercial marijuana operations involving growing and dealing in prohibited narcotics.

Prosecution have submitted that I should treat this defendant and this offending as being one involving a commercial operation and that the defendant should be sentenced on the basis that he is a dealer in prohibited narcotics. Dealers in narcotics are of course treated in a more serious fashion because as noted in previous cases such as Police v Viali [2009] WSSC 75:
"The court will be especially vigilant in cases involving dealers, growers and distributors of marijuana or other narcotics. The penalties for them will be markedly sterner."

I have considered this matter carefully because of the possibility that the defendant may have been involved in such a commercial operation but apart from what is in the prosecution submission there is little in the documents before me to support the suggestion that this defendant was involved in such an operation or was part of such an operation. I am therefore not going to sentence the defendant on that basis. But the offences still call for penalties of imprisonment because the quantity of drugs found on the defendant were significant and the drugs were found in the possession of a person who also had a loaded pistol in his pocket.

The defendant told the Probation Office that the pistol was purchased for the purpose of guarding his plantation from stray pigs but I doubt that for two reasons. Firstly, when the defendant was stopped by the police he was in a taxi not at his plantation and the pistol was loaded. Secondly, a rifle is more ideally suited to such a purpose as opposed to a pistol. I am inclined to the view the defendants purpose was to use the pistol to protect the drugs he was carrying and not for any protection of his plantation.

The Parliament of this country is constantly reviewing penalties for drug possession and for unlawful weapons because of the disturbing emerging trend of escalation in both types of offending. Invariably therefore penalties for such offending should be ones of imprisonment unless there are compelling reasons why not.

In respect of the charge of possession of narcotics I take into account that the defendant should as submitted by his counsel be treated as a first offender for drug offences because his other offendings are for offending of a different nature and character. I accept that submission in both these matters before the court. That factor is in the defendants favour as well as his early guilty pleas to the charges.

Defence counsel also referred to the Court of Appeal decision in Chan Chui [2008] WSCA 11 as representing a case where a non imprisonment penalty was imposed. That was also a drug case and counsel argued that was a case comparable to this and the court should look at an alternative penalty as was done in that particular proceeding. But an examination of that case reveals that the circumstances thereof were quite different and the quantity of drugs which was three joints was considerably smaller. Counsel also submitted that the court should consider a rehabilitative type penalty for this defendant. However I consider that is not an option given the defendants record and history of offending. If anything it shows that he seems to be graduating towards more serious offending

Considering all the circumstances of your case including what your lawyer has had to say on your behalf as well as the Probation Office, the penalties for these offences are as follows:
In respect of the offence of possession of narcotics, you will be convicted and sentenced to 12 months in prison. In respect of the second offence of possession of an unlicensed pistol, you will likewise be convicted and sentenced to 12 months in prison. And because these offences are separate and distinct those terms will have to be cumulative so that for these offences you will serve 2 years imprisonment in addition to any term you are presently serving.

JUSTICE NELSON