Police v Filipo [2010] WSSC 149 (6 September 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MATAIO FILIPO @ MAC FILIPO, male of Vaitele-uta, Faleapuna and Falealupo.
Defendant

Counsels: Mr G. Patu for prosecution
Ms RV. Papalii for defendant

Sentence: 6 September 2010

SENTENCE

This defendant appears for sentence on a charge of possession of ten branches of marijuana. His counsel has suggested that because the marijuana consists in this case of marijuana branches only they may have no conceivable use as only marijuana leaves that are attached to such branches are usable. That is almost tantamount to saying that possession of a branch of marijuana is not a criminal offence and that only possession of marijuana leaves attached to that branch constitutes an offence.

I have two difficulties with that novel argument. Firstly the offence the defendant has been charged with and pleaded guilty to is possession of a narcotic and a narcotic is described by secion 2(1) of the Narcotics Act 1967 as including any plants or substances "named or described in the First Schedule and includes every prohibited plant". "Prohibited plant" inter alia means "any plant of the genus Cannabis" and the First Schedule to the Act defines cannabis as including any "stalk or part thereof of any plant of the genus Cannabis". The nett effect of these definitions is that it is an offence to not only possess cannabis leaves but any part of the cannabis plant including its branches.

The second problem with the submission is that no such defence was run and the defendant has elected to plead guilty to the criminal offence of possession of narcotics. I also note that in informations filed by the police in relation to narcotics generally sometimes it is not stated in the information that the branches are accompanied by marijuana leaves. Even though as a matter of fact there are invariably leaves attached to the branch.

The offence of possession of narcotics as the defendant probably knows is punishable by up to 7 years in prison. The facts of this matter are set out in the summary of facts which defence counsel has accepted as follows:

1. Defendant is a thirty six (36) year old male of Vaitele-uta, Faleapuna and Falealupo, unemployed and single;
   
2. on Thursday 15 July 2010 at around 6am, acting on a tip from an informant, the police visited the defendants house at Vaitele-uta;
   
3. the defendant was present at home and he was said to be on the verandah of the house;
   
4. the Police conducted a search of the defendants property and in the outside kitchen they found 10 marijuana branches on an open fire that was burning;
   
5. Police arrested the defendant and took him into custody that day;
   

The defendant has been remanded in custody from that day to todays date and it is clear from the court file that he entered a guilty plea to the charge laid against him by the police at the first reasonable opportunity, so your counsel is correct Mataio your early guilty plea should earn you a discount and your remand in custody time should be taken into consideration.

The courts policy for marijuana and drug offences must be well known to the defendant because he has been sent to prison for narcotics offending three times before most recently in March 2009. Clearly the defendant is a persistent drug offender and I do not accept what he told the Probation Office in his probation interview that the ten branches of marijuana belonged to some friends. I accept his counsels submission however that there is no evidence before the court that he is a dealer or distributor of narcotics or marijuana for commercial gain. I treat him therefore as a repeat offender with a substance abuse problem. Abuse of alcohol as well as drugs as is shown by his drunkenness convictions. But I do not believe and the Probation office concurs that probation is of any use or value to the defendant. Imprisonment is necessary and the defendant must be advised as I am sure he has been in the past, further re-offending Mataio can only have one consequence for you given your record. A fua i le tulaga o solitulafono ia e molia mai ai oe i luma o le fa'amasinoga, pau lava lena o le fa'aiuga e avanoa mo oe, a molia mai lava oe i mataupu fa'apenei na'o le falepuipui lava. Pule la oe i le tulaga e te agai iai pe a e magalo mai i le taimi lea o le a fa'asala ai oe mo le mataupu lenei. Ae o le mea lena e taatia atu lava i ou aao, faitalia oe. Ae a toe aumai oe i mea faapenei ou te talitonu e tasi lava le fa'aiuga nao le falepuipui.

Quantity found on the defendant warrants in my view considering all the circumstances of this matter a 3 months term. But I will upgrade that to 6 months to take into account the defendants record of narcotics offending. Defendant will accordingly be convicted and sentenced to 6 months in prison but that sentence of imprisonment is to commence from the 15 July 2010 when he was first taken into police custody.

JUSTICE NELSON