Police v Tormey [2010] WSSC 33 (21 June 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

GRANT TORMEY
male of Tiapapata
Defendant

Presiding Judge: Justice Vaai

Counsel: Mr G Patu for the prosecution
Ms B H Latu for defendant

Sentence: 21 June 2010

SENTENCE

1. The defendant was found gulty on one charge of possession of narcotics. Possession of narcotics in this case related to a stalk of marijuana and leaves inside a packet of pall mall cigarettes found by the police behind the drivers seat of the defendant’s vehicle during a police search of a property at Tafaigata. About 18 other vehicles were also searched on the same property.

2. The defendant together with his wife and their two infant children were then taken to the Apia police office where the police informed the defendant and his wife that they will be jointly charged with possession of narcotics. Ensuing discussions between the police and the defendant led to the laying of the charge against the defendant only. He was kept in police custody overnight and remanded on bail the following day after he was formally charged and the information was sworn before a deputy registrar.

3. The defendant is 46 years married with two infant children. He is a first offender. He is a businessman.

4. Possession of narcotics is a very serious and prevalent offence which normally invites an imprisonment sentence. The quantity of narcotics possessed is a significant factor in considering the appropriate sentence. Large quantities of narcotics is an indication to the court that a particular defendant is a dealer in narcotics and a sterner sentence is the appropriate penalty.

5. A branch with dry leaves found in a packet of cigarettes cannot be described as a significant quantity. Counsel for the defendant has emphasised the impact of the defendant’s arrest by the police upon the defendant and his family. In particular the adverse consequences of a conviction upon the defendant’s business within the community as well as the inability to travel overseas for courses and meetings have been emphasised as mitigating factors.

6. The defendant and other like minded characters who offend against our narcotics laws should realise and expect the unwelcome consequences of their offending. Ther courts policy in relation to the drug offending is well known. Drug offenders must expect stern measures from the courts to reflect intolerance by society towards drug abusers.

7. Counsel who represented the defendant in the defended hearing submitted in his written submission that the defendant’s vehicle was engaged in his business and the defendant’s assistants often used the vehicle. The submission suggested that one of his assistants may be the owner of the packet of cigarettes found in the defendant’s car.

8. The submission suggested that counsel was advised by the defendant of the vehicle being accessed by the defendant’s assistant but no evidence was given to the court to displace the presumption that the defendant knew of the presence of the narcotic found inside his car. Evidence to that effect may very well have had an impact in the determination of the charge against the defendant.

9. When the defendant requested the police to leave out his wife and charge him with possession of the narcotics, if could mean that he knew of the presence of the narcotic. It could also mean that he simply wanted to clear his wife’s name and prevent her from being prosecuted. For the purpose of this sentence I will take the interpretation favourable to the defendant.

10. There is one other significant factor of mitigation. Two years lapsed before the allegation against the defendant was determined. I note from the file that Justice Nelson in June 2008 awarded costs of $500.00 against the prosecution when they failed to proceed with the scheduled defended hearing. I accept that the delay has been an ordeal for the defendant for two years.

11. Present counsel for the defendant has urged the court to dispose with the defendant in a manner which would not result in a conviction being registered against the defendant. Counsel relies under section 104 of the Criminal Procedure Act of 1972.

12. Section 104 was considered by this court in Police v Viali (15/7/2009) and Attorney General v Vaai (6/5/2009). The prosecution opposes the disposition advanced by defence counsel. Prosecution insist on a sentence of imprisonemt.

13. The court agrees with the prosecution that drug offending is a very serious crime which warrants imprisonment sentence.

14. The defendant is appearing for the first time in a court of law. The court accepts that he is truly remorseful and for two years since his arrest in December 2007 he had this charge hanging over his head.

15. Before the court are a number of references and testimonials from the respected members of the community as well as the references in the probation report as to his background.

16. Given the circumstances I have referred to above as well as his background, and given the fact that an order for costs will be made against him which will tantamount to a substantial penalty in itself the court will invoke and does invoke the powers under section 104 of the Cirimal Procedure Act 1972. The defendant is discharged without conviction.

17. On the question of costs the defendant is ordered to pay court costs of $250.00 and prosecution costs of $250.00

JUSTICE VAAI