Police v Satele [2010] WSSC 47 (21 May 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

ALEPEA SATELE,
male of Leone
Defendant

Presiding Judge: Justice Slicer

Counsel: G Patu for the Prosecution
R Schuster for the Defendant

Hearing: 26 April, 13 and 17 May 2010
Sentencing: 21 May 2010

Charge: Possession of Narcotics

REASONS FOR DECISION AND SENTENCE

1. Alepea Satele originally pleaded not guilty to the charge of possession of a narcotic, namely cannabis, contrary to the Narcotics Act 1961 sections 7 and 18 (1), on information filed on 2 July 2008. The matter was listed for hearing on 3 August 2009 and following further adjournments was set down for hearing on 1 April 2010. On that day a co-defendant Sipili Talione appeared without representation and the matter was further adjourned until 26 April in order for him to obtain counsel.

2. On that day the prosecution was ready to proceed. Talione did not appear and a Warrant of Arrest issued. The Court refused a further adjournment and determined that the trial ought proceed against Satele alone. Following that refusal counsel successfully sought leave for the withdrawal of the not guilty plea. The Court had the information put directly to the defendant who answered "guilty your Honour". The Court then received a prosecution statement of facts and heard its submission as to penalty. It directed the preparation and presentation of a pre-sentence report. The sentencing hearing was adjourned until 17 May to enable counsel for the defendant to prepare the plea in mitigation. A pre-sentence report was provided to the Court and the parties.

3. On the resumption of the sentencing hearing Satele sought leave to again change his plea to one of not guilty. His counsel stated as a ground for leave that the contents of the pre-sentence report were inconsistent with guilt. The prosecution statement of facts had been varied in the course of the hearing on 26 April to assert that on apprehension by police, the defendant had in his possession a bag containing the marijuana but had claimed that it belonged to the co-defendant Talione who 'had met with Satele at the Fugalei market and given him the back-pack to carry'. The pre-sentence report contained the statement, provided by the defendant in his interview that;

"...he (the defendant) was unaware of the contents of the pack bag and later found out that it contained narcotics which are the subject of these proceedings."

4. The Court refused to allow the defendant to change his plea.

5. The plea of a defendant is that entered to the information and contains an admission as to its ingredients. A clear and unambiguous plea of guilty is an admission of all the facts essential to the offence (Slater v Marshall [1965] WAR 222). It constitutes an admission of all essential elements of the crime, proof of which is unnecessary (R. v Inglis [1917] ArgusLawRp 112; [1917] VLR 672). The responsibility is his (R. v Hall [1968] 2 Cr. App R 528) and any change of plea ought to be made by the accused personally and not by or through counsel (R. v Ellis [1973] 57 Cr. App R 571). Here an ingredient was that of knowledge of the substance. The defendant admitted by his plea, at least, that he was aware of the illegal nature of the contents of the bag. The defendant had altered his plea, with the benefit of counsel and with the knowledge of the prosecution case. He was entitled in his plea in mitigation to dispute particular facts which, if not accepted by the prosecutor, required the Court to undertake a 'disputed facts hearing'. The Court must base the sentence only on facts that have been properly established to the requisite standard (Olbrich v R. [1991] 166 ALR 330). A Court cannot sentence more severely than the crime warrants because of additional or external evidence which might establish a more serious crime (De Simoni (1981) 147 CLR 383). In determining these issues a Court ought not rely on what a defendant told others. Here the defendant relied on a statement made to a probation officer as a basis for leave to change his plea for the second time. He did not repeat the assertion, through counsel, in the submission made in the plea in mitigation. Where a plea in mitigation is inconsistent with a plea of guilty, the proper course to be adopted is for the Court to inform the defendant that the factual assertions are inconsistent with the plea of guilty and that there should be an application to change the plea, or if he or she wishes to adhere to the plea, any assertions inconsistent with the plea should be ignored.

PROBATION REPORT

6. The origin of probationary supervision can be traced to common law bonds, in which the undertaking to be of good behaviour and to appear was secured by securities and to later British and American experiments with voluntary supervisors (Sentencing, State and Federal Law in Victoria, Fox and Freiberg, 2 Ed. 1999). The Probation of First Offenders Act 1988 UK empowered Courts instead of sentencing a first offender to any punishment to direct release on entry into a recognizance to be of good behaviour and to appear and receive sentence when called upon. That is, in part the model used in the Samoan legislation, the Criminal Procedure Act 1972 section 113. A report provides a significant benefit to the parties and the Court. It is objective, often insightful and integral to the state's duty to deal with offenders. In many cases the reporting officer recounts the version of facts provided by the offender during the interview. In some instances that version is self serving and conflicts with the material provided to the Court. But the recounting of a version to another does not replace the duty of the Court to pay attention to the version of facts asserted by the parties in Court and that any differences be resolved by the judicial method. Facts recounted in a probation report might require a Court to make further inquiry, especially in the case of an unrepresented offender, but the report does not supplant the role of the Court in determining the facts as asserted by the parties in the course of the hearing.

CIRCUMSTANCES OF THE OFFENCE

7. The defendant was apprehended by police while carrying a bag which contained 40 small plastic bags containing marijuana. Ten other similar bags were found nearby. When interviewed, the defendant claimed that the marijuana belonged to Talione, who had given him the bag to carry. He is to be sentenced as a knowing accessory.

8. The offender aged 30, is married with four children. He had led a troubled life and, but for a minor and irrelevant conviction, has no relevant record. He has skills as a barber. He is currently employed in that trade but receives only a small return for his work. His family and the Bishop of his church attest him to be of good character. The Court accepts that he became involved in this affair through his company with others. But the quantity of the narcotic shows his involvement, even as an accessory was in a commercial and illegal dealing.

9. He is entitled to a small benefit for his later plea of guilty, and the fact that he has served 10 days imprisonment.

10. The appropriate sentence is that of six (6) months imprisonment.

FUTURE CO-OPERATION

11. The Court was told that he would further provide assistance in the policing of drug distribution by giving evidence on the trial of his co-offender. Counsel stated that his client would give evidence against Talione. The Court explained that if he went back on his word, his sentence could be recalled. In other jurisdictions co-operation by the promise to give future evidence in relation to co-offenders is a significant mitigating factor warranting a substantial reduction in penalty (Malvaso v R. [1989] HCA 58; (1989) 168 CLR 227; Stanley (1998) 7 TAS R 257). Conversely, evidence of failure to co-operate as promised may be received on an appeal against sentence and the sentence can be reviewed in the light of that evidence. The basis for review is that the evidence was imposed on an erroneous assumption (Stanley (supra) and other cases cited therein, J [1992] SASC 3639; (1992) 59 SASR 145). That appeal can be heard, even if leave is sought out of time, especially if the discretion to admit the fresh evidence is 'necessary or expedient in the interests of justice' (Veen (No.2) [1988] HCA 14; (1988) 164 CLR 465; Wilson J at 490; Gammow J at 499). The alternate approach is the use of a bond or deferral of sentence as permitted by the Criminal Procedure Act 1972, section 113.

12. The defendant is entitled to the mitigating matter of future co-operation. His co-operation or lack thereof might be taken into account but with a future risk. That risk was pointed out by the Court and with that knowledge counsel for the defendant maintained future co-operation as a mitigating factor.

13. Accordingly the Court affords co-operation as a significant mitigating factor. The otherwise appropriate sentence of 6 months imprisonment ought to be discounted.

14. The resulting order is one pursuant to the Criminal Procedure Act 1972 section 113. Taking into account the time already served, a section 113 order will be made.

ORDERS

1) Alepea Satele is convicted of the offence of Possession of a Narcotic.

2) Alepea Satele is ordered to appear for sentence if called upon within the next 3 years and is to be of good behaviour during that period.

JUSTICE SLICER