Police v Leota [2011] WSSC 74 (18 April 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUA SATIA LEOTA male of Leone and Tafaigata Prison.
Defendant

Counsels: T Toailoa and F E Niumata for prosecution
Defendant unrepresented.

Sentence: 18 April 2011

SENTENCE

This defendant appears for sentence on a charge of possession of two branches of marijuana at Tafaigata Prison on 26 February this year. That charge carries a maximum penalty of 14 years in prison. I do not propose to restate the courts sentencing policy on drug matters because this should be well-known to everyone by now. It is well summed up in Police v Tamasone [2010] WSSC 181 in a passage which is quoted in the prosecution sentencing memorandum.

"The maximum penalty for possession and cultivation of marijuana was recently increased by Parliament from 7 years in prison to 14 years in prison, a sign of Parliaments concern about the increasing prevalence of drug offending in our community. A concern that has been shared by the court for many years resulting in a sentencing policy of the court imposing deterrence sentences even for first offenders who plead guilty. That policy means that non-custodial penalties only arise in exceptional cases and this is not one of them."

I am sure the defendant is well aware of it because he is currently serving a term of imprisonment for possession of narcotics. But to what was said in Police v Tamasone I will add that there are probably three kinds of drug cases where imprisonment is almost a certainty: firstly drug offending by drug dealers or those who distribute illicit narcotics for commercial gain especially around the public market areas, secondly drug offending at Tafaigata prison by prisoners and thirdly, repeat drug offending.

This case falls into the second category because the summary of facts which the defendant has accepted states as follows: while the defendant was on remand at Tafaigata prison awaiting sentence on drug charges he was visited on Saturday 26 February by some family members. After the visitors left and as per standard procedure a full search of the defendant was carried out by the police before he was returned to the cells. During that search the police discovered a piece of foil in the defendants right hand containing two small branches of marijuana. As a result of that the defendant was charged and has pleaded guilty to possession of two small branches. And I note they must have been relatively small in order to be able to fit in the defendants hands. No doubt he was attempting to conceal it from the police.

I take firstly the quantity of marijuana into account and secondly I propose to treat the defendant as a first offender notwithstanding his record. Because the offence in this case occurred before the defendant had been sentenced to prison for possession which term he is currently serving. An examination of his record shows that he was convicted on the 28 February some two days after this offence occurred and was sentenced to prison for possession and that is the term of imprisonment he is currently serving. This means that the defendant had not been convicted of possession when he committed the present offence and he is therefore entitled to be treated as a first offender for purposes of sentencing for the present offence.

I take that into account as well as the fact that you have pleaded guilty and saved the court unnecessary time being wasted. For the two branches of marijuana you are convicted and sentenced to 2 months in prison. Because this is a separate offence that is cumulative to your present term of imprisonment.

............................
JUSTICE NELSON