Police v Okesene [2012] WSSC 15 (10 April 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PETI OKESENE and VAALELE LESA
male of Vailele and Ulutogia Aleipata.
Accused

Counsel: T Toailoa and P Valoia for prosecution
L R Schuster for accused Peti Okesene
Accused Vaalele Lesa in person

Sentence: 10 April 2012

SENTENCE

The charges

1. The accused are jointly charged with one count of cultivation of narcotics pursuant s.6 of the Narcotics Act 1967, one count of possession of narcotics pursuant to s.7 of the Act, and one count of possession of narcotics pursuant to s.6 (b) of the Act. The maximum penalty for each count is 14 years imprisonment under s.18.
   
2. Both accused had pleaded not guilty to all counts. On 9 March 2012, the day of the trial, they changed their pleas to guilty. They are now appearing for sentence.
   

The offending

3. On Saturday morning 19 February 2011, the police executed a warrant to search the accused's premises at Tiavi. The team of police officers who executed the search warrant were met upon arrival by the accused Peti Okesene (Peti). They then made their way to the house of the accused where the second accused Vaalele Lesa (Vaalele) was seen fleeing the area. The police gave chase and escorted Vaalele back to the house. Apparently, both accused live in the same house.
   
4. The police then searched the house of the accused and found the following marijuana plants:

(i) one marijuana plant approximately 2 ft x 31 inches high growing inside a silver cooking pot; (ii) one marijuana plant approximately 3 ft x 40 inches high growing inside a bucket; (iii) three plastic bags containing small marijuana plants; (iv) eleven small marijuana plants growing inside eight white plastic containers; (v) one marijuana plant planted inside a white basin; (vi) one marijuana plant growing inside a can labelled ' Blueskies'; (vii) two small marijuana plants growing inside two plastic containers; (viii) two small marijuana plants growing inside two black half sided plastic bottles; (ix) sixteen small marijuana plants growing inside a red square container; (x) three small marijuana plants growing inside a white container; (xi) three marijuana plants each being approximately 1 ft x 16 inches high; and (xii) three marijuana plants each being approximately 1 ft tall. This was obviously a marijuana farm inside a dwelling house.

5. The police also found marijuana plants growing on other parts of the accused's premises. One thousand one hundred and forty (1140) marijuana seeds and four marijuana branches as well as dried loose leaves weighing 196.5 grams and estimated to make up 280 marijuana cigarettes were also found on the accused's premises.
   
6. In total, forty seven marijuana plants, 1140 marijuana seeds, and four small marijuana branches and dried loose marijuana leaves were found by the police on the accused's premises.
   

The accused

7. The accused Peti is a 39 year old male. He helps with his family's plantation and vegetable garden at Tiavi. He has ten previous convictions for offences within the jurisdiction of the District Court none of which relates to narcotics. Thus, Peti is a first narcotic offender. The sentencing memorandum by the prosecution states that the accused Peti has previous convictions for narcotic related offences but the previous conviction card for the accused Peti does not show any previous conviction for a narcotic related offence. I will proceed on the basis of the previous conviction card for Peti which he confirmed to the Court.
   
8. The accused Vaalele is a 30 year old male also of Tiavi. He told the probation service that he started cultivating marijuana since 2005 and he has a marijuana farm at Tiavi. He also told the probation service that he has previous convictions for narcotic offences but the previous conviction card submitted to the Court for this accused shows that he has only one previous conviction which was for theft. He also confirmed to the Court his previous conviction card. In the circumstances, I will give this accused the benefit of the doubt and proceed on the basis of his previous conviction card which he confirmed to the Court.
   

Aggravating factors

9. The substantial quantity of marijuana plants, seeds, branches, and dried loose leaves found on the accused's premises is the first aggravating factor in this case. As already mentioned, the accused obviously had a marijuana farm inside their dwelling house. The second aggravating factor is that the fact that the accused had a marijuana farm clearly suggests that the accused had a commercial purpose in mind. They were indeed suppliers of marijuana substances. I must say that it is the suppliers of marijuana who are at the root of the problem now facing the Courts and the police. The third aggravating factor is the large number of marijuana seeds found in the house of the accused. In the circumstances, it is clear those seeds were intended for subsequent cultivation and supply to consumers of marijuana to earn money. Marijuana is an 'easy way of earning money' as the accused Vaalele told the probation service. it re-confirms that the accused had a commercial motive for cultivating marijuana.
   

Sentencing objectives

10. The relevant sentencing objectives in this case are retribution and deterrence, particularly deterrence because of the continuing high prevalence of marijuana offences. Recently, the legislature increased the maximum penalty for cultivation and possession of narcotic offences from seven to fourteen years imprisonment. It reflects the seriousness and extent of the existing narcotic problem and the need for deterrence. However, in imposing sentences for marijuana offences, the Court must be conscious that very high sentences of imprisonment will not necessarily eradicate the problem though it may reduce its size. This is because the causes of marijuana offending lie outside of the Court system. It is strictly a social problem. What is required is a fair and just sentence in each case having regard to the circumstances of the case at hand and the need for deterrence due to the continuing high rate of marijuana offending.
    

The decision

11. I will start with cultivation. In setting a starting point for sentence for cultivation, I will take into account the totality of the offending, that is to say, both the cultivation and the possession aspects of the offending. Having regard to the maximum penalty of 14 years imprisonment for cultivation, the need for deterrence, and the aggravating factors relating to the offending, I will take 7 years as the starting point for sentence. For the mitigating factors relating to the accused as offenders, I will deduct 8 months being 10% for the delayed pleas of guilty by the accused. That leaves 6 years and 4 months. I will deduct another 4 months due to the fact that both accused are first narcotic offenders as it appears from their previous conviction cards confirmed by them to the Court. That leaves 6 years.
    
12. Each of the two accused is sentenced to 6 years imprisonment for cultivation of narcotics.
    
13. For the offence of possession of narcotics under s.7 of the Act, each of the accused is sentenced to 5 years imprisonment. For the offence of possession of narcotics under s.6 (b) of the Act, each of the accused is also sentenced to 5 years imprisonment. All sentences to be concurrent. This means the total sentence for each accused is 6 years imprisonment.
    
14. The time each accused has been remanded in custody pending the outcome of this matter is to be deducted from that sentence.
    

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CHIEF JUSTICE

Solicitor
Attorney-General's Office, Apia, for prosecution
Schuster and Annandale Law Office for accused Peti Okesene