Police v Malo [2012] WSSC 32 (23 March 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LUANU'U MALO male of Malifa.
Accused

Counsel: T Toailoa for prosecution
M V Peteru for accused

Sentence: 23 March 2012

SENTENCE

The charges

1. The accused Luanu'u Malo appears for sentence on two charges of possession of narcotics pursuant to ss.7 and 18 of the Narcotics Act 1967. He had pleaded not guilty to both charges but on the date of trial he vacated his not guilty plea through his counsel and entered a guilty plea. He was jointly charged with his wife but subsequently the charges were withdrawn insofar as they relate to his wife.
   

The offending

2. As it is shown from the prosecution's summary of facts, on 17 August 2011 at about 3.00pm, the police received a phone call from an informant that a taxi had just delivered marijuana substances to the accused's home at Malifa. A team of police officers immediately went to the accused's home. They found the accused and his wife leaving their premises. The police stopped them and escorted them back into their home.
   
3. The search carried out by the police of the accused's house found a black bag inside a glass cabinet. Inside the bag were 160 marijuana joints wrapped in white paper, 21 marijuana branches wrapped in a newspaper, and 286 marijuana seeds. The police also found a plastic bag which contained 56 marijuana joints. A bankbook with a balance of $14,049.63 and monies including Samoan, American, Australian, and New Zealand currencies were also found. The accused was brought to the Apia police station where he admitted during the course of his police interview that the marijuana substances found inside his home belonged to him and the monies were proceeds received from selling marijuana substances.
   

The accused

4. The accused is a 54 year old male from Malifa. The pre-sentence report shows his date of birth as 7 June 1957. He also told the probation service that he has gout and a heart disease as a result of which he is now a cripple.
   
5. The accused has a bad criminal record. From 31 January 1973 at the age of 15 years to 1998 he was in and out of prison for burglary and theft. Somehow he managed to travel to New Zealand where in 1990 he was convicted of seven different offences including rape for which he was sentenced of to 8 years imprisonment. He returned to Samoa and in 2000 was convicted and sentenced to prison for possession of narcotics.
   
6. From the pre-sentence report, it is clear that the accused has been a consumer of marijuana for a long time. He is also a dealer in narcotics by selling marijuana. This is also confirmed not only from the quantity of marijuana substances found by the police inside his house but also from his own admission to the police that the monies found inside his house were proceeds from the sale of marijuana substances.
   

Aggravating factors

7. The two aggravating factors in relation to this offending are the large quantity of marijuana substances found in the accused's possession and the commercial motive involved. Apart from the people who grow and cultivate marijuana, it is also people like the accused who 'push' and sell marijuana to consumers that are the real cause of the high rate of marijuana offending within the community.
   
8. There is insufficient from the material before the Court for me to draw the inference that the accused was in possession of the large quantity of marijuana seeds for the purpose of cultivation by himself. Given that he is now a cripple, it would be unrealistic to expect him to grow and cultivate marijuana. But by selling marijuana seeds to others, he is in effect promoting and encouraging the growing and cultivation of marijuana by those other people.
   
9. Thus, the accused would be selling marijuana joints and branches to consumers and marijuana seeds to growers or potential growers of marijuana.
   
10. The other aggravating factor, but this one relates not to the offending but to the accused as offender, is the numerous previous convictions. Even though the accused has only one previous conviction for narcotic offending which was in 2000, his many previous convictions reflect total disregard for the law. However, the Court has to be cautious that the sentence is not increased too high due to previous convictions that it gives the impression that the accused is being punished twice for the same offences for which he has already been punished.
    

Mitigating factors

11. As already mentioned, there is no mitigating factor relating to the offending. The only mitigating factors relate to the accused as offender. The first is his belated guilty plea. Even though the accused had admitted to the police when he was interviewed after being brought to the Apia police station from his house, he subsequently pleaded not guilty to the charges against him. I, therefore, do not consider the accused's early co-operation with the police as mitigating. The second mitigating factor relating to the accused as offender is his health condition. He is now a cripple.
    

Sentencing objectives

12. The sentencing objective of deterrence is given priority in this case. This is partly due to the need to deter the commission of crime but more importantly due to the high rate of narcotic offending which has existed within the community for a long time. However, the Court has to be cautious that the accused is not punished too severely because of the narcotic offences committed others. The objective is deterrence, not punishment for offences of the same kind committed by others.
    

The Narcotics Amendment Act 2009

13. The Narcotics Amendment Act 2009 which came into force on 12 July 2010 has increased the maximum penalty for possession of narcotics from 7 years to 14 years imprisonment. Whilst this reflects the concern of the community with the high rate and prevalence of narcotic offending, I am of the respectful view that the increase in the maximum penalty gives the Court more latitude when dealing with such narcotics as cocaine, methamphetamine, or other hard drugs. It also means that when passing sentence for marijuana related offences, the recent increase in maximum penalty for possession of narcotics should be taken into account, provided it is also borne in mind that there are more serious drugs than marijuana, like cocaine and methamphetamine, which also fall within the same maximum penalty.
    

The decision

14. In passing sentence, I will apply the totality principle to both charges. Having regard to the maximum penalty of 14 years imprisonment, the need for deterrence in this type of case, and the aggravating factors relating to the present offending, I will take 6 years as the starting point for sentence. I will deduct 10% for the belated guilty plea. That leaves 5 years 5 months. I will show mercy on the accused because of his physical condition and deduct a further 5 months. That leaves 5 years. I will then add on 6 months for the previous convictions, the last one being in 2000. That brings up the starting point to 5 years and 6 months.
    
15. The accused is convicted and sentenced to 5 years and 6 months imprisonment on each of the two charges against him. Both sentences are to be concurrent. The time the accused has spent in custody pending the outcome of this matter is to be deducted from that sentence.
    

CHIEF JUSTICE

Solicitor
Attorney-General Office, Apia, for prosecution
M V Peteru Law Firm for accused