Police v Tuputala [2012] WSSC 36 (4 May 2012)

SUPREME COURT OF SAMOA
Police v Tuputala [2012] WSSC 36

Case name: Police v Tuputala

Citation: [2012] WSSC 36

Decision date: 4 May 2012

Parties:

Police v Pese Tuputala male of Vailoa-uta Faleata, Sapunaoa and Vaitoomuli, Palauli and Violina Tuputala a female of Vailoa-uta, Faleata.

Hearing date(s): 10 April, 24-25 April, 27 April 2012

File number(s): S390/12

Jurisdiction: Criminal

Place of delivery: Mulinu’u

Judge(s): Chief Justice Sapolu

Representation:

P Valoia for prosecution (Attorney-General’s Office, Apia)
T R S Toailoa for defendant (Toa Law)

Catchwords:

Criminal Law – Sentencing relating to Narcotics and the very high level of prevalence of marijuana offending.

Words and phrases:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:	P O L I C E Prosecution
A N D:	PESE TUPUTALA male of Vailoa-uta, Faleata, Sapunaoa and Vaitoomuli Palauli, VIOLINA SASATUAUMU TUPUTALA female of Vailoa-uta and Faleata. Accused

Counsel:
P Valoia for prosecution
T R S Toailoa for accused

Sentence: 4 May 2012

S E N T E N C E

The charges

1. The accused Pese Tuputala (Pese), a male of Vailoa, Faleata, appears for sentence on the charge of possession of an unlawful weapon, namely, a pistol 25mm under s.12 (1), (2), (3) of the Arms Ordinance 1960. His wife Violina Sasatuaumu Tuputala (Violina), appears for sentence on the charge of possession of narcotics, namely, one thousand (1000) marijuana seeds and one hundred and eighteen (118) marijuana joints. Both accused had originally pleaded not guilty to the charges against them but on the morning of the trial vacated their not guilty pleas and substituted them with guilty pleas.

The offending

2. As it appears from the prosecution’s summary of facts, on Friday afternoon 21 October 2011 at about 5pm, the police received a phone call from an informant that marijuana substances were being sold from the land occupied by the two accused and their relatives at Vailoa, Faleata. The police promptly attended to the phone call.
3. Upon arrival at the accused’s land, the police were met by the accused Pese who said “Ua fai so’o le tou le mafaufau, o lea ua leva ga ou faakali aku ia oukou”. The police then searched the accused’s land and premises. At that time, a female relative of the accused was seen running towards the nearby bushes with a black bag in her hand. A police officer gave chase and when he caught up with the accused’s female relative, he brought her back with the black bag to the front of the accused’s property.
4. By that time, the other relatives of the accused who were present were causing a commotion with the police. As the police officer who had given chase to the accused’s relative who ran to the bushes with the black bag arrived at where the commotion was taking place, the accused Violina snatched the black bag and ran to the back of the house. The police gave chase and when they caught Violina, she threw the black bag into the bushes. The police retrieved the bag and when they opened it, it contained one hundred and eighteen (118) marijuana joints as well as one thousand (1000) marijuana seeds.
5. The police then searched the accused’s house where they found a 4/10 rifle and a 25mm pistol. The accused Pese is only charged with possession of the 25mm pistol.

The accused Pese

6. The accused Pese is a 44 year old male. He is a first offender. He has had heart problems and in 1987 underwent a heart operation in New Zealand. He told the probation service that the firearms found by the police in his possession were borrowed from a friend named Poni to scare off the pigs that damage his land. There is no evidence from the prosecution to contradict this statement. I will give the accused the benefit of the doubt.

The accused Violina

7. The accused Violina is 44 years old. She is the wife of the accused Pese. She is also a first offender. She told the probation service that she knew the black bag which she snatched from her relative and threw into the bushes behind her house contained marijuana substances.

Mitigating factors

8. The mitigating factors which are common to both accused are their delayed guilty pleas and the fact that they are both first offenders.
9. In respect of the accused Pese, I will also take into account his heart condition bearing in mind that his heart operation was in 1987 some 25 years ago but he still avoids hard labour up to now.
10. In respect of the accused Violina, there is no other mitigating circumstance.

Aggravating factors

11. There is no aggravating factor in relation to the accused Pese. As for the accused Violina, the large quantity of marijuana substances in her possession and her attempt to conceal the black bag containing the marijuana substances are aggravating factors relating to her offending. The quantity of marijuana seeds in the possession of this accused that they were intended for cultivation and the quantity of marijuana joints suggest these were for sale to get money.

The decision

(a) The accused Pese

12. Having regard to the degree of criminality of the offending by the accused Pese and the mitigating factors in his favour, he is fined $500 for possession of an unlawful weapon.

(b) The accused Violina

13. In setting a starting point for sentence against the accused Violina, I take into account the recently enacted maximum penalty of 14 years imprisonment for the offence of possession of narcotics. It reflects the grave concern of the community about the very high level of prevalence of marijuana offending. I also take into account the aggravating factors already referred to in relation to the offending. The starting point for sentence is 4½ years. I will deduct one year due to the fact that the accused is a first offender. That leaves 3½ years. I further deduct 6 months for her delayed plea of guilty to the charge against her. That leaves 3 years.
14. The accused Violina is sentenced to 3 years imprisonment. Any time for which she has been remanded in custody pending the outcome of this matter is to be further deducted from that sentence.
    

CHIEF JUSTICE