Police v Enelagi [2012] WSSC 43 (20 February 2012)

SUPREME COURT OF SAMOA

Police v Enelagi [2012] WSSC 43

Case name: Police v Enelagi

Citation: [2012] WSSC 43

Decision date: 20 February 2012

Parties: Police and Enelagi Enelagi

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery:Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

Representation:

Delma Niumata for prosecution,

Accused in person

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULI NUU

BETWEEN:

POLICE

Prosecution

AND

ENELAGI ENELAGI male of Faleula

Defendant

Counsel:

Delma Niumata for prosecution

Accused in person

Sentence: 20 February 2012

S E N T E N C E

Background

1. As a result of a police informant supplying to the police information about the sale of marijuana from the defendant’s house at Faleula, the police immediately proceeded to and searched the defendant’s house without a search warrant. Nothing was found because according to the summary of facts the defendant somehow knew that the police were on their way and he immediately sent two boys with the bag of marijuana to hide at a neighbouring property.
2. But the police were informed of the defendant’s attempts to conceal the narcotics and proceeded to the neighbour’s property where they discovered the bag containing 200 small plastic bags of marijuana leaves. There upon the defendant was arrested. He told the police during the interview that he bought the narcotics the day before to give to villagers who assist with his work.
3. He pleaded guilty to the possession of the 200 bags of marijuana leaves.

The Defendant

4. The defendant is a 56 years old married man of Vaiala and Faleula. With his wife and 4 children living in New Zealand he commutes regularly to NZ to visit his family who are responsible for his upkeep due to his unemployment status in Samoa.
5. He is described in the probation report to be suffering from chronic gout and hypertension. His limbs were noticeably distorted during the interview by the probation service.
6. A medical report from his NZ doctor describes the defendant to be suffering from gout, hypertension, diabetes and peptic ulcer. He is in poor health and requires regular medical attention.
7. Testimonials from his Catholic priest and mayor of his village portray the defendant as a dedicated, reliable and responsible member of the village and church.
8. He has no previous convictions.

Submissions by the prosecution

9. The prosecution seeks four years custodial sentence for several reasons:
   1. Firstly it is contended that there is a real need for deterrence for the very prevalent narcotics offending in our community.
   2. Secondly the prosecution submitted that it is the court’s current sentencing policy in relation to narcotics offences, to impose custodial sentences unless there are exceptional circumstances here. There are no exceptional circumstances present.
   100. Thirdly it is contended that the defendant was in possession of the 200 plastic bags of marijuana leaves for a commercial purpose. Making a living by dealing in narcotics should be dealt with severely.

Submissions by the defendant

10. Counsel for the defendant submitted that given the circumstances of the offending, a starting point for the sentence should be two years which should then be adjusted downwards given the mitigating personal circumstances of the offender.
11. In relation to the offending it is the submission of counsel that there is nothing before the court to indicate that the defendant was in possession of the narcotics for a commercial purpose.

Discussion

12. It has been said many times that narcotics offending is on the rise. Its prevalence need not be restated. Custodial sentences have throughout the years also increased. They needed to be as Parliament increased the maximum penalty from seven to fourteen years imprisonment.
13. It has also been said many times that those who possess drugs with a commercial intent to make a living in the drug trade must expect harsher sentences than the casual smoker. Understandably society demands stern sentences to convey denunciation and intolerance to drug offending.
14. The defendant has no income. He depends on family members overseas who remit an average of $350 per fortnight or $175 per week. He has no other income. An informer whose attention was obviously attracted by the activities at the defendant’s house alerted the police. Two hundred plastic bags of marijuana leaves were found which the defendant told the police were purchased the day before.
15. He also told the police he bought the narcotics for distribution to his workers. Why he chose to pay his workers with drugs instead of cash remains a mystery. Why he needs workers is also a mystery.
16. Living on a budget of $350 per fortnight would be extremely tight and difficult. Spending $750 in one day on drugs alone requires very little exercise to a very simple mind that a $350 fortnightly budget alone could not have managed such a transaction. The defendant was without doubt dealing in drugs. That is what the police informer saw.
17. Sentences imposed in previous narcotics cases provide a useful guide in determining the duration of the custodial sentence if it is the appropriate sentence to be imposed. But they should be used as a guide only as the circumstances of each case differs.
18. Given the circumstances of the offending I consider four years as the appropriate starting point. For his early guilty plea I deduct 1 year and 6 months and for his first offender status I deduct another 1 year and 6 months.
19. The defendant is sentenced to 1 year imprisonment less any time he has spent in custody.
    

JUSTICE VAAI