Police v Loto [2013] WSSC 22 (21 May 2013)

SUPREME COURT OF SAMOA

Police v Loto [2013] WSSC 22

Case name: Police v Misiona Loto

Citation: [2013] WSSC 22

Decision date: 21 May 2013

Parties: POLICE as Prosecution and MISIONA LOTO male of Vaoala and Afiamalu

Hearing date(s):

File number(s): FILE NO S2159/12

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge: CHIEF JUSTICE PATU FALEFATU MAKA SAPOLU

On appeal from:

Order:
Representation:
C Tafua-Rivers for prosecution
Accused in person

Catchwords:

Words and phrases:

Legislation cited:
Cases cited:
Police v Farani Mataena
Police v Pasi Pouono
Police v Malaetia Iakopo

Summary of decision:

:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO S2159/12

BETWEEN:

P O L I C E

Prosecution

A N D:

MISIONA LOTO male of Vaoala and Afiamalu.

Accused

Counsel:

C Tafua-Rivers for prosecution

Accused in person

Sentence: 21 May 2013

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of cultivation of a prohibited plant, namely, one marijuana plant pursuant to s.6 of the Narcotics Act 1967. He had pleaded not guilty to the charge but on the morning of the trial he vacated his not guilty plea and entered a guilty plea. The offence of cultivation of a prohibited plant carries a maximum penalty of 14 years imprisonment.

Offending

2. According to the prosecution’s summary of facts, the police brought in the accused on Tuesday, 27 November 2012, in relation to a suspected theft. When the accused was searched, a mobile phone which held pictures of marijuana was found on him. When questioned by the police in relation to those pictures, the accused admitted that he has a marijuana plant and described where it was located.
3. Later that same day, the police went to the plantation of the accused’s family at Malololelei with a search warrant. They were led by the accused to the part of the plantation where the marijuana plant was growing inside a small green bucket. The marijuana plant was about two inches in height. There is no evidence to suggest any commercial motive.

The accused

4. The accused is a 23 year old male of Vaoala. He is single and works on his family’s plantation at Malololelei.
5. As it appears from the pre-sentence report, the accused finished school at Year 11 and then helped his father with their plantation which is what he has been doing up to now. He is also a devout Christian and participates in the activities of the youth group of his Church.
6. The accused is also a first offender. The testimonials from the pastor of his Church and the pulenuu of his village show that the accused has been a person of good character prior to the commission of this offence.

Aggravating and mitigating factors

7. Apart from the intrinsic seriousness of the charge, there is no other aggravating factor relating to the offending or the offender.
8. On the other hand, there is one factor which I consider to be mitigating of the offending. This is the accused’s co-operation with the police. He readily admitted when questioned by the police that he has a marijuana plant. He also led the police to where the marijuana plant was growing in his family’s plantation. There are also mitigating factors relating to the accused as offender. He is a first offender and was a person of good character prior to the commission of this offence. He also pleaded guilty to the charge though belated.

Sentences in previous comparable cases

9. Counsel for the prosecution in her helpful sentencing memorandum refers to three previous cases with similar fact situations to this one and the sentences that were imposed in those cases. Those cases are Police v Farani Mataena (2 February 2007) where after a guilty plea the accused who was a first offender was sentenced to 6 months imprisonment for cultivation of one prohibited plant; Police v Pasi Pouono (11 November 2008) where after a guilty plea the accused who was a first offender was given a suspended sentence of 12 months and ordered to pay $200 costs to the prosecution; Police v Malaetia Iakopo (17 November 2008) where after a guilty plea the accused who was a first offender was sentenced to 12 months probation with a special condition that he was to perform 50 hours of community service and was ordered to pay $200 costs to the prosecution.
   10. Since the cases cited by counsel for the prosecution, the maximum penalty for the offence of cultivation of narcotics has gone up from 7 years imprisonment to 14 years imprisonment. This is because of the high prevalence of narcotic offending. The incidence of narcotic offences brought by the police before the Court has recently decreased but there is a risk that it might go up again if the Court is to relax its current sentencing attitude towards narcotic offending at this stage.

The decision

11. In determining the starting point for this case, I take into account the maximum penalty of 14 years imprisonment, the need for deterrence in this kind of case, the intrinsic seriousness of the charge as well as the accused’s co-operation with the police. The starting point is set at 10 months imprisonment. For the mitigating factors relating to the accused as offender, I deduct 2 months for the belated guilty plea. That leaves 8 months. I deduct a further 3 months due to the fact that the accused is a first offender. That leaves 5 months.
12. The accused is convicted and sentenced to 5 months imprisonment.
    

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CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution