Police v Mika [2013] WSSC 57 (9 September 2013)

SUPREME COURT OF SAMOA

Police v Mika [2013] WSSC 57

Case name: Police v Mika

Citation: [2013] WSSC 57

Decision date: 9 September 2013

Parties: Police (prosecution) and Bernie Mika male of Vaimoso (accused)

Hearing date(s):

File number(s): S1845/10

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
L Su’a and O Tagaloa for prosecution

Catchwords:
Words and phrases:
possession of narcotics

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO. S1845/10

BETWEEN:

P O L I C E

Prosecution

A N D

BERNIE MIKA male of Vaimoso.

Accused

Counsel: L Su’a and O Tagaloa for prosecution

Accused in person

Sentence: 9 September 2013

S E N T E N C E

The charge

1. The accused Bernie Mika of Vaimoso appears for sentence on the charge of being in possession of narcotics, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 7 years imprisonment. He pleaded not guilty to the charge but was found guilty at the trial.

The offending

2. It was on 9 October 2010 around 11:30am at the Fugalei Market. Two police officers were on duty at the police post at the Market. An informer tipped off the police officers that a young man was selling marijuana inside the Market. The police officers then approached the accused. Upon seeing the police officers approaching him, the accused threw away the bag he was carrying. This was picked up by a boy who run away with it. One of the police officers then gave chase to the boy who was running away with the bag while the other police officer struggled with the accused who was resisting arrest.
3. The boy who was running with the bag then threw away the bag. The police officer who was chasing this boy picked up the bag. On the other hand, the police officer who was struggling with the accused called for assistance. More police officers arrived and the accused was arrested and taken first to the police post at the Market where the bag was opened and found to contain 151 small plastic packets of marijuana leaves and 2 marijuana branches wrapped in a foil. These marijuana substances were shown to the accused before he was taken to the Apia Police Station.
4. According to the prosecution’s sentencing memorandum, the 151 small plastic packets of marijuana leaves found inside the bag carried by the accused would yield 43 joints and the two marijuana branches would yield 3 joints. From this quantity of marijuana substances, the fact that much of it were in small plastic packets normally used to sell marijuana, and the fact that the marijuana substances were carried in the Fugalei Market, clearly suggest that the accused was in possession of these substances with a commercial motive, that is to say, for sale.

The accused

5. The accused is now 28 years old. He must have been about 25 years old in 2010 when he committed this offence. There has been a delay in bringing this matter to trial because the accused had not appeared in Court on one occasion and a warrant of arrest was issued which took several months to execute and because of the fact that the first counsel who appeared for the accused withdrew from continuing to act as counsel for him and the accused had to engage new counsel.
6. The accused has a bad criminal record. Between 1999 and 2008 he had several convictions for crimes which involved the use of violence. On 22 August 2008, he was convicted of being in possessions of narcotics and placed on probation for 18 months. That term of probation must have ended in February 2010. In October 2010 he was again charged with possession of narcotics for which he is now appearing for sentence.

Aggravating and mitigating features

7. In relation to the offending, the aggravating features are the quantity of marijuana substances found on the accused, that the accused was obviously in possession for a commercial purpose, and that the accused instead of following the instructions of the police officers who confronted him threw away the bag in which he was carrying the marijuana and resisted and struggled with one of the police officers. There is no mitigating feature relating to the offending.
8. In relation to the accused, the aggravating factor personal to him is his previous convictions including his previous conviction in 2008 for possession of narcotics. There is no mitigating feature personal to the accused.

Discussion

9. Having regard to the maximum penalty of 7 years imprisonment for this offence, the need for deterrence, the aggravating features relating to the offending, I will take 10 months as the starting point for sentence. I will then add an uplift of 2 months for the accused’s previous convictions and that raises the starting point to 12 months.
10. The accused is convicted and sentenced to 12 months imprisonment. The time that he has already spent in custody is to be deducted from that sentence.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution