Police v Mulitalo [2013] WSSC 67 (20 August 2013)

SUPREME COURT OF SAMOA

Police v Mulitalo [2013] WSSC 67

Case name: Police v Mulitalo

Citation: [2013] WSSC 67

Decision date: 20 August 2013
Parties:
POLICE (prosecution) and ALEKI MULITALO male of Matautu, Leauvaa and Vaipuna (accused)

Hearing date(s):

File number(s): S12502/11

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:

L Su’a for prosecution

Accused in person
Catchwords:
Sentence, possession of narcotics, starting point approach, intuitive analysis approach, aggravating and mitigating factors,

Words and phrases:

Legislation cited:
Narcotics Act 1967

Cases cited:
Attorney-General v Matalavea [2007] WSCA 8
Police v Faulkner [2007] WSSC 80
Police v Enelagi [2007] WSSC 95.
Police v Sawej Viliamu (2013) (SC No. S673/13
Police v Enosi Lipa (2013) (SC No. S8026/13
Police v Dylan Wilson and Kopo Seuamuli Fua (2013) (SC No. S973/13;
Police v Solomona Luamata (2013) (SC No. S111/13
R v Howe [1982] 1 NZLR 618.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S12502/11

BETWEEN

P O L I C E

Prosecution

A N D

ALEKI MULITALO male of Matautu, Leauvaa and Vaipuna.

Accused

Counsel: L Su’a for prosecution

Accused in person

Sentence: 20 August 2013

S E N T E N C E

The charges

1. The accused Aleki Mulitalo appears for sentence on one charge of possession of narcotics pursuant to s.7 of the Narcotics Act 1967 which carries a maximum penalty of 14 years imprisonment. The accused pleaded guilty to the charge at the earliest opportunity.

The offending

2. It was on Thursday afternoon on 25 July 2013 around 2pm. The police were investigating a reported burglary at the Falefitu Primary School at Faatoia when they saw the accused on the school compound. A police officer called out to the accused to come over. Instead of heeding the call from the police officer, the accused ran away. This made the police officer suspicious. He and other police officers then gave chase. They were able to catch up with the accused and had him brought to the Apia police station.
3. The police then body searched the accused at the station. They found on him one branch of marijuana estimated to produce three joints and thirty five marijuana joints wrapped in a paper.
4. In the pre-sentence report, the accused told the probation service that he bought the marijuana substances with which he has been charged from a stranger at the Fugalei Market for $50. This was for his personal use as he is a regular consumer of marijuana. He then went to the Falefitu Primary School to drop off the lunch for his nephew who goes to school there. That was when he was apprehended by the police. However, the accused did not explain why he had to run away when called by the police.

The accused

5. The accused as it appears from the pre-sentence report is a 28 year old male of Leauva’a and Vaipuna. He is single and unemployed. He stays home and performs errands for his family. He is a regular consumer of marijuana. As it appears from the accused’s previous pre-sentence reports, he also drinks when alcohol is available to him.
6. The accused also has a bad police record. In 2004 he was convicted and sentenced to 3 months imprisonment for possession of narcotics; in 2007 he was convicted and sentenced to 18 months probation and to perform 80 hours community service for burglary; in 2008 he was convicted and sentenced to 3 months imprisonment for unlawful intimidation; and on 17 October 2011 he was convicted and sentenced to 15 months imprisonment. He must therefore have completed his last sentence at the beginning of this year.
7. The accused told the Court during his plea in mitigation that he is remorseful and will not appear before the Court again. Given the accused’s previous convictions and the fact that he is a regular consumer of marijuana, I find it impossible to believe him.

Aggravating and mitigating factors

8. In relation to the offending, the only aggravating factor is the quantity of marijuana substances found by the police on the accused. There is no mitigating factor relating to the offending.
9. In relation to the accused as offender, the only aggravating factor is his previous convictions and the only mitigating factor personal to him is his plea of guilty to the charge at the earliest opportunity.

Discussion

10. The modern approach to sentencing is the starting point approach which was adopted by the Court of Appeal in Attorney-General v Matalavea [2007] WSCA 8 and by this Court in Police v Faulkner [2007] WSSC 80 and Police v Enelagi [2007] WSSC 95. More recently this approach was revisited by this Court in Police v Sawej Viliamu (2013) (SC No. S673/13; sentence delivered on 12 July 2012) and Police v Enosi Lipa (2013) (SC No. S8026/13; sentence delivered on 29 July 2013).
11. The approach to be applied to sentencing in Samoa is no longer the “intuitive analysis approach”. It is when the sentencing Judge is mindful of imposing a non-custodial sentence that it is not appropriate to apply the starting point approach: Police v Dylan Wilson and Kopo Seuamuli Fua (2013) (SC No. S973/13; sentence delivered on 2 August 2013), para 18, Police v Sawej Viliamu (supra), para 12, Police v Enosi Lipa (supra), para 20, Police v Solomona Luamata (2013) (SC No. S111/13; sentence delivered on 17 July 2013) para 26.

The decision

12. Having regard to the high maximum penalty of 14 years imprisonment for possession of narcotics, the need for deterrence, and the only aggravating factor for the offending there being no mitigating factor in this regard, I will take 10 months as the starting point for sentence. I will add an uplift of 3 months for the accused’s previous convictions which includes a previous conviction for possession of narcotics in 2004. That raises the starting point up to 11 months. In doing this, I am conscious of the danger of adding to the starting point too high an uplift for previous convections that it gives the impression that the accused is being punished again for the same offences for which he has already been punished. This would be wrong. The purpose of taking into account the accused’s previous convictions is to establish his character and to assist in the determination of the punishment that is appropriate for a person of that character:

R v Howe [1982] 1 NZLR 618.

13. I will deduct 1/5 or 20% for the accused’s early guilty plea. That will result in 9 months.
14. The accused is convicted and sentenced to 9 months imprisonment. Any time he has already spent in custody in relation to this matter is to be deducted.
    

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia, for prosecution