Police v Keresoma [2014] WSSC 68 (14 November 2014)

SUPREME COURT OF SAMOA

Police v Lafoia Keresoma [2014] WSSC 68

Case name:	Police v Keresoma
Citation:	[2014] WSSC 68
Decision date:	14 November 2014
Parties:	POLICE Prosecution, AND LAFOIA KERESOMA aka LAFOIA SAVEA LAKI male of Salelologa. Accused
Hearing date(s):	10 November 2014
File number(s):	S2748/14
Jurisdiction:	CRIMINAL
Place of delivery:	MULINUU
Judge(s):	CHIEF JUSTICE PATU FALEFATU MAKA SAPOLU
On appeal from:
Order:
Representation:	L Su’a-Mailo for prosecution Accused in person
Catchwords:	Sentencing policy, aggravating and mitigating featuers, sentence
Words and phrases:	Cultivation of prohibited plant
Legislation cited:	Narcotics Act 1967s.6(b) s.18
Cases cited:	R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S2748/14

BETWEEN

P O L I C E
Prosecution

A N D

LAFOAI KERESOMA aka LAFOAI SAVEA LAKI male of Salelologa.
Accused

Counsel
L Mailo-Su’a for prosecution
Accused in persons

Sentence: 14 November 2014

S E N T E N C E

The charges

1. The accused Lafoai Keresoma of Sapapalii, Savaii, appears for sentence on the charge of cultivation of a prohibited plant, contrary to s.6(b) of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment under s.18 of the Act. To the charge, he pleaded guilty at the earliest opportunity.

The offending

2. On Saturday morning 6 September 2014 at around 4am, the police at Tuasivi received a phone call from an informer that the accused was watering a marijuana plant beside his family’s house at Sapapalii. The police attended to the phone call and when they arrived at the house of the accused’s family they explained to the accused’s father the purpose of their visit. The police then searched the house. They found a marijuana plant about 6 inches in height growing inside a white bucket beside the house. The accused was then taken by the police to the Tuasivi police post where he was cautioned and interviewed. He admitted to the police that the marijuana plant was his.

The accused

3. As shown from the pre-sentence report, the accused is 31 years old. He is also still single. He left school after Year 11 and helped out with his family’s plantation. He was then employed for 4 years as a carpenter at a building construction owned by a matai of his village. He then worked as a fisherman and a planter on his family’s plantation. He is still working on his family’s plantation up to now. He has also contributed financially to the renovation and extension of his family’s house. One week before he was apprehended by the police, he was bestowed with the matai title of his family.
4. The accused does not consume alcohol or smoke cigarettes. However, since 2013 he has been smoking marijuana. He says it gives him motivation and strength when doing chores at home.
5. The pre-sentence report also shows that the accused is a first offender and that the testimonials from his sister, church minister, and the pulenu’u of his village all show that he had been a person of good character prior to the commission of this offence. The pre-sentence report further shows that the village council of Sapapalii has penalised the accused and the pulenu’u of Sapapalii has confirmed to the probation service that the accused’s family has provided one cattle beast, twenty two boxes of canned fish, and two large fine mats to the village council for the accused’s penalty.
6. In addition, the accused has expressed deep remorse to the probation service and has apologised to the Court asking for a second chance to redeem himself. The accused has also pleaded guilty to the charge against him at the earliest opportunity.

The aggravating and mitigating features

7. Apart from the fact of cultivation of one marijuana plant, there is no aggravating feature in relation to the offending. There is no evidence of a commercial motive. But there is also no evidence that the leaves or seeds from this marijuana plant when it matures will not be given out to others, particularly youths of the village. In other words, there is no clear evidence of what this marijuana plant will be used for when it matures. I do not accept what the accused told the probation service that he merely planted this marijuana plant as he was keen to see how it grows. He is a self-confessed consumer of marijuana.
8. In relation to the accused as offender there are several mitigating features. Even though he admitted to the probation service that he started smoking marijuana in 2013 to give him motivation and strength when doing family chores, the testimonials provided on his behalf show that he has otherwise been a person of good character. This is not a case of an offender with nothing good being said on his behalf. The heavy penalty imposed by the village council on the accused is also an important mitigating feature. Likewise, are the accused’s expressions of remorse to the probation service and to the Court. The accused’s plea of guilty at the earliest opportunity is also another important mitigating feature.

Discussion

9. In considering what should be the appropriate penalty for this case, I take into account the maximum penalty of 14 years imprisonment for cultivation of narcotics. The maximum penalty for cultivation of narcotics was 7 years imprisonment but because of the high prevalence of narcotic related offences, the maximum penalty was increased by the Narcotics Amendment Act 2009 to 14 years imprisonment which came into effect on 12 July 2010. In the recent past, the number of narcotic related offences brought before my Court during criminal mentions has decreased. However, it is too early at this stage to depart from the Court’s traditional sentencing policy of imposing custodial sentences in cultivation of narcotics cases unless there are exceptional circumstances. The reason is that there is a risk that a relaxation by the Court at this stage of its current sentencing policy may result in a resurgence of possession and cultivation of narcotics offences so soon after the maximum penalty was increased to 14 years imprisonment. The need for deterrence in narcotics offending is still a paramount consideration to be borne in mind for sentencing purposes. Having regard to all the relevant circumstances and considerations to which I have referred, I have decided to impose a short term of imprisonment in this case. To impose a non-custodial sentence could send the wrong message that growing one marijuana plant is now condoned in spite of the recent increase in the maximum penalty for possession and cultivation and the established sentencing policy of this Court.
10. I would, however, also want to refer to the leading case in New Zealand on sentencing in cultivation of cannabis plants cases. This is the often-cited case of R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 where the New Zealand Court of Appeal classified cultivation of cannabis plants into three categories for sentencing purposes. In that case, the Court said at page 64 in relation to category 1 as follows:

“Category 1: consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited”.

11. The Court in R v Terewi noted at para [3] in p.64 that the maximum penalty in New Zealand for cultivation of cannabis plants was 7 years imprisonment. That is much less than the maximum penalty of 14 years imprisonment for cultivation of narcotics in Samoa which was enacted by the Narcotics Amendment Act 2009 which came into effect on 12 July 2010 because of the persistent high prevalence of narcotic related offences in our community for many years. It is also quite common to see from narcotic cases brought before the Court that village councils regard narcotic offending as quite serious because of the kind of penalties they impose for such offending. The heavy penalty imposed by the village council of Sapapalii in this case is a reflection of the seriousness with which our community views narcotic offending. The establishment of an Alcohol and Drugs Court in Samoa is also under consideration. One of its aims is to treat alcohol or drug related offenders with dependency issues.

The result

12. The accused is sentenced to 3 months imprisonment. Any time he has already spent in custody is to be deducted from that sentence.

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CHIEFJUSTICE