Police v Mate [2015] WSSC 106 (28 September 2015)

IN THE SUPREME COURT OF SAMOA
Police v Mate, Faamoe and Aitaoto [2015] WSSC 106

Case name:	Police v Mate, Faamoe and Aitaoto
Citation:	[2015] WSSC 106
Decision date:	28 September 2015
Parties:	Police (prosecution) and Pio Mate, male of Luatuanuu and Aele, Solofa Faamoe, male of Tulaele and Faifa Aitaoto, male of Toamua (defendants)
Hearing date(s):	20 August 2015
File number(s):	S439/15, S244/15, S245/15, S240/15 and S3849/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	For Pio and Faifa for this offence you are convicted and placed on Probation for 18 months. Both of you will do 50 hours of community work each. You will attend any programme to address your drug problems, as directed by the probation service. And you will pay the cost of the prosecution of $1500 tala each. You will pay that amount through the Probation Service by monthly payment of $300 tala. As for the defendant Solofa your participation in this offending was very minor and insignificant. Unfortunately you looked at the financial side rather than protecting yourself from breaching our narcotics act. Taxi drivers who have appeared for offences involving drugs have had their commercial licenses cancelled because of the nature of the offending. You have expressed your remorse and I accept your apology. For your offending you are convicted and ask to come up for sentence within 12 months. If you do not reoffend this is the end of the matter.
Representation:	O Tagaloa for prosecution Defendants unrepresented
Catchwords:	Possession of narcotics – liable to 14 years imprisonment – all defendants treated as first offenders – Pio and Faifa, both convicted and placed on Probation with special conditions. Solofa convicted and asked to come up for sentence within 12 months.
Words and phrases:	commercial purpose – element of drug trafficking
Legislation cited:
Cases cited:	Police v Moala Police v Keti
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PIO MATE male of Luatuanu and Aele, SOLOFA FAAMOE, male of Tulaele and FAIFA AITAOTO, male of Toamua
Defendants

Counsel: O Tagaloa for prosecution
Unrepresented

Sentence: 28 September 2015

S E N T E N C E

1. Defendants you are now appear for sentence on the charge of possession of narcotics for which you are all liable to 14 years imprisonment.
2. On the 16 January 2015 the defendant Pio and Faifa, hired the taxi driven by the other defendant Solofa to travel to Satapuala. The purpose of the trip was supposedly to take some sewing to be done at Satapuala. But it also appears from the evidence heard by this Court that the other purpose was to buy marijuana. Anyway on its return trip the taxi stopped at a place at Satapuala where somebody was waiting with marijuana and Faifa bought, according to his statement, 8 branches, and Pio bought 10 branches. This transaction was seen by a member of the public who promptly informed the police that certain taxi with a certain registered number was travelling towards Apia with marijuana. At the Afega police post the taxi was waived down and was searched.
3. The branches of marijuana that were purchased at Satapuala were discovered in two different areas of the taxi. Instead of 18 branches the police charged the defendants with being in possession of 42 branches. The defendant insisted that they only bought 18 branches and that the police obviously broke up the 18 branches to make 42 branches.
4. For purpose of this sentence I will accept the version of the defendants that they only bought 18 branches that is Faifa 8 branches and Pio 10 branches. The defendant Faifa is 39 years of age. From the probation report it appears that he left school at a very young age, in fact he left at Year 8, he has a wife and six children, his wife works and Faifa is left with the looking after of the children. He is able to look after the children because he runs a plantation as well a lawn mowing business. So despite his very limited education Faifa impresses as a hard worker and a very industrious father and husband. He is portrayed in the Probation report as a dedicated and hardworking father and husband. He has previous conviction in 1998 for cultivation and possession of narcotics for which he was imprisoned for 9 months. Pio Faamate is 52 years of age, he also has children. He, like Faifa, also had very limited education, in fact he also ended at primary school level. He is a planter and he is also portrayed in the probation report as a dedicated and a hardworking father. He also conveyed to the probation report that he had been taking marijuana for the last 5 years. In fact his wife also told the probation service that she warned the defendant about his drug habit. The third defendant, the taxi driver Solofa Faamoe, had no involvement in the drugs, he’s only involvement was that his taxi was hired by the two defendants Pio and Faifa to travel to Satapuala. He is married with 6 children and also portrayed in the probation report and attached testimonials as a law binding and loving father and husband.
5. As I have said earlier the prosecution is seeking a term of imprisonment to commence at 4 years. That is not surprising because the court have always taken a very stern and serious approach against those convicted of narcotic offences. Custodial sentences are therefore normally considered to deter the offenders and other like-minded people. The prosecution correctly considered there is no direct and clear evidence that the two defendants Faifa and Pio intended to use the drugs for commercial purpose. But they do say that the large quantities may be an indication of commercial intent. It is also suggested that perhaps since the taxi was involved that there may an element of drug trafficking. With respect to the prosecution, I do not consider that there was an element of drug trafficking.
6. In suggesting 4 years starting point, the prosecution referred the court to the two cases in past in which the court imposed sentences commencing at 4 years imprisonment for drug offending. These are the cases of Police v Moala and Police v Keti which were heard before Justice Nelson and the Chief Justice in March of this year and February 2014. I do not consider those two cases relevant as those sentences involved those who were dealing and transporting marijuana for commercial need. For the defendant Faifa although you had previous conviction for narcotics I will treat you as a first offender as that offence was in 1998, some 15 years ago.
7. I am satisfied that these drugs were purchased and possessed by the two defendants for their own personal use. If I had been satisfied that they bought them for commercial purpose I would have had no hesitation in imposing a lengthy custodial sentence. I have seriously considered the recommendation by the prosecution to impose custodial sentences for the defendants Pio and Faifa. But it also seems to me that your addiction to marijuana has never been addressed some other way other than by custodial sentence. It is for that reason that I have seriously considered the appropriate sentences in this matter and decided against custodial sentence against Pio and Faifa.
8. The sentence that I now intend to impose is to enable you and others to address your drug problem. And I hope that your wives will take an active part in your rehabilitation. And that if you are seriously concerned about your children you should take this opportunity seriously and never appear in this court again.
9. For Pio and Faifa for this offence you are convicted and placed on Probation for 18 months. Both of you will do 50 hours of community work each. You will attend any programme to address your drug problems, as directed by the probation service. And you will pay the cost of the prosecution of $1500 tala each. You will pay that amount through the Probation Service by monthly payment of $300 tala. As for the defendant Solofa your participation in this offending was very minor and insignificant. Unfortunately you looked at the financial side rather than protecting yourself from breaching our narcotics act. Taxi drivers who have appeared for offences involving drugs have had their commercial licenses cancelled because of the nature of the offending. You have expressed your remorse and I accept your apology. For your offending you are convicted and ask to come up for sentence within 12 months. If you do not reoffend this is the end of the matter.

JUSTICE VAAI