Police v Luatutu [2015] WSSC 108 (29 September 2015)

SUPREME COURT OF SAMOA
Police v Luatutu [2015] WSSC 108

Case name:	Police v Luatutu
Citation:	[2015] WSSC 108
Decision date:	29 September 2015
Parties:	POLICE v TUUAGA LUATUTU, UPUMONI TAVITA and ULU FONOFILI all males of Salua, Manono.
Hearing date(s):
File number(s):	S2266/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Each of the accused is convicted and sentenced to 3 months imprisonment.
Representation:	R Titi for prosecution Accused in person
Catchwords:
Words and phrases:	Possession of narcotics – quantity of marijuana substances – maximum penalty – most prevalent type of offence – aggravating and mitigating features – starting point for sentence
Legislation cited:	Narcotics Act 1967, s.7 s.18
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2266/15

BETWEEN

P O L I C E

Prosecution

A N D

TUUAGA LUATUTU, UPUMONI TAVITA and ULU FONOFILI all males of Salua, Manono.

Accused

Counsel: R Titi for prosecution

Accused in person

Sentence: 29 September 2015

S E N T E N C E

The charge

1. The three accused Tuuaga Luatutu (Tuuaga) aged 47 years, Upumoni Tavita (Upumoni) aged 21 years, and Ulu Fonofili (Ulu) aged 19 years are all from the village of Salua, Manono. They appear for sentence on one charge of possession of narcotics, namely, marijuana leaves, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment pursuant to s.18. To the charge, the accused pleaded guilty at the earliest opportunity.

The offending

2. As shown from the prosecution’s summary of facts, admitted by all three accused, on Sunday night 19 July 2015, the Faleata police were conducting their usual patrol around the Faleata sports complex when they came across a car parked at Osone street with the three accused standing behind the car. The police stopped their vehicle and told the accused to leave the area as no one is allowed to hang around there. As the police were about to leave, they smelt a strong scent of marijuana coming from the accused. The police officers then conducted a body search on all three accused. They found inside the pocket of the accused Ulu a plastic bag which contained marijuana leaves estimated to yield two marijuana joints. The police officers then searched the car of the accused and found underneath the back wheel two plastic packets of marijuana leaves estimated to yield three marijuana joints. The total marijuana substances found by the police were therefore estimated to yield five marijuana joints.
3. As it appears from the pre-sentence report, the accused Upumoni told the probation service that they were attending the Annual Conference of the Methodist Church which was held at Faleula. On the night in question, the three accused decided to go for a ride in Upumoni’s car. It was then about 11pm. Upumoni told the probation service that when they came to the Maota o Samoa supermarket on the opposite side of the road from the Tuanaimato sports complex, a youth stopped their car. When they pulled over, this youth asked whether they wanted to buy marijuana. The accused Ulu then gave $10 to this youth in exchange for the marijuana. They then drove to a deserted area behind the aquatic centre in the Tuanaimato sports complex and started smoking the marijuana when the police unexpectedly arrived. I have to say that in the circumstances narrated by Upumoni to the probation service, I do not believe his story about their car being stopped by a youth who wanted to sell them marijuana.

The accused

4. The accused Tuuga is single, unemployed, and stays with his parents at Salua, Manono. He is a first offender and his good character testimonials from his sister, the pastor of his church, and the pulenuu of his village show that he had been a person of good character prior to his commission of this offence. He also told the probation service that he had never consumed marijuana before and this was the first time he had smoked marijuana.
5. The accused Upumoni is single and both a planter and a fisherman. He stays with his parents at Salua, Manono. He is a first offender and the good character testimonials from his mother, the pastor of his church, and the pulenuu of his village show that he had been a person of good character prior to his commission of this offence. He also the probation service that this was the first time he had smoked marijuana.
6. The accused Ulu is single and stays at Salua, Manono, with his parents. He assists his family by working on their plantation and by fishing. He earns about $30 a week from selling produce from his family’s plantation and catches of fish when he goes fishing. He is also a first offender. The character testimonials from Ulu’s mother, the pastor of his church, and the pulenuu of his village show that he had been a person of good character. However, Ulu told the probation service that he had been smoking marijuana for four months prior to this offending. He smoked marijuana due to peer pressure.

Aggravating features relating to the offending

Quantity of marijuana substance

7. The only aggravating feature relating to the offending is the quantity of marijuana substances found in the possession of the accused.

Mitigating features relating to the accused as offenders

(a) Previous good character

8. Evidence of previous good character is a mitigating feature relating to each of the accused as offender.

(b) Guilty pleas

9. The early guilty plea to the charge by each of the accused is an important mitigating feature relating to each of the accused as offender.

Discussion

10. Marijuana related offences have been the most prevalent type of offence in Samoa for a very long time. As a result, custodial sentences have always been imposed by the Courts as a matter of policy unless there are special circumstances to justify a non-custodial sentence. The predominant sentencing consideration has been deterrence. Recently, I have noticed a decline in the incidence of this type of offending. However, I am not confident that it is time for the Court to review its sentencing policy.
11. Having regard to the aggravating feature of the offending, I will take 6 months as the starting point for sentence. I will deduct one month in respect of each of the accused as offender for previous good character. That leaves 5 months. For their early guilty pleas to the charge against them, I will deduct a further 2 months. That leaves 3 months.

The result

12. Each of the accused is convicted and sentenced to 3 months imprisonment.

CHIEF JUSTICE