Police v Enelagi [2015] WSSC 208 (10 November 2015)

IN THE SUPREME COURT OF SAMOA
Police v Tuaoimaaiga Vaiao ENELAGI [2015] WSSC 208

Case name:	Police v Tuaoimaaiga Vaiao ENELAGI
Citation:	[2015] WSSC 208
Decision date:	10 November 2015
Parties:	Police (prosecution) v Tuaoimaaiga Vaiao ENELAGI, male of Lepale Fasitoo-uta (defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	Convicted and sentenced to 22 months’ imprisonment
Representation:	Ms Ioane for the Prosecution Defendant appears in Person
Catchwords:	cultivation of marijuana – possession of unlawful ammunition – possession of unregistered firearm – charged earlier for same offence – narcotics –
Words and phrases:
Legislation cited:	Crimes Act 2013
Cases cited:
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

TUAOIMAAIGA VAIAO ENELAGI, male of Lepale Fasitoo-uta
Defendant

Counsel:
Ms Ioane for the Prosecution
Defendant appears in Person

Hearing Date: 10 November 2015

SENTENCE OF JUSTICE TUATAGALOA

1. Tuaoimaaiga you are to be sentenced today on three (3) offences that you have pleaded guilty to on 9 November 2015. These are:
   • ∗ Cultivation of 10 marijuana plants, maximum of 14 years’ imprisonment;
   • ∗ Possession of unlawful 9mm ammunitions, maximum of five years’ imprisonment or $10,000 fine or both;
   • ∗ Possession of unregistered firearm, maximum of two years’ imprisonment or $5,000 fine or both.

The offending:

2. You have confirmed the summary of facts as read out by prosecution on 7/12/15 which basically says that:
   • ∗ On 6 October 2015 the police officers with a search warrant carried out a search of your premises and located 10 marijuana plants growing in barrels and coconut shells behind your house.
   • ∗ The police also found an unlicensed 22 single shot rifle and seven (7) illegal 9mm bullets.
   • ∗ You were at home when the police carried out the search.

The accused:

3. The accused is 52 years old, in a de facto relationship of Fasitoo-uta with seven children ages ranging from 32 years – 19 years old. He has a long list of previous offending and with marijuana dating back to 2000.
4. In the pre-sentence report the accused told probation that he bought the rifle from the same person who gave him the marijuana seeds but did not want to reveal who this person is.
5. The accused told the Court that the illegal 9mm bullets were those of a pistol that was seized by the police in 2007 and was charged and had served time for that offence.

Aggravating Factors:

6. Aggravating factors personal to the offender is his previous offending and especially his long relationship with narcotics since 2000. He also has armed and possession of unlawful weapon convictions.
7. Aggravating factors personal to the offending are:
   • ∗ The amount of marijuana plants found.
   • ∗ Intention that is behind the growing of the marijuana plants, that is, growing or cultivation is an offence in itself but there is a reason(s) behind it – to sell or personal use. In most cases it is mainly to sell.

Mitigating factors:

8. The only mitigating factor I find is the accused early plea.

Discussion:

9. The Court has always imposed a custodial sentence where narcotics are involved. This case is no different.
10. Despite being sentenced in 2007 with similar offending, this did not deter you as you are now again before the Court for similar offences as those you were convicted of in 2007.
11. I see from your previous convictions that you were first convicted with the possession of narcotics in 2000 and the Court imposed a three month suspended sentence upon you. You at that time were 43 years old.
12. Your next narcotic offending was seven years later in 2007. This time it was not possession but cultivation of marijuana and at the same time you were in possession of an unlawful firearm. This time because your offending had escalated to becoming much more serious and dangerous as it involves firearm, the Court imposed a custodial sentence of three years’ and three months’ concurrent. You were in 2007 50 years old.
13. From serving your three years and three months sentence imposed, you would have been released sometime in 2012 and two to three years later in 2015 you are again before the Court for the same offending.
14. The Court noted from the pre-sentence report of a likely addiction by you of marijuana. The Court is also aware of the village that you reside in as one, if not, the ‘King Pin’ village of marijuana in this country. If you had really wanted to get away from having any further association with this criminal activity, you would have already done something about it. You are now 58 years’ old and still have not learnt anything.
15. Since the accused offending in 2007 when the cultivation of narcotics was a maximum of seven years’ imprisonment, the new Crimes Act 2013 increases the maximum penalty to a maximum of 14 years’ imprisonment. Also in 2007 you were found with 55 marijuana plants.

Starting point:

• Cultivation: I will take 12 months starting point and add another 12 months to reflect your criminal behaviour and no regard for the law in re-offending; less 1/3 discount for early plea leaving 16 months’ imprisonment.
• Possession of unlicensed firearm: The firearm found is legal in this country but the accused had not registered the firearm as required under the law. I imposed six months’ imprisonment and the firearm is to be destroyed by the police.
• Possession of unlawful ammunition: I accept what the accused told the Court that the ammunitions belong to a pistol that was seized by the police that he was charged with in 2007. You are convicted and discharged for this offence.

16. The sentences for cultivation and possession of unlicensed firearm are to be cumulative therefore, you are to serve a 22 month imprisonment term.
    

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Justice Mata Keli Tuatagaloa