Police v Pene [2015] WSSC 44 (15 April 2015)

SUPREME COURT OF SAMOA
Police v Pene [2015] WSSC 44

Case name:	Police v Pene
Citation:	[2015] WSSC 44
Decision date:	15 April 2015
Parties:	POLICE (prosecution) v DANIEL TOLUONO PENE (accused)
Hearing date(s):
File number(s):	S4373/14-S4394/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 4 months imprisonment on each of the two charges against him. - Both sentences to be concurrent
Representation:	R Titi for prosecution Accused in person
Catchwords:	Possession of narcotics – possession of marijuana substances – aggravating and mitigating features - maximum penalty –early guilty plea – penalty imposed by village council - previous good character - sentence
Words and phrases:
Legislation cited:	Narcotics Act 1967, s.7 s.18, 5.6, s.18
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S4373/14-S4394/14

BETWEEN

P O L I C E
Prosecution

A N D

DANIEL TOLUONO PENE male of Vailoa Palauli
Accused

Counsel:
R Titi for prosecution
Accused in person

Sentence: 15 April 2015

S E N T E N C E

The charges

1. The accused appears for sentence on two charges of possession of narcotics. The first charge is one of the possession marijuana substances, namely, loose marijuana leaves, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment under s.18, and the second charge is one of possession of marijuana substances, namely, marijuana seeds, contrary to 5.6 of the Act, which also carries a maximum penalty of 14 years imprisonment under s.18. To both charges the accused pleaded guilty at the earliest opportunity.

The offending

2. As the prosecutions summary of facts shows, on 17 January 2015, a police officer who was off duty saw the accused selling marijuana at the Salelologa market and called the police at the Tuasivi police station. When the Tuasivi police arrived, the accused was not at where he was selling marijuana. The police then looked for him. When the police found him they searched him and loose marijuana leaves and 100 marijuana seeds in the pockets of his pants. The police then took the accused to the Tuasivi police station where he was cautioned and interviewed. The accused admitted to being the owner of the marijuana substances.
3. The loose marijuana leaves weighed 25.5 grams and is estimated to yield thirty six marijuana joints.
4. I do not accept the suggestion in the prosecution’s sentencing memorandum that given that the accused was selling marijuana and was in possession of marijuana seeds there is a great possibility and likelihood that the accused was involved in the cultivation of marijuana so he can sell them. I also do not accept that this should be considered as an aggravating feature relating to the offending. It is too speculative and therefore unsafe to accept.
5. In the first place, if the prosecution had considered that there was sufficient evidence with which to charge the accused with cultivation of marijuana then they should have charged the accused with cultivation. But that has not been done. It suggests that the prosecution does not have the necessary evidence to lay a charge of cultivation. Secondly, there is nothing in the summary of facts admitted by the accused about cultivation. To accept now for sentencing purposes the prosecution’s suggestion that the possession of marijuana seeds implies that the accused was involved in the cultivation of marijuana would be to accept that the accused was also involved in a separate and serious offence of which he has not been charged and to which he has admitted. I am not prepared to do this. I am also not convinced that it necessarily follows that because the accused was in possession of marijuana seeds, he was therefore involved in the cultivation of marijuana. Many of the previous cases of possession of marijuana leaves or marijuana seeds show that the seeds of the marijuana plant stick to its leaves. Seeds often fall off from the leaves.

The accused

6. The accused is a 20 year old male from Vailoa, Palauli. He is pursuing studies for a diploma in nursing at the National University of Samoa and is expected to graduate this year.
7. The accused is a first offender and oral testimonials from his parents and the written testimonials from the pastor and pulenuu of his village all show that the accused had been a person of good character prior to the commission of these offences. However, it appears from the pre-sentence report that the accused told the probation service that he started smoking marijuana in Christmas last year as a result of peer association.
8. The accused has also been penalised by the Alii and Faipule of his village and his family provided two cattle beasts, two large boars, and forty boxes of canned fish for his penalty.

Aggravating features relating to the offending

(a) Quantity of marijuana substances

9. The accused was in possession of marijuana leaves estimated to yield thirty six marijuana joints and one hundred marijuana seeds.

(b) Commercial purpose

10. According to the off-duty police officer who saw the accused at the Salelologa market, the accused was selling marijuana at the market. The accused was therefore in possession of the marijuana substances for a commercial purpose.
11. I do not accept what the accused told the probation service that he was in possession of the marijuana substances for his own personal consumption. Not only is this inconsistent with what the off-duty police officer said he saw the accused doing at the Salelologa market, but marijuana seeds cannot consumed and marijuana leaves estimated to yield thirty six joints is too much marijuana for one individual to consume on his own. I therefore do not believe that the accused was in possession of the marijuana substances for his own personal consumption.

(c) Seriousness of the offence

12. While the court takes into account for sentencing purposes the maximum penalty provided for an offence, the maximum penalty of the offence is not part of the offending itself. For the purposes of the starting point approach for sentencing, the court focuses on the features which aggravate the offending in order to determine the criminality of the offending. Implicit in that exercise is the fact that the Court is conscious of the maximum penalty provided for the offence. But the maximum penalty is not part of the offending. I, therefore, do not accept that submission by the prosecution that the seriousness of the offence based on the maximum penalty of 14 years imprisonment is an aggravating feature relating to the offending. One need not overlook the distinction between an ‘offence’ and an ‘offending’. The ‘offence’ is prescribed in the Act but the ‘offending’ relates to the acts committed by the accused which constitute the offence.

(d) Offending at a public place

13. I am also unable to accept that, in this case, the fact that this offending occurred in a public place adds anything more to the aggravating feature that the accused was seen selling marijuana substances at the Salelologa market, as suggested by the prosecution in its submissions. The important point is that the accused was disseminating marijuana substances by selling them to other members of the public.

Mitigating features relating to the accused as offender

(a) Previous good character

14. The accused is a first offender and it appears from the testimonials provided on his behalf that he had been a person of good character prior to the commission of these offences. This is notwithstanding his admission to the probation service that he started smoking marijuana on Christmas Day last year due to peer association. However, what we are concerned with here is ‘previous good character’ and not ‘previous perfect character’.

(b) Penalty by village council

15. The accused has already suffered punishment because of the penalty imposed by the Alii and Faipule of his village. As mentioned, his family provided two cattle beasts, two large boars, and forty boxes of canned fish which is a substantial penalty.

Early guilty plea

16. The accused has pleaded guilty to the charge against him at the earliest opportunity.

Discussion

17. As there are two charges of possession of narcotics relating to the possession by the accused of marijuana leaves and marijuana seeds at the same time, I will apply the totality principle of sentencing. Having regard to the need for deterrence with this type of case and the aggravating features relating to the offending, I will take 15 months as the starting point for sentencing. I will deduct 2 months for previous good character. That leaves 13 months. I will deduct another 4 months for the penalty imposed by the Alii and Faipule of the accused’s village. That leaves 9 months. I will deduct 1/3 or 3 months for the early guilty plea. That leaves 6 months. Given the personal circumstances of the accused, I will show mercy on him and deduct another 2 months. That leaves 4 months.

Result

18. The accused is convicted and sentenced to 4 months imprisonment on each of the two charges against him. Both sentences to be concurrent.

Honourable Chief Justice