Police v Avia [2015] WSSC 51 (22 May 2015)

SUPREME COURT OF SAMOA
Police v Avia, Tauga and Tamaseu [2015] WSSC 51

Case name:	Police v Avia, Tauga and Tamaseu
Citation:	[2015] WSSC 51
Decision date:	22 May 2015
Parties:	POLICE (prosecution) v AVIA, TAUGA and TAMASEU (accused)
Hearing date(s):
File number(s):	S1142/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- The accused Senetenari is convicted and sentenced to 6 months supervision and ordered to perform 25 hours of community work as directed by the probation service. - The accused Livigisitone is also convicted and sentenced to 6 months supervision and ordered to perform 25 hours of community work as directed by the probation service. - The accused Faith is convicted and sentenced to 8 months supervision and ordered to perform 30 hours of community work as directed by the probation service. - As a further special condition of the terms of supervision of all three accused, they are also ordered to attend the drug and alcohol programme by the probation service.
Representation:	R Titi for prosecution Accused in person
Catchwords:	Possession of narcotics – maximum penalty – early guilty pleas – aggravating and mitigating features relating to the offending – previous good characters - sentence
Words and phrases:
Legislation cited:	Narcotics Act 1967(s.7)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1142/15

BETWEEN

P O L I C E
Prosecution

A N D

SENETENARI AVIA male of Matatufu, Lotofaga, LIVIGISITONE TAUGA male of Faleu, Manono, and Magiagi and FAITH MISILUKI TAMASEU male of Tauese.

Accused

Counsel:
R Titi for prosecution
Accused in person

Sentence: 22 May 2015

S E N T E N C E

The charge

1. The three accused in this matter appear for sentence on a joint charge of possession of narcotics, namely, one marijuana joint, 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. According to the prosecution’s summary of facts confirmed by the accused, on 12 March 2015 the accused were seen smoking marijuana on the campus of the National University of Samoa (NUS) by a security guard. When the security guard approached the accused, the third named accused Faith Misiluki Tamaseu ran away. The security guard found one marijuana joint in the possession of the other two accused. These two accused were then taken to the office of the student counsellor who contacted the police. The third named accused who ran away was later found by the police the same day.

The accused

3. The accused Senetenari Avia as it appears from the summary of facts and his pre-sentence report is 19 years of age. He is from the village of Matatufu, Lotofaga, and is currently attending the NUS school of maritime training. He is a first offender and the testimonials from the pastor of his church and the pulenuu of his village show that he has been a person of good character. His brother also told the probation service that Senetenari is reliable and trustworthy. However, Senetenari told the probation service that he started consuming marijuana this year when he entered the NUS due to the influence of friends.
4. The accused Livigisitone Tauga as it appears from his pre-sentence report is 20 years of age. He is from the villages of Faleu, Manono, and Magiagi. He is also currently attending the NUS school of maritime training. He is a first offender and the testimonials from his father and the pastor of his church show that he has been a person of good character. However, Livigisitone told the probation service that he started consuming marijuana this year due to the influence of friends at school. He also told the probation service that smoking marijuana changes his mood and makes him happy.
5. The accused Faith Misiluki Tamaseu as it appears from the summary of facts and his pre-sentence report is 19 years of age. He is from the village of Tauese in Apia and is also currently attending the NUS majoring in tourism and hospitality. He has a previous conviction in 2012 for a different type of offence. Faith told the probation service that he drinks alcohol and smokes cigarettes but does not smoke marijuana. Whether this is true or not, it appears from Faith’s pre-sentence report that it was him who obtained from someone at the Savalalo flea market the marijuana joint for which he is now being charged with the other two accused Senetenari and Livigisitone.

Aggravating features relating to the offending

(a) Place of offending

6. I will accept the suggestion from counsel for the prosecution that in relation to all three accused the place of this offending should be regarded as an aggravating feature relating to the offending. Smoking a cigarette at school by a student is usually treated as something serious that calls for disciplinary action. The same should go for smoking marijuana by a university student on the campus of the university.

(b) Provision of marijuana joint

7. The marijuana joint with which the accused have been charged was provided by Faith. He told the probation service that he obtained this joint from someone at the Savalalo flea market. This would be an aggravating feature relating to the offending by the accused Faith. He evidently initiated the offending.

Mitigating features relating to the accused as offenders

(a) Youth

8. The relatively young age of the accused is a mitigating feature relating to each of them as offender. So is the fact that they are still students.

(b) Previous good character

9. Previous good character is a mitigating feature relating only to the accused Senetenari and Livigisitone as offenders but not the accused Faith. However, because they had already started consuming marijuana this year before they became involved in the present offending; this would affect the weight to be given to their previous good characters as a mitigating feature. The Court is here concerned with ‘previous good character’, not ‘previous perfect character’.

(c) Guilty pleas

10. The early guilty pleas by the accused is an important mitigating feature relating to them as offenders.

Discussion

11. Having regard to the aggravating features relating to the offending and the mitigating features relating to the accused as offenders, as well as the quantity of marijuana in the possession of the accused, I have decided to impose non-custodial sentences. But I must warn the accused that if any of them re-offends in the future, especially in the near future, and is brought before the Court again, that person runs a real risk of going to prison. So it is in your interests not to re-offend.

Result

12. The accused Senetenari is convicted and sentenced to 6 months supervision and ordered to perform 25 hours of community work as directed by the probation service.
13. The accused Livigisitone is also convicted and sentenced to 6 months supervision and ordered to perform 25 hours of community work as directed by the probation service.
14. The accused Faith is convicted and sentenced to 8 months supervision and ordered to perform 30 hours of community work as directed by the probation service.
15. As a further special condition of the terms of supervision of all three accused, they are also ordered to attend the drug and alcohol programme by the probation service.

Chief Justice Sapolu