Police v Fetalaiga [2016] WSSC 108 (5 July 2016)

SUPREME COURT OF SAMOA
Police v Fetalaiga [2016] WSSC 108

Case name:	Police v Fetalaiga
Citation:	[2016] WSSC 108
Decision date:	05 July 2016
Parties:	POLICE and SILA FETALAIGA, male of Iva (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	The accused is convicted of the offence of possession of narcotics and sentenced to two years imprisonment. He is convicted of the offence of possession of seeds and sentenced to two years imprisonment. Sentences to be served concurrently.
Representation:	A. Tumua for Prosecution Accused in person
Catchwords:	Possession of narcotics – marijuana – 3 ½ years imprisonment starting point – substantial quantity – early guilty plea
Words and phrases:
Legislation cited:	Narcotics Act 1967 ss 7; 18; 6(b)
Cases cited:	Police v Maposua[2010] WSSC 85 Police v Masame [2007] WSSC 92
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SILA FETALAIGA male of Iva
Accused

Counsel:
A. Tumua for Prosecution
Accused in person

Sentence: 5 July 2016

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of knowingly being in posse of narcotics, nam, namely cannabis substances, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalt14 years imprisonment pursupursuant to s18, and one charge of possession of seeds of a prohibited plant contrary to s6(b) of the Narcotics Act 1967. It also carries a maximum penalty of 14 years imprisonment.
2. On 23 May 2016, he pleaded guilty to both charges.

The offending

3. According to the Summary of facts accepted by the accused, on 6 May 2016, the Police received information from an informant that the accused was in possession of narcotics. The Police found the accused at the informant’s shop. The accused had a black bag. The bag contained;
   1. 245 rolled cigarettes of dried marijuana leaves;
   2. 30 small dried branches marijuana leaves estimated to yield 7 marijuana cigarettes; and
   100. 108 marijuana seeds

The accused

4. The accused is 26 years old. He is single and employed as a planter.
5. He is a first offender.

Aggravating features of the offending

6. The substantial quantity of marijuana is the first aggravating factor in this case. There was enough marijuana in his possession to produce 252 marijuana cigarettes and he also had in his possession 108 marijuana seeds.
7. The second is that it was clearly intended for commercial sale for financial gain given the quantity found on the accused.
8. The third aggravating factor is that there is a cultivation intent given the quantity of marijuana seeds.

Mitigating factors

9. The accused guilty plea at the earliest opportunity is a mitigating factor.

Discussion

10. I am mindful that the objective is deterrence, not punishment for offences of the same kind committed by others. I am also mindful that the sentence depends on the circumstances of each case.
11. There has been a consistency in the imposition of harsher penalties on person engaged in commercial distribution and financial gain.(see Police v Maposua[2010] WSSC 85)
12. This is in line with the judicial response to such offending. In Police v Masame [2007] WSSC 92, his CJ Sapolu said that for many years now, the attitude of the Court has been to impose custodial sentences in narcotics cases because of the high prevalence of this type of offending unless there are exceptional circumstances which would justify a non-custodial sentence.
13. Having regard to the high maximum penalty of 14 years imprisonment for possession of narcotics, the need for deterrence, and the aggravating features of his offending, a custodial sentence is an appropriate sentence.
14. There are no exceptional circumstances in this case to justify a non-custodial sentence.
15. Having regard to the aggravating features of the offending, and the need for deterrence, 1 will take 3 ½ years imprisonment as a starting point for sentence. I will deduct 30% or 1 year and 6 months for his early guilty plea.

Sentence

16. The accused is convicted of the offence of possession of narcotics and sentenced to two years imprisonment.
17. He is convicted of the offence of possession of seeds and sentenced to two years imprisonment.
18. Sentences to be served concurrently.
19. Time spent in custody is to be deducted.
    

JUSTICE TUALA-WARREN