Police v Tualagi [2016] WSSC 109 (7 July 2016)

SUPREME COURT OF SAMOA
Police v Tualagi [2016] WSSC 109

Case name:	Police v Tualagi
Citation:	[2016] WSSC 109
Decision date:	07 July 2016
Parties:	POLICE and TEVITA TUALAGI male of Togafuafua (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 5 offences of possession of narcotics and one offence of possession of seeds and sentenced to 4 years imprisonment. Time spent in custody is to be deducted.
Representation:	A. Tumua for Prosecution R. Papalii for Accused
Catchwords:	Possession of narcotics –previous convictions of similar nature –substantial quantity of marijuana –custodial sentence
Words and phrases:
Legislation cited:	Narcotics Act 1967 ss. 6(b); 7; 18;
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

TEVITA TUALAGI, male of Togafuafua
Accused

Counsel:
A. Tumua for Prosecution
R. Papalii for Accused

Sentence: 7 July 2016

S E N T E N C E

The charge

1. The accused appears for sentence on five charges of knowingly being in possession of nacs, namely mely cannabis substances, contrary to s.7 of the NarcoAct 1967, which carries a maximum penalty of 14 years imprisonment pursuant to s18, and, 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. He entered not guilty pleas through Counsel to all charges.
3. On 9 June 2016, the day of the trial, he was granted leave by the Court to change his pleas to these charges.

The offending

4. According to the Summary of facts accepted by the accused, on 4 April 2015 at 11.20am, the Police received a call from an informant that the accused was distributing marijuana from his residence at Togafuafua. The Police went to the residence of the accused and found;
   • 596 dried branches of marijuana with leaves weighing at 139.4 grams;
   • Loose marijuana leaves weighing at 96.1 grams;
   • Loose marijuana leaves weighing at 31.8 grams;
   • 12 dried branches of marijuana with leaves and 5 green branches of marijuana weighing at 19 grams;
   • 21 branches of marijuana stalks without leaves; and
   • 3928 marijuana seeds.
5. The total marijuana cigarettes estimated to be produced from the marijuana substances found on the accused is 408.
6. The accused has previous convictions for similar offending.

The accused

7. The accused is 40 years old. He is married with six children, ranging in age from 1 to 6 years old.
8. He is unemployed and suffers from gout. He claims to consume marijuana for medicinal reasons to help him with his gout. His family depends financially on his wife who works.

Aggravating features of the offending

9. The substantial quantity of marijuana is the first aggravating factor in this case. There was enough marijuana in his possession to produce 408 marijuana cigarettes and he also had in his possession 3928 marijuana seeds.
10. The second is that it was clearly intended for commercial sale for financial gain given the quantity found on the accused.
11. The third aggravating factor is that this distribution was done from home, where his wife and children live. His very young children are exposed to narcotics because of his actions.

Aggravating features in respect of the offender

12. It is aggravating that the offender has previous convictions for similar offences, specifically, possession of narcotics in 2013.

Mitigating factors

13. I take into account in mitigation the personal circumstances of the accused, he has a medical condition which is gout and he has very young children who will suffer as a result of his sentence today.
14. The accused guilty plea although belated is a mitigating factor and he will be given some credit for it.

Discussion

15. 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.
16. 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)
17. This is in line with the judicial response to such offending. In Police v Masame [2007] WSSC 92, Chief Justice 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.
18. 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.
19. There are no exceptional circumstances in this case to justify a non-custodial sentence. There must come a point when the accused thinks of his young children. Unfortunately he did not think of him when he offended. They will be left without a father. This is an unfortunate consequence, often overlooked, which would be extremely upsetting for his children.
20. In passing sentence, I will apply the totality principle to all charges. 1 will take 5 ½ years imprisonment as a starting point for sentence. I will add 6 months for his previous offending, taking the starting point to 6 years. I deduct 6 months for compassionate reasons in that he suffers from a medical conditional and another 6 months for his young children. I will deduct 20% or 1 year for his guilty plea.

Sentence

21. The accused is convicted of the 5 offences of possession of narcotics and one offence of possession of seeds and sentenced to 4 years imprisonment.
22. Time spent in custody is to be deducted.
    

JUSTICE TUALA-WARREN