Police v Saifoloi [2016] WSSC 169 (22 August 2016)

THE SUPREME COURT OF SAMOA
Police v Saifoloi [2016] WSSC 169

Case name:	Police v Saifoloi
Citation:	[2016] WSSC 169
Decision date:
Parties:	POLICE (Prosecution) v PISI SAIFOLOI male of Fasitoo-Uta (Accused)
Hearing date(s):	22 August 2016
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	The accused is convicted and ordered to come up for sentence in 12 months time. A condition of this sentence is that he is not to reoffend by committing any other offences under the Narcotics Act 1967. If he does, he will be sentenced on this offence and any others which may be proved against him.
Representation:	L. Su’a-Mailo for Prosecution Accused in person
Catchwords:	unlawful cultivation of prohibited plants
Words and phrases:
Legislation cited:	Narcotics Act 1967 contrary to s.6(a)
Cases cited:	Police v Keresoma [2014] WSSC 68 (14 November 2014), R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PISI SAIFOLOI male of Fasitoo-Uta
Accused

Counsel:
L. Su’a-Mailo for Prosecution
Accused in person

Sentence: 22 August 2016

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of unlawful cultivation of prohibited plants, contrary to s.6 (a) of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment.
2. He pleaded guilty to the charge on 4 July 2016.

The offending

3. On 26 June 2016, when Police went to the home of the accused in relation to a report from his wife of domestic violence, they found a plastic bottle containing a marijuana plant placed on a tree near the home of the accused. The marijuana plant is 3 inches tall.

The accused

4. The accused is 33 years old, married with no children. Since leaving school, he has only had one job. Currently he tends the family plantation and lives with his wife’s family.
5. He told Probation that he does not consume marijuana nor did he intend to sell the plant. He says he found the plant on his land so he put it into a small pot and hid it. He wanted to observe how it grew.
6. His sister told Probation that this offending is out of character for her brother.
7. The accused has completed the 6 weeks programme for drugs and alcohol carried out by Probation for the Alcohol and Drugs Court. His report says that he was an active participant who engaged well in all the topics. He has a certificate of completion to confirm his attendance.
8. He told the Court that he found the program very useful and he does not want to appear in Court again.
9. Probation recommends a community based sentence.
10. The accused is a first offender.

Discussion

11. Having considered the circumstances of this case including the quantity of marijuana found on the accused (being one (1) 3 inch marijuana plant), I have decided to impose a non-custodial sentence.
12. In saying this, I am mindful of the case of Police v Keresoma [2014] WSSC 68 (14 November 2014) in which Chief Justice Sapolu stated;
    • To impose a non-custodial sentence could send the wrong message that growing one marijuana plant is now condoned in spite of the recent increase in the maximum penalty for possession and cultivation an establisablished sentencing policy of this Court.
13. I ao mindful of often-cited case of R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 where the New Zealand Court of Appeal classified cultivation&#1f cannabinnabis plants into three categories for sentencing purposes. In that case, the Court said at page 64 in relation to category 1 as follows:
    • “Category 1: consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited”.
14. I acknowledge that the New Zealand Courts were dealing with a much lesser maximum penalty, being 7 years imprisonment.
15. The distinguishing factor for me is the participation by the accused in the program run by the Alcohol and Drugs Court in Samoa, which was not available for the accused in Police v Keresoma who was given an imprisonment term of 3 months for cultivating one marijuana plant.
16. The accused has completed the 6 weeks programme and this is a mitigating factor in his favour. He has now had the benefit of the psycho-education programme for drugs and alcohol. But this sentence cannot be taken as meaning that the behaviour of the accused is condoned. He will be subject to a deterrent sentence today, so that if he reoffends, he will be brought back before the Court.
17. The Court cautions the accused against further narcotics offending as these offences carry high penalties. The next time the accused appears in Court for similar offences, he will not be sent to a programme, and most certainly will face a custodial sentence.

Sentence

18. The accused is convicted and ordered to come up for sentence in 12 months time. A condition of this sentence is that he is not to reoffend by committing any other offences under the Narcotics Act 1967. If he does, he will be sentenced on this offence and any others which may be proved against him.

JUSTICE TAFAOIMALO TUALA-WARREN