Police v Niko [2016] WSSC 24 (29 February 2016)

IN THE SUPREME COURT OF SAMOA
Police v TJ NIKO & Anor [2016] WSSC 24

Case name:	Police v TJ Niko & Anor
Citation:	[2016] WSSC 24
Decision date:	29 February 2016
Parties:	Police (informant) and TJ NIKO male of Taufusi and Safotu Savaii; and Leauma SAKALAKA male of Faleseela and Vaitele Fou
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	Each accused is sentenced to five (5) months’ imprisonment to be served cumulatively to their current terms
Representation:	Mr Ofisa for the Prosecution Defendants in Person
Catchwords:	Possession of narcotics – marijuana – prisoners on weekend release –
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

TJ NIKO, male of Taufusi and Safotu Savaii and LEAUMA SAKALAKA, male of Faleseela and Vaitele Fou
Defendants

Counsel:
Mr Ofisa for the Prosecution
Defendants in Person

Date: 29 February 2016

SENTENCING OF JUSTICE TUATAGALOA

1. The two accused are appearing for sentence of the charge of possession of a marijuana cigarette they are jointly charged with. Both accused pleaded guilty on 25 January 2016. The offence carries a maximum penalty of 14 years’ imprisonment.

The offending:

2. Both accused confirmed the summary of facts as read out to them which basically says that:
   • They were released out on the weekend and it was during that time that a police officer found them smoking a marijuana joint at the conservation area at Sogi on the same day they were released from prison for the weekend on 07 December 2015.

The accused:

3. Both accused have previous convictions and were currently serving terms at Tafaigata Prison.
4. The accused TJ Niko has previous convictions of the same offence of possession of narcotics dating back to 2011 together with burglary, theft and causing injury.
5. The accused Leuma Sakalaka has a long list of previous convictions dating back to 2009 of burglary, theft and a lot of escapes from prison with the latest escape committed in 2015.

Aggravating and Mitigating factors:

6. The aggravating factors personal to both accused are their previous convictions. The aggravating features of their offending are that they committed the offence on the same day they were released out for the weekend and they committed it at a public place. This showed a total disregard to the law and no remorse at all to their current situations that they were currently serving time at Tafaigata prison.
7. The only mitigating factor is their early pleas.

Discussion:

8. The accused TJ Niko who has a previous conviction of possession was referred for screening by the Alcohol and Drug Court Clinician to see if he was suitable for treatment in the Alcohol and Drug Court. He was found not suitable but the Alcohol and Drug Court Clinician recommended that he undergo the Alcohol and Drug Education Programme after serving his current term.
9. This recommendation is not a viable option given that the accused, TJ Niko, has about four years’ imprisonment or so to serve. This accused will be sentenced accordingly.
10. The prosecution has provided the Court with a range of sentencing decisions of this Court in which circumstances and quantity found are very similar to this matter.
11. Of interest from the previous records of the two accused is that they started offending at the age of 15 and have continued to do so to date. The accused, TJ Niko, is now 21 years’ old and the accused Leuma Sakalaka is now 23 years’ old.
12. A starting point of eight months for both accused, less three months (1/3) for their early pleas, this leaves five months’ imprisonment.
13. Each accused is sentenced to five (5) months’ imprisonment to be served cumulatively to their current terms.
    

_____________________________
Laulusā Justice Mata Tuatagaloa

ADDENDUM:
The Court is concerned that both accused have a long history of offending with still about three - four years’ imprisonment terms left and yet were still allowed out on weekend leave. The Court urge the Corrections and Prisons Authority to reconsider their policies of weekend leave taking into consideration a prisoner’s history of offending, nature of offending and the length of term left to be served.