Police v Lilo [2017] WSSC 134 (3 July 2017)

IN THE SUPREME COURT OF SAMOA
Police v Lilo [2017] WSSC 134

Case name:	Police v Lilo
Citation:	[2017] WSSC 134
Decision date:	03 July 2017
Parties:	POLICE (Informant) and LILO LILO, male of Fasitoo-tai and Olomanu Rehabilitation (Defendant)
Hearing date(s):	20 June 2017
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	Convicted and sentenced to five months imprisonment.
Representation:	L Sio and F Ioane for Prosecution Defendant Self represented
Catchwords:	Possession, narcotics, defended hearing
Words and phrases:	no programs had been carried out to prepare him for his release into the community - The unlawful release of prisoners places the community at risk
Legislation cited:	Prisons and Corrections Act 2013, Prisons and Corrections Regulations 2014 section 51-56, section 39, Prisons Weekend Release Regulations,
Cases cited:	Police v Lima [2016] WSDC 20 (11 May 2016); Police v Niko [2016] WSSC 24 (29 February 2016)), Police v Masi [2016] WSSC 204 (29 November 2016) by his Honour Sapolu CJ, Police v Etuale Fuifui (16 April 2012) per his Honour Vaai J.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

LILO LILO, male of Fasitoo-tai and Olomanu Rehabilitation.
Defendant

Counsel:
L Sio and F Ioane for Prosecution
Defendant self Represented

Sentence: 03 July 2017

SENTENCING OF CLARKE J

1. The accused appears for sentencing on 1 charge of knowingly having in his possession narcotics, namely cannabis substance (1 cigarette of marijuana leaves wrapped in a white rolling paper) weighing 0.4 grams (S108/17).
2. The accused pleaded not guilty and following a defended hearing on the 19^th May 2017, I found him guilty of the charge.

The Offending:

3. In my written judgment dated 6 June 2017, I set out in detail the evidence at trial. Briefly stated, the accused had been “released” by the Prisons and Corrections Service for the Christmas and New Year period. As he was returning to Olomanu Prison from his weekend release on the 4^th January 2017, a day later than he was due to return, a Prison Officer and Police Officer came across the accused and a fellow prisoner as they were walking towards the Prison. The accused acted suspiciously and he was then questioned by the Prison Officer. As he was asked to empty his pockets, the accused flicked a marijuana cigarette under the prison vehicle.

The Accused:

4. According to the Pre-sentence Report (PSR), the accused is said to be a 23 year old male born on the 4^th April 1994. He grew up at Fasitoo-Tai. He is currently serving a life sentence for murder, having been convicted of that offence in 2013. He has no medical conditions. References were not able to be obtained for the accused in support of his character. He confirmed his prior conviction entered on the 4^th October 2013 for murder.

Aggravating and Mitigating Factors:

5. The aggravating factors in relation to the accused’s offending are: (a) the accused was serving a prison term when this offending occurred; (b) the offending necessarily involved a high degree of premeditation and planning. I do not accept what the accused said in his PSR that the marijuana was discovered in his back pack when it was searched. This is quite different to his evidence as well as the other evidence at trial.
6. There are no mitigating features in respect of the accused’s offending. In relation to the accused as an offender, an aggravating factor is his prior conviction for murder. Whilst it is different in nature to this offending, it nevertheless is an aggravating feature personal to the accused.

Discussion:

7. Prosecution has applied for an imprisonment term of 6 months.
8. In this case, the accused pleaded not guilty and was found guilty following his trial. When interviewed by the Probation Service, he then gave an entirely different account of his offending to what he told the Court in his evidence at his trial. For the accused, he has shown no remorse nor has he accepted responsibility for his offending.
9. Lilo, I want to say this to you. You are 23 years of age and serving a life sentence for murder. It is one of the most serious of criminal offences under the laws of our country with a mandatory life sentence. Even though you are serving a life sentence, you may become eligible for parole in due course in a number of years. You are young and hopefully you can commit yourself to changing your life. It is possible to do so but to do so, you must be truthful, law abiding and committed to change. You have told a different story to the Probation Service to what you said to me at your trial in your evidence. You have been neither truthful or law abiding. As I said, it is possible to change but the only person that can bring about change in your life is you. If you don’t change, you will continue to see much more of Courts and prison – and that would be a waste of your life.

Prisoner Release by Prisons and Corrections Service:

10. Prior to sentencing the accused, I want to address the release of the accused because this is not the first time this issue has arisen before this Court. During sentencing, the accused stated that he was released on “weekend release” over the Christmas and New Year period. He also said that prior to his release, no programs had been carried out to prepare him for his release into the community.
11. As the accused was convicted of murder on the 4^th October 2013, prosecution was asked to clarify the lawful basis on which it was purported that the accused was released for ‘weekend release’. To be clear, weekend release and short term release are quite different to parole. Weekend release and short term release are administered by the Prisons Service while parole is administered by the Parole Board. Prosecution provided to the Court (a) copy of the determination signed by the Commissioner of Prisons and Corrections Service (“the Commissioner”) dated 31 December 2017 (sic) releasing the accused and (b) a letter dated 27 June 2017 from the Prison and Corrections Service to the Office of the Attorney General explaining the basis for the release of the accused.
12. The Commissioner relied on section 39 and 51(d) of the Prisons and Corrections Act 2013 (‘the Act’) to authorize the release of the accused into the community for what was termed “special release”. In the letter dated 27 June 2017, the Prisons Service referred to Regulations 51 – 56 of the Prisons and Corrections Regulations 2014 (“2014 Regulations”) as relevant to the release of the accused.
13. Section 39 of the Act and regulation 51 – 56 of the 2014 Regulations deal with the classification of prisoners. Neither provide a legal basis for the release of prisoners into the community.
14. In its letter dated 27 June 2017, the Prisons Service refers to section 51(d) of the Act and says that “Lilo Isaako/Lilo Lilo was considered to be eligible for special release given his medium security classification”. It was further stated “[t]his was a practice for special weekend release such as the Christmas and New year period” and “we have maintained a transparent process on this matter...”
15. Section 51(d) of the Act is very clear. Section 51(d) provides:

“51. Weekend and short term release – (1) Regulations are to provide schemes of short term release, including the following:
(a) weekend release;
(b) release from prison to attend a course of instruction;

(c) release into the care and supervision of community leaders for the purpose of facilitating the re-entry of the prisoner into his or her village or community;

(d) any other arrangement permitting short term release to assist in the rehabilitation of a prisoner or facilitate the prisoner’s return to the family, village or community.” (emphasis added)

16. The release of prisoners into the community pursuant to sub-section 51(1) of the Act must be by Regulation. Release of Prisoners under subsections 50(2) and (3) of the Act must also be pursuant to Regulation. The Regulations referred to by the Prisons Service in respect of the release of the accused simply does not apply.
17. In the determination to release the accused and the explanation that followed on 27 June 2017, no reference is made to the Prisons Weekend Release Regulations 2016, Regulations specifically made on the 17^th May 2016 following earlier concerns raised about the weekend release of prisoners on programs by the Prisons Service. Regulation 4(2) of the Prisons Weekend Release Regulations 2016 expressly provides:

“(2) A prisoner serving an imprisonment sentence is not eligible for weekend release if he or she is convicted and imprisoned for any of the following offences:

(a) Murder;
(b) Manslaughter;
(c) Sexual violation or rape;
(d) Incest;
(e) Burglary;
(f) Robbery.”
18. Regulation 4(2) expressly excluded the accused from eligibility for “weekend release”. Despite the making of these Regulations to place the “weekend release” program on a legal basis pursuant to section 51(a) of the Act, the Prisons Service has relied on section 51(d) of the Act to release the accused for “special release” in the absence of any regulations for prisoner releases under subsection 51(d).
19. I also note that the accused was apparently assessed with a “medium security classification”. Regulation 53(b) of the 2014 Regulations would appear to apply to him. That states in part that the accused “still requires effective supervision and should not be employed outside the prison gate.” Despite these restrictions, the accused was released into the community. Prosecution stated that the release of the accused was unlawful. For the reasons I have stated, I agree.
20. This is not the first occasion on which concerns about unlawful release of prisoners has been raised by the Courts or the criteria applied (see for example: Police v Lima [2016] WSDC 20 (11 May 2016); Police v Niko [2016] WSSC 24 (29 February 2016)). Prosecution told the Court that “we have constantly written advice”, as I understand, on this issue.
21. The Commissioner and the Prisons Service do not have an unfettered discretion to release prisoners into the community. It is critical that the Commissioner and the Prisons Service understand the legal framework relating to and restricting the release of prisoners into the community. The unlawful release of prisoners places the community at risk and undermines the sentences imposed by the Courts and the community’s faith and confidence in the justice system.
22. There is a very important place for rehabilitation programs in the prison system. There is also an important place for “weekend releases” as part of the rehabilitation process for prisoners provided for by law. The release of prisoners however must be done in accordance with that law. The Prisons Service should therefore take the appropriate steps to ensure that the unlawful release of a prisoner into the community does not re-occur. The transparency in these processes are achieved through the laws that are made and which govern the release of prisoners.

Sentence:

23. Now, in terms of sentence, I have reviewed the cases cited by prosecution. I have also referred to the decision of His Honour Sapolu CJ in Police v Masi [2016] WSSC 204 (29 November 2016) where the accused had in his possession 29 ½ marijuana joints weighing 21.7 grams. A start point for sentence of 9 months was applied. I have also referred to Police v Etuale Fuifui (16 April 2012) per His Honour Vaai J where the accused was sentenced to 6 months imprisonment. In this case, I adopt 4 month start point for sentence and uplift that by 1 month for the aggravating factor personal to him.

The penalty:

24. The accused is convicted and sentenced to 5 months imprisonment.
25. This is to be served concurrently with his current life sentence.

JUSTICE CLARKE