Police v Tuialii [2017] WSSC 26 (12 April 2017)

SUPREME COURT OF SAMOA
Police v Tuialii [2017] WSSC 26

Case name:	Police v Tuialii
Citation:	[2017] WSSC 26
Decision date:	12 April 2017
Parties:	POLICE v DAVID VAA TUIALII male of Laulii.
Hearing date(s):
File number(s):	S279/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 8 months supervision on the special conditions that he is to attend the six week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme conducted by the probation service and to perform 25 hours of community service as directed by the probation service.
Representation:
Catchwords:	Alcohol and Drugs Court – clinician – possession of narcotics – programme facilitator – Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme -
Words and phrases:
Legislation cited:	Narcotics Act 1967 ss.7&18
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

File Number: S279/17

BETWEEN

P O L I C E

Prosecution

A N D

DAVID VAA TUIALII male of Laulii.

Accused

Counsel:
L Sio for prosecution
Accused in person

Sentence: 12 April 2017

S EN T E N C E

1. The accused David Vaa Tuialii is a 37 year old male of Laulii. He appears for sentence on one charge of possession of narcotics, namely, seven and half marijuana joints and loose marijuana leaves which would yield a half marijuana joint, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment under s.18. To the charge, the accused pleaded guilty at the earliest opportunity.
2. The prosecution’s summary of facts shows that on 20 Januray 2017 around 12 noon, the police were conducting a search operation at the Savalalo Flea Market for people selling marijuana to members of the public. At the Flea Market the police were told by an informer that the accused was in possession of marijuana. The police then stopped the accused and searched him on suspicion of marijuana. Seven and a half marijuana joints and loose marijuana leaves which would yield a half marijuana joint were found in the accused’s possession. I have to say that there is no evidence in the summary of facts which expressly shows that the accused was actually selling marijuana but it seems from the prosecution’s sentencing memorandum that this is the inference the prosecution is inviting the Court to draw from the circumstances. I am reluctant to draw that inference. The police could have asked the accused as to why he was in possession of marijuana because the accused could have been in possession of marijuana as a dealer or simply as a consumer. As it appears from the pre-sentence report, the accused told the probation service that the bag of marijuana found by the police on him belonged to a friend who left the bag with him while his friend went to a shop to buy something. In these circumstances, I am not satisfied to the necessary degree that the accused was in possession of marijuana for the purpose of selling to members of the public. I will give the accused the benefit of the doubt.
3. The pre-sentence report also shows that the accused’s parents are pastors for the Seventh Day Adventist Church. He finished school at Year 13 and then found various jobs in New Zealand and Samoa. He is a father of three children but he and his wife have been divorced. At the time of this offending, he was staying with his family at Laulii.
4. The accused also has a number of previous convictions one of which was in 2004 for possession of narcotics. He has been in custody since about the first week of February 2017.
5. The accused after his guilty plea was referred to the Alcohol and Drugs Court clinician for an assessment and a possible determination hearing by the Alcohol and Drugs Court (ADC). The ADC clinician recommended that the accused should be referred to the six week Toe Afua Se Taeao Fou psycho-education programme to be followed by supervision.
6. The only aggravating feature of this offending is the quantity of marijuana substances found on the accused. In respect of the accused as offender, the only aggravating feature is his previous convictions. In respect of the accused as offender, the only mitigating feature is his early guilty plea.
7. The accused has also spent two months in custody.
8. In weighing all the relevant circumstances, I consider that the accused should now be given a term of supervision with special conditions.
9. The accused is convicted and sentenced to 8 months supervision on the special conditions that he is to attend the six week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme conducted by the probation service and to perform 25 hours of community service as directed by the probation service.

CHIEF JUSTICE