SUPREME COURT OF SAMOA
Police v Faamanu [2017] WSSC 35

Case name: 	Police v Faamanu	
		
Citation: 	[2017] WSSC 35	
		
Decision date: 	5 May 2017	
		
Parties: 	POLICE v NASERI FAAMANU aka NASERI TAUMAFAI MALUTOA male of Vailele and Fagaloa.

Hearing date(s): 		
		
File number(s): 	S287/17

Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE SAPOLU	
		
On appeal from:		
		
Order:	Convicted on each of the charges against him and sentenced to 9 months imprisonment on the first charge and 3 months imprisonment on the second charge.  Both sentences to be concurrent.

The time that the accused has been remanded in custody pending this sentence is to be deducted from his sentence.

Representation: 	O Tagaloa for prosecution
T F Tufuga for accused

Catchwords: 	Alcohol and Drugs Court – possession of narcotics – Toe Afua Se Taeao Fou psycho-education alcohol and drugs programme – sentence 	
		
Words and phrases:		
		
Legislation cited:	Narcotics Act 1967, s.7 & s.18	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P  O  L  I  C  E

Prosecution

A  N  D

NASERI FAAMANU aka NASERI TAUMAFAI MALUTOA male of Vailele and Fagaloa.

Accused

Counsel:	
O Tagaloa for prosecution
T F Tufuga for accused

Sentence:	5 May 2017

S EN T E N C E
1. 	The accused Naseri Faamanu aka Naseri Taumafai Malutoa appears for sentence on two charges of possession of narcotics, contrary to s.7 of the Narcotics Act 1967, each of which carries a maximum penalty of 14 years imprisonment pursuant to s.18.  He pleaded guilty at the earliest opportunity to each charge.
The offending 
2. 	As it appears from the prosecution’s summary of facts dated 2 March 2017 which was accepted by the accused ,on 20 January 2017 at around 12 noon, the police conducted a search operation at the Savalalo Flea Market for people possessing or selling marijuana.  Someone pointed out to the police that the accused was in possession of marijuana.  The police then stopped the accused and searched him. Whilst being searched, the accused took off and fled. The police chased after him and caught him at the door of the Flea Market.  The accused was then taken to the Apia police station where he was found to be in possession of  twenty one marijuana joints.  He was then charged with possession of narcotics.
3. 	The second summary of facts dated 1 May 2017, which was also accepted by the accused, shows that on 4 March 2017 at around 2:00pm in the afternoon, the police received a call that some men were drinking alcohol and making noises at the Fugalei Market.  The police attended to the call and when they arrived at the market they saw the accused handing over a foil packet to another man.  The police then approached the accused on suspicion of marijuana and searched him.  They found four marijuana joints on the accused.  These marijuana joints were later found to weigh a total of 8.8 grams.
The Alcohol and Drugs Court (ADC)
4. 	The supplementary pre-sentence report dated 28 April 2017 shows that on 9 November 2016 the accused was convicted in the District Court on charges of causing injury, assault, being armed with a dangerous weapon, and drunkenness and was fined $200 and placed under supervision for 2 years with the special condition to attend the 6 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme.  The accused attended and completed the said programme and was issued with a certificate of due completion.
5. 	Whilst still under supervision, the accused reoffended on 20 January 2017.  He pleaded guilty to the charge of possession of narcotics against him and this Court referred him to the ADC clinician for an assessment and a report.  The report from the clinician recommended that the accused be referred back to her for a further assessment and possible consideration for the Alcohol and Drugs Determination Court.  That was done.  Whilst the accused was in the ADC, he reoffended again on 4 March 2017.  According to the advice from counsel, as a result of this reoffending, the accused has been exited from the ADC.
The accused 
6. 	The accused is a 40 year old male of Vailele and Fagaloa.  He is a planter and married with five children.  He finished school at Year 8 and then stayed home and helped out his family with domestic duties.  In 2006 he found a job in a catering business.  But this employment ended in 2009 because of the offences he committed in that year and for which he was convicted.  He then stayed home and worked a vegetable garden to support his family by selling the produce from his vegetable garden at the market.
7. 	The report from the ADC clinician dated 6 March 2017 shows that the accused is a dependent cannabis user and has been consuming marijuana since he was 28 years old.  When he attended the 6 week Toe Afua Se Taeao Fou programme in 2016 he abstained from marijuana consumption for a short period of time but then relapsed and started consuming marijuana again.  It is unfortunately clear that the ADC does not work for this accused.
8. 	The accused has a previous conviction for possession of narcotics in 2008 for which he was convicted and sentenced to 6 months imprisonment.  For the offences for which he was convicted in November 2016, he was fined and sentenced to 2 years supervision with the special condition to attend the 6 week Toe Afua Se Taeao Fou programme.  When he reoffended in January 2017, he was charged and convicted for beach of the terms of his supervision.  He was sentenced to 2 months imprisonment.
The aggravating features 
9. 	The aggravating features relating to both these offendings are the quantity of marijuana found on the accused and the fact that the first offending was committed whilst the accused was under supervision and he had just completed the 6 week Toe Afua Se Taeao Fou programme.  The second offending was committed whilst the accused was still before the ADC.
10. 	The aggravating feature relating to the accused as offender is his previous convictions.
The mitigating features
11. 	The only mitigating feature relating to the accused as offender are his guilty pleas.  But I cannot take this as a sign of remorse.
Discussion 
12. 	The accused is apparently a drug dependant.  In spite of attempts by the Court to assist him with his drug dependency problem, the accused has not made a genuine attempt to help himself.  He is still consuming marijuana and did so in a public place when he was apprehended by the police in relation to the present offences.  There is no other option left to the Court now but to impose a custodial sentence.
13. 	Having regard to the aggravating features relating to the offendings, I will take a starting point of 10 months.  I will add on 2 months for previous convictions.  That makes it 12 months.  I will deduct 3 months for the early guilty pleas.  That leaves 9 months.
Result 
14. 	The accused is convicted on each of the charges against him and sentenced to 9 months imprisonment on the first charge and 3 months imprisonment on the second charge.  Both sentences to be concurrent.
15. 	The time that the accused has been remanded in custody pending this sentence is to be deducted from his sentence.
CHIEF JUSTICE