Police v Siaki [2017] WSSC 75 (23 March 2017)

THE SUPREME COURT OF SAMOA

Police v SIAKI [2017] WSSC 75

Case name:	Police v Siaki
Citation:	[2017] WSSC 75
Sentence date:	23 March 2017
Parties:	POLICE (Prosecution) v AFIIPU SIAKI male of Falevao, Letogo and Laloanea Tapatapao Accused
Hearing date(s):	23 March 2017
File number(s):	S117/17 and S118/17
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	- Convicted on both charges and sentenced to 8 months imprisonment. The sentences are to be served concurrently.
Representation:	I. Atoa for Prosecution D. Roma for the defendant
Catchwords:	cultivation of prohibited plants – aggravating and mitigating factors – high prevalence of narcotic related offences – maximum penalty –starting point for sentence
Words and phrases:
Legislation cited:	section 6(a) of the Narcotics Act 1967 and sections 7 and 18 of the Act.
Cases cited:	Nelson J in Police v Talato [2014] WSSC 148 (3 July 2014) by Sapolu CJ, Police v Keresoma [2014] WSSC 68 (14 November 2014) by Sapolu CJ, Police v Oloapua (unreported decision of Vaai J, 10 July 2012), Police v Loto [2013] WSSC 22 (21 May 2013)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

AFIIPU SIAKI male of Falevao, Letogo and Laloanea Tapatapao
Accused

Counsel:
I. Atoa for Prosecution
D. Roma for the defendant

Sentence: 23 March 2017

S E N T E N C E

1. The accused appears for sentencing on 1 charge of cultivation of prohibited plants (S117/17), namely, three (3) marijuana plants contrary to section 6(a) of the Narcotics Act 1967 (“the Act”). He also appears for sentence on 1 charge of possession of narcotics (S118/17), namely cannabis substances being four (4) marijuana plants without leaves contrary to sections 7 and 18 of the Act being a Class B narcotic. Both charges carry a maximum penalty of 14 years imprisonment.
2. The accused pleaded guilty at an early stage through counsel.

The Offending

3. According to the Summary of Facts accepted by the accused through counsel, Police received information that the accused was cultivating marijuana at Laloanea. Police then prepared and executed a search warrant on the property at Laloanea. When Police arrived, the accused was present on the property. Police searched the property and found three (3) marijuana plants with leaves and four (4) plants without leaves approximately 500 metres from the house where the accused resided. When questioned about the plants, the accused said that the plants were marijuana plants.
4. The property at Laloanea where the accused cultivated and possessed the marijuana was property belonging to his employer and where he worked was a caretaker. Through counsel, it was accepted that the accused knew that what he did was unlawful and that the marijuana was not for personal use. As stated in the accused’s Pre-Sentence Report, he had been given seeds for the marijuana plant “in order to get easy money”. For the accused, his cultivation and possession of marijuana was for a commercial purpose.

The Accused

5. The accused is a 39 year old male who was born and raised at his mother’s family at Leusoalii. According to his Pre-Sentence Report, he is the eldest of his parents’ six (6) children. He completed school to year 10. He is single with no children. He had worked for his employer since 2009 and in 2014, his employer entrusted him with the role of caretaker of his cattle farm at Laloanea.
6. Based on the Pre-Sentence Report, the accused is clearly loved by his parents and a valued member of his family. His parents claimed in the Pre-Sentence Report that the accused suffered a form of brain injury as a child but there was no evidence to support such an injury as ongoing or having any causative or relevant effect to his offending. His parents say that the accused’s offending is completely out of character. I have also perused the references by Reverend Richard Noaese and Lepua Tauapai Sale Tofae, the Pulenuu, both speaking favourably of the accused.

Aggravating and Mitigating Factors

7. The aggravating features in relation to the accused’s offending are: (a) the breach by the accused of his employer’s trust; (b) the marijuana was cultivated and in his possession for commercial sale, as stated in the Pre-Sentence Report, “to get easy money”; and (c) the offending necessarily involved a high degree of premeditation and planning. There are no aggravating features personal to the offender.
8. There are no mitigating features in respect of the accused’s offending. In relation to the accused as an offender, the mitigating features personal to him are (a) the fact that the accused had been a person of good character prior to his commission of these offences; (b) that he is genuinely remorseful for his offending; and (c) his early guilty plea.

Discussion

9. Prosecution has applied for imprisonment with a start point of 12 months. The accused through his counsel seeks a non-custodial sentence. The Probation Service has also recommended a non-custodial sentence, stating when asked by the Court that he is not a user of the drugs as a basis for the imposition of a non-custodial sentence.
   
10. The approach of the Samoan Courts to drug offending is well known. A deterrent sentence is imposed. As stated by His Honour Nelson J in Police v Talato [2014] WSSC 148 (3 July 2014):

“The defendant should understand that cultivation is a big pa thef the drug problem in Samoa. If there were no growers there would be no marijuana in this co. And tAnd there would be ng problem of marijuana. A deterrent penalty is therefore required to discourage Feula from from growing this sort of crop. And so tha friends and everyone else in the community know that if yoif you do this you will be sent to prison by the court.”

11. In Police v Keresoma [2014] WSSC 68 (14 November 2014), His Honour Sapolu CJ also stated:

“The maximum penalty for cultivation of narcotics was 7 years imprisonment but because of the high prevalence of narcotic related offences, the maximum penalty was increased by the Narcotics Amendment Act 2009 to 14 years imprisonment which came into effect on 12 July 2010. In the recent past, the number of narcotic related offences brought before my Court during criminal mentions has decreased. However, it is too early at this stage to depart from the Court’s traditional sentencing policy of imposing custodial sentences in cultivation of narcotics cases unless there are exceptional circumstances. The reason is that there is a risk that a relaxation by the Court at this stage of its current sentencing policy may result in a resurgence of possession and cultivation of narcotics offences so soon after the maximum penalty was increased to 14 years imprisonment. The need for deterrence in narcotics offending is still a paramount consideration to be borne in mind for sentencing purposes. ...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 and the established sentencing policy of this Court.”

12. In Police v Loto [2013] WSSC 22 (21 May 2013), the Honourable Sapolu CJ commenced with a sentencing start point of 10 months imprisonment for the possession of one (1) marijuana plant, not for commercial purpose. In Police v Oloapua (unreported decision of Vaai J, 10 July 2012) involving apparently four (4) marijuana plants, His Honour Vaai J imposed 8 months imprisonment.
13. As stated by Sapolu CJ, “[t]he need for deterrence in narcotics offending is still a paramount consideration to be borne in mind for sentencing purposes.” There are no exceptional circumstances to warrant anything other than a custodial sentence. The accused cultivated marijuana for commercial sale to others. He thought it would mean “easy money” but as should now be very clear to the accused and all who cultivate marijuana with the idea that it is “easy money”, it is not easy money and will land you in prison.
14. As there are two charges, one of cultivation of narcotics and one of possession of narcotics, I will apply the totality principle of sentencing. Having regard to the need for deterrence with this type of case and the aggravating features relating to the offending, I adopt 12 months as recommended by Prosecution as the starting point for sentence. I will deduct 1 month for previous good character. I will then deduct another 3 months for your early guilty plea and remorse. That leaves 8 months imprisonment.

The penalty

15. The accused is convicted on both charges and sentenced to 8 months imprisonment. The sentences are to be served concurrently.

JUSTICE LEIATAUALESA DARYL CLARKE