Police v Chong Nee [2017] WSSC 88 (27 June 2017)

SUPREME COURT OF SAMOA
Police v Chong Nee [2017] WSSC 88

Case name:	Police v Chong Nee
Citation:	[2017] WSSC 88
Decision date:	27 June 2017
Parties:	POLICE v NAZARIO CHONG NEE male of Aleisa.
Hearing date(s):	26 June 2017
File number(s):	S678/17
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 with the special conditions that he is to attend the 7 week Toe Afua Se Taeao Fou programme and to perform 25 hours community service
Representation:	F O Tagaloa for prosecution Accused in person
Catchwords:
Words and phrases:	Alcohol and Drugs Court - Possession of narcotics - Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme -
Legislation cited:	Narcotics Act 1967, s.7
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:

NAZARIO CHONG NEE male of Aleisa.
Accused

Counsel:
F O Tagaloa for prosecution
Accused in person

Sentence: 27 June 2017

S EN T E N C E

The charge

1. The accused appears for sentence on one charge of possession of narcotics, namely, one marijuana joint, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment pursuant to s.18. To the charge, he pleaded guilty at the earliest opportunity.

The offending

2. According to the prosecution’s summary of facts which was accepted by the accused, on 24 April 2017 around 11:00am in the morning, the police went to Tulaele to apprehend a suspect in relation to a different matter. When the police arrived at the house of the suspect, they saw the present accused running away from the house. By his action, the accused also became a suspect and one of the police officers gave chase and caught him. Other police officers arrived and apprehended the accused who was then brought to the police station. When the accused was searched at the police station, he was found to be in possession of one marijuana joint which weighed at 0.4 grams.

The Alcohol and Drugs Court (ADC)

3. After the accused pleaded guilty to the charge against him, he was referred to the ADC clinician for screening and an assessment and to report back to this Court. The report from the ADC clinician recommended that the accused be referred back to her for a further assessment. After the further assessment, the accused was recommended for a determination hearing before the ADC. This required a sentencing indication from this Court to the ADC. In the interests of possible treatment and rehabilitation under the newly established ADC, I gave a sentencing indication of 8 months supervision with a special condition that the accused is to perform 25 hours of community service. However, when the accused was given this sentencing indication and he returned to the AD, he refused to participate in the programme of the ADC. So he was returned to this Court for sentencing.

The accused

4. The accused is 34 years old, married with two children, and works on his vegetable farm at Aleisa. He has a bad criminal record even though this is the first time he has appeared before the Courts on a drug-related offence. His previous record reflects his attitude towards the law for which he can be sentenced to prison for his present offence. However, given the newly established ADC and the wish of this Court to rehabilitate the accused and turn him around from drug offending, he was given a sentencing indication of 8 months supervision with the special condition of 25 hours community service he has to perform. But a sentencing indication of imprisonment could have been given in accordance with past policy in order to curb the prevalence of drug related offences and the accused’s attitude towards the law.
5. However, when the accused appeared for sentence and was asked if he would attend the 7 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme if a term of supervision was imposed on him, he said yes. If he had refused, I would have been compelled to sentence him to prison.

Discussion

6. As already mentioned, the accused has a bad criminal record but this is his first drug related offence. With the newly established ADC, I want the accused to take advantage of the programmes made available by that Court so that he does not go down the path of drug offending. He has a wife and two young children to look after. It would not be in their interests if the accused is to start now on the path of drug offending and end up in prison again. No one wants that to happen, if it can be avoided. It will depend on the accused, himself.

Result

7. The accused is convicted and sentenced to 8 months supervision with the special conditions that he is to attend the 7 week Toe Afua Se Taeao Fou programme and to perform 25 hours community service.

CHIEF JUSTICE