Police v Amosa [2017] WSSC 91 (23 June 2017)

THE SUPREME COURT OF SAMOA
Police v Amosa [2017] WSSC 91

Case name:	Police v Amosa
Citation:	[2017] WSSC 91
Sentence date:	23 June 2017
Parties:	POLICE (Prosecution) v FOTUOTAUSAGA AMOSA male of Satupaitea Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:
Representation:	A Matalasi for Prosecution T Leavai for the accused
Catchwords:	Possession of Narcotics – aggravating factors – mitigating factors
Words and phrases:
Legislation cited:	Narcotics Act 167 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

FOTUOTAUSAGA AMOSA male of Satupaitea
Accused

Counsel:
A Matalasi for Prosecution
T Leavai for the accused

Sentence: 23 June 2017

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of knowingly being in possession of nacs, con, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14s imprisonment pursuant to s18.
2. He was found guilty of the charge on 19 May 2017 after a defended hearing on 27 April 2017.

The offending

3. According to the evidence, the Police went to the wharf at Salelologa on 19 November 2016 at around 12.30 pm to execute a warrant of arrest on the accused. They found the accused at the wharf. He was there to find passengers as he was driving a taxi. The Police took the accused to Tuasivi Police Station in a police vehicle while a Police officer drove the taxi to the station.
4. Upon arrival at the station, the taxi was searched and the Police found 6 rolled marijuana cigarettes under the floor mat on the driver’s side.
   

The accused

4. The accused is a 33 year old single male from Satupaitea, Savaii. He is still a taxi driver for a different employer. He is now living at Faleula with his father and his 4 year old daughter.
5. His elder sister told Probation that the accused is humble and reliable. He is also talented in playing the piano and is a conductor for their church choir.
6. There are two testimonials from the pastor of the accused and his village mayor. Both say that the accused is an active and contributing member of the church and village.
7. He was penalised $1000.00 by the village Council and in lieu of this he gave the village Council a large cattle beast and 15 boxes of tinned fish.
8. He told Probation that the substances do not belong to him. However he did express his remorse to Probation and subsequently Defence Counsel has conveyed his remorse saying that the marijuana was for his personal consumption.
9. The accused is a first offender.

Aggravating features of the offending

10. The fact that drugs are found within a public transport vehicle is an aggravating factor. This is a taxi within which members of the public are transported, including children. It also raises the possibility of the accused smoking drugs while transporting the public.

Mitigating factors

11. The accused has shown remorse to Probation, and it has been conveyed through Defence Counsel.
12. I take into account the testimonials for his pastor and village mayor.
13. I take into account in mitigation that the accused paid a penalty to the village council. I am required to take this into account pursuant to section 7 of the Community Justice Act 2008 which provides that the Court must take into account in determining the nature of the penalty to be imposed, any compensation or reparation made or due by the offender under Samoan custom and tradition.

Discussion

14. Prosecution recommends a starting point of 12 months imprisonment. Defence Counsel accepts Probation’s recommendation of a community based sentence.
15. This Court has adopted a stern approach to narcotics offending. The sentencing policy is to impose imprisonment unless there are exceptional circumstances requiring a different treatment. (per Nelson J in Police v Siaosi)
16. The high penalty which attaches to this type of offending is indicative of Parliament’s view.
17. However, having considered the circumstances of this case including the quantity of marijuana found on the accused, I have decided to impose a non-custodial sentence for these reasons. The accused is a first offender. He has been of previous good character apart from this offending. His talent of playing the piano for the church and conducting the church choir is indicative of someone who gives his time to the community. Defence Counsel said that he offers his time to the community at large. His sentence today will focus on his rehabilitation and a way in which he can use his talents to give back to those less fortunate in the community.
18. However, the Court cautions the accused against further narcotics offending as these offences carry high penalties, and the next time the accused appears in Court for similar offences, he will most likely receive a custodial sentence.

Sentence

19. The accused is convicted and sentenced to 200 hours community work pursuant to section 23 of the Community Justice Act 2008. These hours are to be carried out at Samoa Victim Support Group, and must be completed within 12 months.

JUSTICE TAFAOIMALO TUALA WARREN