Police v Neemia [2017] WSSC 94 (15 June 2017)

THE SUPREME COURT OF SAMOA
Police v Neemia [2017] WSSC 94

Case name:	Police v Neemia and Fatulau
Citation:	[2017] WSSC 94
Sentence date:	15 June 2017
Parties:	POLICE (Prosecution) v RODNEY TULUA NEEMIA male of Vailuutai and FUGALAAU FATULAU 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:	The first-named accused Rodney Tulua Neemia is convicted of all six charges, namely; One charge of possession of seed of a prohibited plant; One charge of cultivation of 414 prohibited plants; Two charges of possession of narcotic; One charge of unlicensed firearm; and One charge of possession of unlawful ammunition. He is sentenced to 2 years and 6 months imprisonment. Any time spent in custody is to be deducted. The second-named accused Fugalaau Fatulau is convicted of all six charges, namely; One charge of possession of seed of a prohibited plant; One charge of cultivation of 414 prohibited plants; Two charges of possession of narcotic ;One charge of unlicensed firearm; and One charge of possession of unlawful ammunition. She is sentenced to 2 years supervision. She is advised to steer clear of guns and drugs for the sake of her children as the combination is extremely dangerous.
Representation:	O Tagaloa for Prosecution Accused in person
Catchwords:	possession of seeds of a prohibited plant – cultivation – possession of narcotics –possession of unlawful ammunition– unlicensed firearm
Words and phrases:
Legislation cited:	Narcotics Act 1967 s.6(b) Narcotics Act s.6(a) Narcotics Act 1967 s.7 and 18 Arms Ordinance 1960 s.9 Arms Ordinance 1960 s.12(1)(2)(3)
Cases cited:	Police v Maposua[2010] WSSC 85) Police v Masame [2007] WSSC 92
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

RODNEY TULUA NEEMIA male of Vailuutai and FUGALAAU FATULAU female of Vailuutai
Accused

Counsel:
O Tagaloa for Prosecution
Accused in person

Sentence: 15 June 2017

S E N T E N C E

The charges

1. The accused appear for sentence on six joint charges, namely;

One charge of possession of seeds of a prohibited plant pursuant to section 6(b) Narcotics Act 1967 (maximum 14 years imprisonment);

One charge of cultivation of 414 prohibited plants pursuant to the Narcotics Act section 6(a) (maximum 14 years imprisonment);

Two charges of possession of narcotic pursuant to sections 7 and 18 of the Narcotics Act 1967 (maximum 14 years imprisonment);

One charge of unlicensed firearm pursuant to section 9 of the Arms Ordinance 1960 (maximum $5000.00 or 2 years imprisonment or both); and

One charge of possession of unlawful ammunition pursuant to sections 12(1)(2)(3) Arms Ordinance 1960(maximum penalty $10,000 or 5 years imprisonment or both) .

2. They entered guilty pleas to all charges on 11 May 2017.

The offending

3. According to the Summary of facts accepted by the accused, on 10 June 2016, the Police executed a search warrant at the home of the accused. As a result of the Police search, Police found inside the home of the accused;

Loose marijuana leaves in a piece of foil weighing .3 grams;

1 small marijuana branch without leaves;

108 marijuana seeds;

18 ammunition of 308 types without any valid registration;

12 gauge long rifle without any registration;

22 rifle single shot without any registration; and

414 marijuana plants.

The First-Named Accused

4. The first-named accused is 36 years old. He is has a de-facto partner and two children.
5. He works as a fisherman earning $200.00 per week.
6. His mother spoke highly of him to Probation saying he is a reliable person. His village mayor and reverend provided testimonials saying that the accused is a dedicated member of the church and village and is honest, reliable and hard working.
7. The accused was penalised by the village and he paid a penalty of $4800.00 and 5 large fine mats. The village mayor confirmed this and conveys his support for the accused.
8. The accused said of the offending that he started consuming marijuana 16 years ago. He grows marijuana to assist his family financially.
9. The accused has a previous conviction for possession of narcotics in 2002.

The Second-Named Accused

10. The second-named accused is the de-facto partner of the first-named accused. She is 32 years old. Their children are 16 and 8 years old. She is a stay home mother while the first-named accused works to support them.
11. She says that she does not smoke marijuana and she is very disappointed in her husband because he never listens to her advice about the negative impacts of marijuana. She pleaded guilty because she lives on the same land as her husband.
12. She is a first offender.

Aggravating features of the offending

13. The substantial quantity of marijuana is the first aggravating factor in this case, in particular the 414 marijuana plants for commercial gain.
14. The second is that there were also unlicensed firearms and unlawful ammunition found at the home of the accused, a home in which they live with their two children.

Aggravating features in respect of the First-named accused Rodney Tulua Neemia

15. It is aggravating feature in respect of the first-named accused that he has a previous conviction for possession of narcotics, the same offence for which he is being sentenced today.

Mitigating factors

16. I take into account the village penalty paid by the accused. Section 8 Village Fono Act 1990 provides that where punishment has been imposed by a village fono on any person and that person is convicted by a Court of a crime or offence in respect of the same matter, the Court shall take into account in mitigation of sentence the punishment imposed by that village fono.
17. Their early guilty pleas are taken into account.

Discussion

18. There has been a consistency in the imposition of harsher penalties on person engaged in commercial distribution and financial gain.(see Police v Maposua[2010] WSSC 85)
19. This is in line with the judicial response to such offending. In Police v Masame [2007] WSSC 92, Sapolu CJ said that for many years now, the attitude of the Court has been to impose custodial sentences in narcotics cases because of the high prevalence of this type of offending unless there are exceptional circumstances which would justify a non-custodial sentence.
20. Having regard to the high maximum penalty of 14 years imprisonment for possession of narcotics, the need for deterrence, and the aggravating features of his offending, a custodial sentence is an appropriate sentence in this case for the first-named accused.
21. There are no exceptional circumstances in this case to justify a non-custodial sentence. He was engaged in the commercial distribution of marijuana. He had firearms in his possession. His illegal activities have put at risk the liberty of the second-named accused, the mother of his children and the person primarily responsible for looking after their children.
22. In sentencing I apply the totality principle. I will take 5 years imprisonment as a starting point for sentence. I will deduct 1 year for the penalty to the village. I will deduct 1 year and 6 months for his guilty pleas.

Sentence

23. The first-named accused Rodney Tulua Neemia is convicted of all six charges, namely;

One charge of possession of seed of a prohibited plant;

One charge of cultivation of 414 prohibited plants;

Two charges of possession of narcotic;

One charge of unlicensed firearm; and

One charge of possession of unlawful ammunition.

24. He is sentenced to 2 years and 6 months imprisonment.
25. Any time spent in custody is to be deducted.
26. The second-named accused Fugalaau Fatulau is convicted of all six charges, namely;

One charge of possession of seed of a prohibited plant;

One charge of cultivation of 414 prohibited plants;

Two charges of possession of narcotic ;

One charge of unlicensed firearm; and

One charge of possession of unlawful ammunition.

27. She is sentenced to 2 years supervision. She is advised to steer clear of guns and drugs for the sake of her children as the combination is extremely dangerous.
    

JUSTICE TAFAOIMALO TUALA WARREN