Police v Misiluki [2018] WSSC 100 (6 September 2018)

SUPREME COURT OF SAMOA
Police v Misiluki [2018] WSSC 100

Case name:	Police v Misiluki
Citation:	[2018] WSSC 100
Decision date:	6 September 2018
Parties:	POLICE v LAGALAGA MISILUKI male of Fagalii andTafaigata Prison.
Hearing date(s):
File number(s):	S149/18 & S279/18.
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Convicted and sentenced to 3 years and 9 months imprisonment less time remanded in custody. That term is cumulative to your current imprisonment term. In respect of escape, you are convicted and sentenced to 1 month imprisonment which is to be served concurrently.
Representation:	I Atoa and Q Sauaga for prosecution Accused self-represented
Catchwords:
Words and phrases:	possession of narcotics (52) marijuana cigarettes, escaped from custody at Tafaigata Prison, have a lengthy prior conviction record, possessed and attempted to take marijuana into the prison facility, possession of marijuana was I infer either for a commercial purpose to sell within the prison or to supply to others within the prison committed your offending while serving a prison term.
Legislation cited:
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

LAGALAGA MISILUKI male of Fagalii & Tafaigata Prison.
Accused

Counsel:
I Atoa and Q Sauaga for prosecution
Accused self-represented

Sentence: 6 September 2018

S E N T E N C E

1. Lagalaga Misiluki, you appear today for sentence on one charge of possession of narcotics namely cannabis substances, fifty two (52) marijuana cigarettes securely wrapped in pieces of foil weighing 39.6 grams. The maximum penalty for this charge is 14 years imprisonment. You also appear for sentence for escape from lawful custody.

The Offending:

2. According to the Summary of Facts accepted by you, on the 17th January 2018, you escaped from custody at Tafaigata Prison. Later that same day, you returned to Tafaigata Prison voluntarily. When you were searched by Prison Officers, fifty two marijuana cigarettes wrapped in pieces of foil weighing 39.6 grams were discovered in your possession.

The Accused:

3. You are a 39 year old male of Fagali’i, Salamumu and now Tafaigata Prison. According to the PSR and what you told the probation Service, your family migrated to Australia in 2016. You receive money from your family in Australia, are single and you do not appear to have any children. You completed school to year 11.
4. You disputed parts of your prior conviction record. After due inquiry and the tendering of your Warrants of Commitment of which I take judicial notice, I am satisfied that you have a lengthy prior conviction record starting with theft in 2004 followed by further charges of burglary, theft, a charge of possession of narcotics, escape and other charges. Your most recent conviction for theft was in August 2017 where you were sentenced to 12 months imprisonment followed by two years of supervision.

Mitigating Factors:

5. Having heard from you today, I accept that you are genuinely remorseful. The mitigating features personal to you therefore is your remorse and guilty plea, late as it was.

Aggravating factors:

6. The aggravating factors relating to your offending are:
   • (a) The quantity of marijuana in your possession;
   • (b) That you possessed and attempted to take marijuana into the prison facility; and
   • (c) That your possession of marijuana was I infer either for a commercial purpose to sell within the prison or to supply to others within the prison.
   • (d) You committed your offending while serving a prison term.
7. The aggravating factors personal to you is your previous conviction record including for narcotics possession.

Discussion:

8. Lagalaga, the possession of drugs is a serious offence, particularly so given the quantity in your possession. To do so by attempting to take a large quantity of marijuana into the prison is a further aggravating factor to your offending.
9. You have learnt little from your imprisonment over the years. In your ADC Assessment carried out in 2015, it states that you showed little insight into the seriousness of your offending and you did not take responsibility for your actions.
10. You are now a 39 year old man Lagalaga. You are no longer a young man and you have spent a lot of your life in prison. You come from what seems to be a good family with your mother having been a nurse working to help others and your father having worked in the private sector. They have now found for themselves a new life in Australia.
11. The material I have read concerning you Lagalaga suggests that you have difficulty re-integrating into Society. Your family and personal circumstances including the lack of a support network for you in the community makes your return to the community challenging for you.
12. Like other Judges before me Lagalaga, I also encourage you to change your life. Reflect on where your life is, on your family and what they hope for you. Only you can change your life. We, the judiciary, the Probation Service and others can assist you but at the end of the day, it is you who must ultimately take responsibility for that decision. If you need help by way of programs and support and you are genuinely committed to changing your life, then ask to attend programs that can be offered either through the Prison system or through the Probation Service. It is important that you do so because ultimately, it is the community and the Court’s desire that you become a constructive member of Society with a good future for yourself. Others have changed their lives before you and I am certain that you can also.
13. For your offending Lagalaga, the Courts approach over the years is quite clear. A deterrent sentence is imposed to reflect the seriousness of the offence and as deterrent to you and others from committing this type of offending, particularly so where you attempt to take drugs into the prison system.
14. I adopt the charge of possession of narcotics as the lead charge and apply the totality approach in sentencing. Prosecution seeks a start point of 5 years imprisonment. Based on the authorities I have been referred to and on your offending, I adopt a 4 1/2 year start point for imprisonment. I uplift that sentence by 6 months for your prior convictions. I deduct 6 months for your genuine remorse and plea to the Court and 9 months for your guilty plea.

Result:

15. Accordingly, you are convicted and sentenced to 3 years and 9 months imprisonment less time remanded in custody. That term is cumulative to your current imprisonment term. In respect of escape, you are convicted and sentenced to 1 month imprisonment which is to be served concurrently.

JUSTICE CLARKE