Police v Fuivaa [2018] WSSC 11 (13 February 2018)

SUPREME COURT OF SAMOA
Police v Fuivaa [2018] WSSC 11

Case name:	Police v Fuivaa
Citation:	[2018] WSSC 11
Decision date:	13 February 2018
Parties:	POLICE v SUI FUIVAA male of Vailele.
Hearing date(s):
File number(s):	S1838/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE
On appeal from:
Order:	- Convicted and sentenced to 15 months supervision. As a special condition of his supervision, he is ordered to perform 85 hours of community service as directed by the probation service.
Representation:	F Ioane for prosecution Accused in person
Catchwords:	Aggravating features relating to the offending – Alcohol and Drugs Court (ADC) – Alcohol and Drugs Court clinician – mitigating features relating to the accused as offender – possession of narcotics – Toe Afua Se Taeao Fou Alcohol and Drugs Psycho-Education Programme
Words and phrases:
Legislation cited:	Narcotics Act 1967, s.7 and s.18
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

SUI FUIVAA male of Vailele.
Accused

Counsel:
F Ioane for prosecution
Accused in person

Sentence: 13 February 2018

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of possession of narcotics, 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, the accused pleaded guilty at the earliest opportunity.

The offending

2. According to the prosecution summary of facts which was accepted the accused, on Tuesday 31 October 2017 at about 4:00pm, the Apia police received an anonymous call that a male wearing a black shirt with a pink short was selling twisties and marijuana in front of a supermarket at Vailele. The police attended to the call and when they arrived at Vailele, they saw the accused who was wearing the clothes as described sitting between the supermarket and the nearby gas station. The police escorted the accused to a place where there were no people around and searched him on suspicion of being in possession of marijuana.
3. The police found five marijuana joints wrapped in white rolling papers and forty marijuana joints wrapped in pieces of foil. When the police brought the accused to the police station, they found another ten joints wrapped in white rolling papers and $107.50 cash in his bag. The total number of marijuana joints found on the accused was fifty five weighing a total of 70.9 grams.

Toe Afua Se Taeao Fou Alcohol and Drugs Psycho-Education Programme

4. After the accused pleaded guilty to the charge, he was referred to the Alcohol and Drugs Court (ADC) clinician for screening and to report back to the Court the same day. The report by the clinician recommended that the accused attends the eight week Toe Afua Se Taeao Fou Alcohol and Drugs psycho-education programme. The accused has successfully completed that programme and has graduated with a certificate of due completion.

The accused

5. According to the pre-sentence report, the accused is 35 years old and married with seven children. He has three daughters from a previous marriage and they are staying with his parents. The accused left school at Year 11 and was employed in various jobs before he started his own business selling twisties from which he earns about $120 a day. He uses this money to maintain his family as well as his three daughters from his previous marriage.
6. The accused’s mother told the probation service that their family depends on the accused for their upkeep. The accused is a hardworking person who strives to support his family. The leader of the accused’s church has provided a written testimonial in support of the accused and the pulenuu of his village has also provided a written testimonial showing the accused as an active and supportive member of the village and who serves the village well. The pulenuu also says that the accused’s parents depend on him for their upkeep. The accused has also expressed remorse to the Court.
7. The accused has been using marijuana since the age of 20 years. He has previous convictions in 2016 for relatively minor offences of a different kind for which he was fined.

The aggravating features relating to the offending

8. The aggravating features relating to this offending are the quantity of marijuana substances found in the accused’s possession and the fact that the accused was clearly in possession of those substances for a commercial purpose.

The mitigating features relating to the accused as offender

9. The following are the mitigating features relating to the accused as offender: (a) remorse, (b) good character testimonials, (c) has successfully completed the eight week Toe Afua Se Taeao Fou Alcohol and Drugs psycho-education programme and graduated with a certificate of due completion, and (d) early guilty plea.

Discussion

10. Having considered the aggravating features relating to the offending and the mitigating features relating to the accused as offender and the accused’s personal circumstances, I have decided to give the accused a second chance to redeem himself especially to put into practice the lessons he has learnt from the Toe Afua Se Taeao Fou programme. But the accused must bear in mind that if he commits any further marijuana related offence, then there is a real risk of him going to prison.

Result

11. The accused is convicted and sentenced to 15 months supervision. As a special condition of his supervision, he is ordered to perform 85 hours of community service as directed by the probation service.

CHIEF JUSTICE