Police v Poliko [2018] WSSC 121 (10 September 2018)

SUPREME COURT OF SAMOA
Police v Poliko [2018] WSSC 121

Case name:	Police v Poliko
Citation:	[2018] WSSC 121
Decision date:	10 September 2018
Parties:	POLICE v TINOMALU a.k.a MALU POLIKO male of Vaimoso-tai and Vaiusu-uta.
Sentencing date(s):	10 September 2018
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Convicted and sentenced as follows: - In respect of information S810/18 – 8 months imprisonment less time remanded in custody. On your release you are to be under the supervision of the Probation Service for 6 months on the following conditions: - You are prohibited from street vending; and - Attend such programs as directed by the Probation Service. - In relation to information S801/18 – 3 months imprisonment to be served concurrently.
Representation:	F Ioane for prosecution Accused appeared in person
Catchwords:	Possession of narcotics at Tafaigata prison, spent a number of years in prison, 58 year old male, vendor at the Fugalei Market selling Pall-Mall cigarettes.
Words and phrases:	possession of marijuana at the Market place, possession of marijuana both at the Police Station and a Prison Facility when you were in custody.
Legislation cited:
Cases cited:	Police v Leota [2011] WSSC 74 (18 April 2011); Police v Kamisi[2018] WSSC 73 (11 May 2018)).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TINOMALU a.k.a MALU POLIKO male of Vaimoso-tai & Vaiusu-uta.
Accused

Counsel:
F Ioane for prosecution
Accused appeared in person

Decision: 10 September 2018

S E N T E N C E

The Charge:

1. Malu, you appear for sentence on one charge of possession of narcotics namely cannabis substances 1 cigarette of marijuana weighing 4.1 grams and two cigarettes of marijuana securely wrapped weighing 3.8 grams (S810/18) and a further charge of possession of narcotics, namely, at Tafaigata Prison, knowingly having in your possession three small branches of marijuana (S801/18).

The Offending:

2. According to the Prosecution Summary of Facts accepted by you, on the 20th April this year, the police attended at the Savalalo Market. They had been informed that there were young males suspected of selling marijuana.
3. Whilst the police officers were looking for the young males, the police officers noticed that you were acting suspiciously. One of the police officers approached you and informed you that they suspected that you were in possession of narcotics. A bodily search was conducted and nothing was found on you. You were wearing a pouch bag around your waist. The police searched the pouch bag and found one cigarette securely wrapped in newspaper weighing at 1.4grams and two marijuana cigarettes securely wrapped in foil weighing 3.8grams. The total number of cigarettes found in your possession on the 20th April was three marijuana cigarettes.
4. On the next day 21st April whilst you were in custody at Apia Police Station, your family visited you and gave you a bag of clothes and you were then escorted to Tafaigata prison. At Tafaigata prison, the prison guard conducted the normal search in accordance with their procedures. The prison officer found marijuana in one of the shorts that was packed inside your bag. You were then questioned by police about the shorts and you admitted that the shorts contained marijuana belonging to you. You were brought back to Apia police station. Police then conducted another search and found three small branches of marijuana weighing at 1.4 grams inside the pocket of the same shorts.

Background of the Accused:

5. You are a 58 year old male of Vaiusu-uta and Vaimoso-tai. You have two children, however in your Pre-sentence Report, you told Probation that you have nine children. You completed school to year 8. At the time of this offending you were a vendor at the Fugalei Market selling Pall-Mall cigarettes. Prior to this you worked various jobs over the years including at PPS Samoa and other companies in Apia. As a result of your offending, you have been banished from Vaimoso

Aggravating Features of the Offending:

6. The aggravating features of your offending are as follows:
   • (i) Your possession of marijuana at the Market place;
   • (ii) Your possession of marijuana both at the Police Station and a Prison Facility when you were in custody; and
   • (iii) You committed this offending two days apart.

Aggravating Features in respect of the Offender:

7. The aggravating features personal to you as an offender are your prior convictions for similar offending.

Mitigating Features in respect of the Offender:

8. The mitigating factors personal to you as an offender are:
   • (i) Your early guilty plea; and
   • (ii) Your banishment from Vaimoso village.
     

Discussion:

9. In terms of your offending Malu, the fact that you took possession of marijuana while in police custody is very serious. It is also difficult to understand why you would do so. You also have previous convictions for similar offending in 2008, 2009 and 2011. You also have a prior conviction for assault in 2008. Since 2008 you spent a number of years in prison.
10. Malu, until you decide to change your life, I expect that there’s a real risk that you will continue to come before the Court. I encourage you Malu to try and change your life for the better. The sentence I will impose on you today will include supervision that has programs available for you. You are far too old to be involved in narcotics and you should know a lot better.
11. Now I apply the totality in sentencing principles and adopt information S810/18 as the lead charge. I have considered the authorities referred to me and others including Police v Leota [2011] WSSC 74 (18 April 2011); Police v Kamisi[2018] WSSC 73 (11 May 2018)). I have also considered the circumstances of both offences committed by you, including in particular the fact that you had possession of marijuana after you were initially taken into custody.
12. Having considered these, I adopt 9 months imprisonment start point for sentence. I uplift that by 3 months for your prior convictions. I deduct 1 month for the village banishment and 3 months for your early guilty plea.
13. Accordingly you are convicted and sentenced as follows:
    • In respect of information S810/18 – 8 months imprisonment less time remanded in custody. On your release you are to be under the supervision of the Probation Service for 6 months on the following conditions:
      1. You are prohibited from street vending; and
      2. Attend such programs as directed by the Probation Service.
    • In relation to information S801/18 – 3 months imprisonment to be served concurrently.
14. Malu, please make use of the opportunity that can be given to you by the Probation services.

JUSTICE CLARKE