Police v Tusitelo [2018] WSSC 33 (21 March 2018)

SUPREME COURT OF SAMOA
Police v Tusitelo [2018] WSSC 33

Case name:	Police v Tusitelo
Citation:	[2018] WSSC 33
Decision date:	21 March 2018
Parties:	POLICE v LEPUPA TUSITELO, LAASIA GISA, PAULO MASELUSI and PENINA GISA all of Satui, Fasitoouta.
Hearing date(s):	22 January 2018, 13 March 2018
File number(s):	S1990/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Each of the accused Lepupa, Laasia, and Paulo is convicted and sentenced to 12 months supervision and ordered to perform 100 hours community service as directed by the probation service. - The accused Penina is discharged without conviction.
Representation:	F Ioane for prosecution Accused in person
Catchwords:	Alcohol and Drug Court – cultivation of narcotics – expressions of remorse –good aspects of the accused’s characters – pleaded guilty at the earliest opportunity –village penalty -Toe Afua Se Taeao Fou rehabilitation programme of the Alcohol and Drug Court
Words and phrases:
Legislation cited:	Narcotics Act 1967, s.6 (1) (a)
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

LEPUPA TUSITELO, LAASIA GISA, PAULO MASELUSI and PENINA GISA all of Satui, Fasitoouta.
Prosecution

Counsel:
F Ioane for prosecution
Accused in person

Sentence: 21 March 2018

S E N T E N C E

The charges

1. The accused Lepupa Tusitelo (Lepupa) and Laasia Gisa (Laasia) is each charged with one count of cultivation of narcotics, contrary to s.6 (1) (a) of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment. The accused Paulo Maselusi Lepa (Paulo) and his wife Penina Gisa (Penina) are also jointly charged with one count of cultivation of narcotics under the same provision of the Narcotics Act 1967. All of the accused pleaded guilty to the charges at the earliest opportunity.

The offending

2. On 24 November 2017 at around 1:00pm, the police received a call from an informer that all four accused were cultivating marijuana at Satui, Fasitoo-uta. The police obtained a search warrant and attended the call. When the police arrived at Satui, Fasitoo-uta, they searched the premises of the accused who are from the same family. They found six marijuana plants. Unfortunately, the summary of facts does show how tall were these marijuana plants. It is the pre-sentence reports of the accused which show that the plants were about 6 inches long and were grown behind the kitchen of the accused’s family.

The accused

(a) Lepupa

3. The accused Lepupa as his pre-sentence reports shows is a 36 year old male. He was married and has one daughter from that union. He is presently without formal employment but works on his family’s plantation.
4. Lepupa’s sister told the probation service that her brother is a kind, helpful, and humble person. The written testimonials from the pastor of his church and the pulenuu of the village show that he is a responsible, humble, and hardworking person in church and village community. They have all pleaded for a second chance for Lepupa. Lepupa is also a first offender.
5. Lepupa told the probation service that he has been consuming marijuana for 10 years to give him strength when working on his family’s plantation. He was growing the marijuana plants with which he has been charged for his own personal consumption. Lepupa and all the other accused were penalised by their village council and ordered to provide lunch for the next meeting of the village council.
6. Lepupa has also attended and successfully completed the 8 week Toe Afua Se Taeao Fou rehabilitation programme of the Alcohol and Drugs Court (ADC).

(b) Laasia

7. The accused Laasia, as his pre-sentence report shows, is a 55 year old male. He was married but has separated from his wife. After leaving school, he was engaged in several manual jobs. He last such job was mowing lawns which he quitted in order to participate in the ADC rehabilitation programme.
8. Laasia’s sister told the probation service that her brother is a peaceful, humble, and hardworking person within their family. The written testimonial from the pastor of his church shows him a devout member of their congregation and the written testimonial from his village pulenuu shows him as a supportive person in the activities of the village. Laasia is also a first offender.
9. Laasia told the probation service that he has been consuming marijuana for 10 years to motivate him when doing laborious jobs at his family’s plantation. He was growing the two marijuana plants with which he has been charged for his own personal consumption. These marijuana plants were about 6 inches long when seized by the police. He has been penalised by his village council together with the other three accused.
10. Laasia has also attended and successfully completed the 8 week Toe Afua Se Taeao Fou rehabilitation programme of the ADC.

(c) Paulo

11. The accused Paulo, as his pre-sentence report shows, is a 25 year old male. He is married to the accused Penina and have two young children. He is a keen rugby player and has played in the national under 18 and under 19 rugby teams. He is currently employed at a company earning $200 a fortnight.
12. He is described by a member of his family as a good person. The testimonial from his employer shows him as a friendly, honest, responsible, and hardworking person. Paulo is also a first offender.
13. He told the probation service that he has been consuming marijuana for many years as it helps to motivate him when doing work at his plantation. The marijuana plants he was growing were for his own personal consumption. The marijuana plants were about 6 inches long when seized by the police. He has also been penalised by his village council together with the other three accused.
14. Paulo has also attended and successfully completed the 8 week Toe Afua Se Taeao Fou rehabilitation programme of the ADC.

(d) Penina

15. The accused Penina, as her pre-sentence report shows, is 24 years old and married to the accused Paulo and they have two young children. She is currently pregnant with her third child. She stays at home to care for her children.
16. Penina’s aunty told the probation service that her niece is a peaceful and obedient person and an active churchgoer. She pleads for mercy on Penina. The written testimonial from the pulenuu of her village shows her to be an active and supportive member of the village. She is also a first offender. Penina has also been penalised by her village council together with the other three accused.
17. Penina relayed to the probation service that the marijuana plants with which she has been jointly charged with her husband Paulo were planted by her husband. Her involvement in this matter is that she was aware of her husband’s illegal activities but did not report it.
18. Penina has attended and successfully completed the 8 week Toe Afua Se Taeao Fou rehabilitation programme of the ADC even though it now appears there was no need for her to do so.

The aggravating features relating to the offending

19. The number of marijuana plants involved is an aggravating feature relating to the offending even though they were small plants.

The aggravating features relating to the accused as offenders

20. The good aspects of the accused’s characters, their punishment by the village council, their expressions of remorse, their successful completion of the Toe Afua Se Taeao Fou ADC programme, and their early guilty pleas are all mitigating features relating to them as offenders.
21. However, I must point out that Penina’s level of criminal responsibility in this matter is very minimal to say the least. One can understand why she did not report on her husband who was the sole breadwinner for her and her two young children.

Discussion

22. Having considered all the relevant features of this matter, I have decided to give another chance to the accused Lepupa, Laasia and Paulo to redeem themselves, and to impose non-custodial sentences.

Result

23. Each of the accused Lepupa, Laasia, and Paulo is convicted and sentenced to 12 months supervision and ordered to perform 100 hours community service as directed by the probation service.
24. The accused Penina is discharged without conviction.

CHIEF JUSTICE