Police v Gerard [2018] WSSC 39 (9 February 2018)

SUPREME COURT OF SAMOA
Police v Gerard [2018] WSSC 39

Case name:	Police v Gerard
Citation:	[2018] WSSC 39
Decision date:	9 February 2018
Parties:	Police v DILO GERARD TUMUA LEO male of Levili and Fagalii-uta.
Hearing date(s):
File number(s):	S1333/17 & S1347/17.
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	Accordingly, you on both charges and sentenced to 12 months supervision to be served concurrently with the following special conditions: (i) you are to continue to attend school and have a satisfactory school attendance record supervised by the Probation Service; (ii) you are to attend any further programs as may be directed by the Probation Service; and (iii) you are to re-appear before me in 3 months for judicial monitoring and a report from the Probation Service of your satisfactory school attendance and performance.
Representation:	L Sio for Prosecution Defendant self represented
Catchwords:	possession of narcotics - unlawful supply of narcotics
Words and phrases:	marijuana was being sold for a commercial benefit, selling the marijuana at school to other students
Legislation cited:	Community Justice Act 2008 Sentencing Act 2016
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

DILO GERARD TUMUA LEO male of Levili and Fagalii-uta.
Defendant

Counsel:
L Sio for prosecution
Defendant self represented
Sentence: 9 February 2018

S E N T E N C E

1. Dilo, you appear for sentence on one charge of possession of narcotics, namely eight marijuana cigarettes (S1333/17) and on a charge of unlawful supply of narcotics (S1347/17). Both charges carry a maximum penalty of up to 14 years imprisonment.

The Offending

2. According to the Prosecution Summary of Facts which you have confirmed, you were at school on the 13^th September 2017 at Leififi College. A teacher saw you selling marijuana cigarettes to another student. You were told to hand over your bag and the teacher found 8 marijuana cigarettes in it. Police were then contacted.
3. You told the Probation Service that you owed money to your father. You asked a friend for money to repay that money to your father and instead, he gave you the marijuana to sell.

The Accused

4. You are 17 years old and residing at Vaiala-tai with your family. You are the fourth eldest of six children. You are a student at Leififi College. You have a keen interest in sport and have toured Tahiti as part of the Samoan under 17 national soccer team. You also toured New Zealand in late 2017 joining the Samoan under 19 training squad in New Zealand.
5. You told me that you want to continue to play sport and your aim is to be a Police Officer. I have no information available to me about your academic performance though your Pre-Sentence Report says that you repeated year 11 which suggests some academic challenges in terms of your schooling.
6. You were ordered to attend the Toe Afua Se Taeao Fou Program which you successfully completed. The report says that you were an active and committed participant in the program committed to maintaining your goals.

Aggravating features of your offending

7. The aggravating features of this matter are as follows:
   • the quantity of marijuana in your possession;
   • that the marijuana was being sold for a commercial benefit; and
   • you were selling the marijuana at school to other students

The mitigating features

8. There are no mitigating features in respect of your offending. Personal to you however is your young age, previous good character, your successful completion of the Toe Afua Se Taeao Fou Program, remorse and early guilty pleas to the charges before the Court.

Discussion

9. Prosecution seeks an imprisonment term with a sentence start point of 6 months. Probation recommends a community based sentence with supervision and community work.
10. I accept the recommendation of the Probation Service that a community based sentence for you is appropriate. Section 5(2) of the Community Justice Act 2008 provides:

“Where an offender is convicted of an offence punishable by imprisonment, the Court when considering the sentence it should impose, must have regard to the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.”

11. In addition to the community based sentences set out in the Community Justice Act 2008, the Sentencing Act 2016 provides further community based sentencing options available to a sentencing judge. Furthermore, subject to the proviso in subsection 11(2) of the Sentencing Act 2016, section 11(1) of the Sentencing Act requires the Court to consider whether an accused would be more appropriately dealt with by way of discharge without conviction, or by convicting and discharging an accused or by ordering an accused to come up for sentence. An imprisonment term, as stipulated in section 10 of the Sentencing Act 2016, is the most restrictive of sentences.
12. Despite the aggravating features of your offending, the accused personal circumstances together with the other mitigating factors personal to the accused clearly make a non-custodial sentence appropriate. There is no evidence to suggest that you are a safety risk to the community. Your offending appears to be out of character and in particular, the act of foolish youth. You are attending school and have your life ahead of you.
13. In imposing a community based sentence on you, I have formed the view due to the aggravating features of your offending that a discharge without conviction and a conviction and discharge is not appropriate. I accept however that the imposition of a conviction on you will have ramifications for you and your ability to continue to represent Samoa in soccer.
14. The community based sentence I will impose will address your rehabilitation and continued schooling.
15. Dilo, make the most of this opportunity extended to you today. Complete your schooling and stay away from drugs. Educate others also about the dangers of drugs and how seriously it is viewed by the Courts. You must understand that should you re-appear again for drug related offending, the outcome of your sentence will likely be imprisonment.

The penalty

16. Accordingly, you on both charges and sentenced to 12 months supervision to be served concurrently with the following special conditions:
    • (iv) you are to continue to attend school and have a satisfactory school attendance record supervised by the Probation Service;
    • (v) you are to attend any further programs as may be directed by the Probation Service; and
    • (vi) you are to re-appear before me in 3 months for judicial monitoring and a report from the Probation Service of your satisfactory school attendance and performance.

JUSTICE CLARKE