Police v Ulberg [2018] WSSC 40 (19 February 2018)

SUPREME COURT OF SAMOA

Police v Ulberg [2018] WSSC 40

Case name:	Police v Foni Valentine Ulberg
Citation:	[2018] WSSC 40
Decision date:	19 February 2018
Parties:	POLICE v FONI VALENTINE ULBERG male of Vailoa Faleata.
Hearing date(s):
File number(s):	S1986/17
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 12 months supervision on the following conditions: (i) You are to carry out 60 hours of community work at the Samoa Victim Support Group and if you are not accepted by the SVSG for community work, as otherwise directed by the Probation Service; (ii) You are not to consume alcohol for 3 months from today; (iii) You are to attend any further programs as directed by the Probation Service; and (iv) You are not to reoffend during the supervision period; and (v) You are to re-appear before this Court on Monday 21st May 2018 at 12.30pm for judicial monitoring and report from the Probation Service as to your satisfactory compliance with the community based sentence.
Representation:	F Ioane for prosecution Accused in person
Catchwords:
Words and phrases:	possession a cannabis substance, if you cannot control alcohol, then stay away from it
Legislation cited:	Narcotics Act 1967
Cases cited:	Police v Kennach (14 October 2016 per Nelson J)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FONI VALENTINE ULBERG male of Vailoa Faleata.
Accused

Counsel:
F Ioane for prosecution
Accused in person

Sentence: 19 February 2018

S E N T E N C E

1. Foni, you appear for sentence that at Apia Police station on the 25 November 2017 contrary to sections 7 and 18 of the Narcotics Act 1967, you knowingly had in your possession a cannabis substance being one cigarette of marijuana securely wrapped in a piece of foil weighing 2 grams, one small plastic bag containing loose leaves of marijuana weighing 2.2 grams and one cigarette of marijuana securely wrapped in white rolling paper weighing 0.7 grams. Weighing in total 4.9 grams.
2. According to the Prosecution summary of facts admitted by you, between 7pm and 8pm on Saturday 25 November 2017 you were found by the police patrol having a quarrel with a taxi driver in front of the RSA night club.
3. You were apprehended by police and take you to the Apia police station. At the police station a body search was conducted where they found the marijuana substances that formed the charges against you. Weighing in 4.9 grams. The total amount of marijuana that was found in your possession is equivalent to 5 marijuana cigarettes.
4. You are a 26 year old male of Vailoa Faleata. You are in a defacto relationship and you are un-employed. You told Probation Services that you commenced using marijuana when you were in school. You are described by who seems to be your adopted parents as honest, responsible and a caring individual who has your shortcomings but overall, a decent person. Your pulenu’u refers to your consumption of alcohol as a contributing factor of your offending.
5. You told the Probation Service that since this offending, you have not touched alcohol. Probation Service says that in earlier matters before the Court, you complied well with your supervision conditions. Probation also says that in terms of your offending, alcohol may have been a contributing factor. Probation refrains from making a recommendation.
6. You have prior convictions for drunkenness and profane language in 2011 and intentional damage in October 2015 for which you were sentenced to 18 months supervision with various special conditions. You have successfully completed a 7 week Toe Afua se Taeao Fou Program.
7. In terms of aggravating features for this matter they are your prior conviction in 2015 though of a different nature as well as the prevalence of this type of offending in our community.
8. In terms of the mitigating features I note the following:
   • Your guilty plea,
   • Second and important is your completion of the Toe Afua se Taeao Fou Program and,
   • Based on what you have told me today your remorse which I accepted as genuine
9. Foni, prosecution seeks a start point of sentence of 6 months imprisonment with a 3 months increase for your prior convictions.
10. In total you had in your possession 4.9 grams of marijuana which is equivalent to 5 marijuana cigarettes. Your case appears very similar both in facts, prior convictions and quantity of marijuana to the matter of Police v Kennach (14 October 2016 per Nelson J) referred to by Prosecution.
11. In your case, you have successful completed the Toe Afua se Taeao Fou program. I have also referred to the references provided on your behalf.
12. Having considered your matter carefully and in particular, your successful completion of the Toe Afua se Taeao Fou program and that you have it seems refrained from consuming alcohol for the past few months, I have determined that a non-custodial sentence is appropriate.
13. Foni, you must however use this opportunity wisely. It is likely to be your last opportunity and should you come back before the Court, you will run a very serious risk of being imprisoned. You have what appears to be loving and supportive parents and your partner Denise who supports you. You also appear to be an active member of your church, the Vailoa Independent Assembly of God.
14. Foni you must understand that your offending has an impact on those people around you, particularly those who love you. Use what you have learnt at the Teo Afua se Taeao Fou program and if you cannot control alcohol, then stay away from it as it will bring you back to the Court. Change your ways, if not for yourself, for those who love you.
15. Now on the charge before the Court, you are convicted and sentenced to 12 months supervision on the following conditions:
    • (vi) You are to carry out 60 hours of community work at the Samoa Victim Support Group and if you are not accepted by the SVSG for community work, as otherwise directed by the Probation Service;
    • (vii) You are not to consume alcohol for 3 months from today;
    • (viii) You are to attend any further programs as directed by the Probation Service; and
    • (ix) You are not to reoffend during the supervision period; and
    • (x) You are to re-appear before this Court on Monday 21^st May 2018 at 12.30pm for judicial monitoring and report from the Probation Service as to your satisfactory compliance with the community based sentence.
16. Foni use this opportunity wisely do not re-offend and we will see you in 3 months.

JUSTICE CLARKE