Police v Tofilau [2018] WSSC 72 (2 July 2018)

SUPREME COURT OF SAMOA
Police v Tofilau [2018] WSSC 72

Case name:	Police v Tofilau
Citation:	[2018] WSSC 72
Decision date:	2 July 2018
Parties:	POLICE v WERNER TOFILAU male of Iva and Tafaigata Prison
Hearing date(s):
File number(s):	S833/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted and sentenced to 10 months imprisonment. This sentence is to be cumulative on the present sentence of 8 years imprisonment served by the accused.
Representation:
Catchwords:	Aggravating features relating to the offending – aggravating features relating to the accused – mitigating features relating to the accused as offender – starting point for sentence – sentence
Words and phrases:	c
Legislation cited:	Narcotics Act 1967 s.7 & 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

WERNER TOFILAU male of Iva and Tafaigata Priso.

Accused

Counsel:
R Titi for prosecution
Accused in person

Sentence: 2 July 2018

S E N T E N C E

The charges

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, he pleaded guilty at the earliest opportunity.

The offending

2. According to the prosecution’s summary of facts accepted by the accused, on Monday 23 April 2018 at around 5pm, a correctional officer escorted the accused to visit his family at Vailoa. On their return to Tafaigata prison, the accused told the correctional officer to stop at a shop at Vaitele for him to buy some bread. When they arrived at this shop, the accused went inside and bought five loaves of bread which were placed inside a bag. When the accused came out of the shop, he continued with the correctional officer to Tafaigata prison. On arrival at the prison, one of the prison guards divided one of the loaves of bread into two halves. He found five small plastic bags containing marijuana leaves concealed inside the bread. The total weight of these marijuana leaves is 6.2 grams and is estimated to yield eight marijuana joints.

The accused

3. The accused is serving an 8 year sentence for rape and indecent assault which will expire in 2022. He has other previous convictions. He is now 35 years old.

The aggravating features relating to the offending

4. The aggravating features relating to the offending are as follows:
   • (a) the present offence was committed whilst the accused is serving a prison sentence,
   • (b) the present offence involves an attempt to smuggle marijuana into the prison by concealing them inside a loaf of bread, and
   • (c) the quantity of marijuana leaves involved.

The aggravating features relating to the accused

5. The accused’s previous convictions, even though for different types of offences, are an aggravating feature relating to the accused as offender.

The mitigating features relating to the accused as offender

6. The only mitigating feature relating to the accused as offender is his early guilty plea. I do not accept the accused’s apology and expression of remorse. I do not believe that he is truly remorseful.

Discussion

7. Having regard to the aggravating features relating to the offending, I will take 12 months as the starting point for sentence. I will add on 2 months for the previous convictions. That increases the starting point to 14 months. I will then deduct 1/3 or 4 months for the early guilty plea. That leaves 10 months.

Result

8. The accused is convicted and sentenced to 10 months imprisonment. This sentence is to be cumulative on the present sentence of 8 years imprisonment served by the accused.

CHIEF JUSTICE