Police v Lavea [2018] WSSC 75 (10 May 2018)

IN THE SUPREME COURT OF SAMOA
Police v Lavea [2018] WSSC 75

Case name:	Police v Sefo Misi Lavea
Citation:	[2018] WSSC 75
Decision date:	10 May 2018
Parties:	POLICE (Informant) and SEFO MISI LAVEA male of Safotu and Tafaigata prison (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- Accordingly, you are convicted and sentenced to 3 years imprisonment. That term is to be concurrent to your life sentence for murder.
Representation:	L Mamaia for Prosecution Defendant self represented
Catchwords:	possession of narcotics; commercial purpose; remorse
Words and phrases:	to assist with prisoners planning to escape; raid searching the entire prison; hidden in a ceiling of the toilets; found to contain thirty nine (39) marijuana cigarettes securely wrapped in foil and $1,000.00; within a prison facility.
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

SEFO MISI LAVEA, male of Safotu and Tafaigata prison.
Defendant

Counsel:
L Mamaia for Prosecution
Defendant self represented

Sentence: 10 May 2018

SENTENCE

1. Sefo, you appear today for sentence on one charge of possession of narcotics namely cannabis substances, thirty nine (39) marijuana cigarettes securely wrapped in foil weighing 31.8 grams. The maximum penalty for this charge is 14 years imprisonment.

The Offending:

2. When the matter was first set down for sentence on 16 April 2018, you disputed the Summary of Facts saying that the marijuana was given to you by a Prison Officer named John to hold. An adjournment was then taken for prosecution to make enquiries as to your allegations. When the matter was re-called for sentence on 1 May 2018, prosecution advised that there are two Prison Officers named John and they both denied the allegation. Prosecution advised that if the Summary of Facts were disputed, evidence would be called.
3. The Summary of Facts was then re-read to you and you accepted the Summary of Facts. You were asked whether you maintain your allegation that the marijuana was given to you because this is material to your sentencing because if it belonged to a Prison Officer as alleged, your sentence would be less than if the marijuana belonged to you. You did not persist with your allegation that the marijuana was given to you by a Prison Officer.
4. According to the Summary of Facts accepted by you, on the 9^th February 2018, the Commissioner of Prisons requested assistance from the Commissioner of Police to assist with prisoners planning to escape. On arrival, Police conducted a raid searching the entire prison including cell blocks and houses where the prisoners reside.
5. House number 4 was searched and a black back pack was located hidden in a ceiling of the toilets. Police officers asked prison officers present in the house who owned the back pack but none knew. Later, a prison guard brought you to Police and you admitted that the back pack belongs to you. The back pack was searched and it was found to contain thirty nine (39) marijuana cigarettes securely wrapped in foil and $1,000.00.

The Accused:

6. You are a 37 year old male of Safotu Savaii and serving a life prison term for murder entered on the 11^th July 2008. According to your PSR, you are the youngest of 11 children. You were formerly in a de-facto relationship and have 3 children. You told the Probation Service that you have been a drug user since you were 15 years of age but since your imprisonment, that has put an end to your marijuana consumption.

Mitigating Factors

7. The mitigation features personal to you of your matter are as follows:
   • Your early guilty plea; and
   • Your remorse which you have shown before the Court and in the Pre-Sentence Report.

Aggravating factors:

8. The aggravating factors relating to your offending are:

(a) The quantity of marijuana in your possession;
(b) That you possessed marijuana within a prison facility; and
(c) That your possession of marijuana was for a commercial purpose within a prison facility.

9. The aggravating factors personal to you is your previous conviction for murder for which you are continuing to serve an imprisonment term.

Discussion:

10. After stating that the marijuana belonged to a Prison Officer, when asked why you had possession of marijuana and whether it was for personal or commercial use, you said it was for personal use. You said that you would smoke the marijuana when you go to do work on the prison plantation.
11. Asked where the $1,000.00 came from that was in your back pack, you said that it was from your business. You said that you sold items in the prison and from businesses outside of prison.
12. I do not accept what you have told me. You told the Probation Service you have not used marijuana since you were imprisoned. You however told me a different story that you used marijuana personally at prison when you went to the plantation. The quantity of marijuana plus your possession of $1,000.00 in your back pack lead me to infer that your possession of the marijuana cigarettes was for commercial purposes. Yes, I accept that you have a business but I infer from the material before me that your business is the sale of the marijuana within the prison.
13. A deterrent sentence is appropriate. It must be clear that possession of narcotics in prison is a serious offence and particularly so if it is for a commercial purpose.
14. Prosecution seeks a start point of 4 years imprisonment. Based on the authorities, I accept 4 years start point for imprisonment as appropriate. I uplift by 6 months for your prior conviction. I deduct 6 months for your remorse expressed in Court and in your Pre-Sentence Report and 12 months for your guilty plea.
15. Accordingly, you are convicted and sentenced to 3 years imprisonment. That term is to be concurrent to your life sentence for murder.
16. You have told me you are soon eligible for parole and wish to return home to your parents and children. I encourage you Sefo to stay away from drugs and be a good model prisoner so that you can successfully apply for a grant of parole in due course.

JUSTICE CLARKE