Police v Siolo [2019] WSSC 91 (7 June 2019)

SUPREME COURT OF SAMOA
Police v Siolo [2019] WSSC 91

Case name:	Police v Siolo
Citation:	[2019] WSSC
Decision date:	07 June 2019
Parties:	POLICE v MEAALOFA SIOLO female of Levi Saleimoa (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- The defendant will be convicted of the offence but discharged without penalty pursuant to section 72 of the Sentencing Act 2016. You are free to go Meaalofa but do not ever do this again, understand? (Defendant acknowledged she understood).
Representation:	L Faasii for prosecution A Su’a for defendant
Catchwords:	Possession of narcotics -
Words and phrases:	attempting to smuggle narcotics
Legislation cited:	section 72 of the Sentencing Act 2016
Cases cited:	Attorney General v Ropati [2019] WSCA 2
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

MEAALOFA SIOLO female of Levi Saleimoa.
Defendant

Counsel:
L Faasii for prosecution
A Su’a for defendant

Sentence: 07 June 2019

S E N T E N C E

1. Meaalofa has been charged with being found in possession of narcotics namely two half marijuana cigarettes. The police summary of facts which does not appear to be disputed states she is a 36-year-old female of Saleimoa in a defacto relationship with ten children and currently working at a company in Vaitele.
2. On 23 February 2019 she went to Tafaigata Prison to visit her spouse who is serving a prison term. As is the usual procedure prison guards at the front gate conducted a full body search on her. The search revealed the two half cigarettes securely wrapped in rolling paper in the defendants back left pocket of her shorts. The defendant was accordingly taken into custody and charged hence her appearing in court today after pleading guilty to said charge.
3. The defendants explanation given through her counsel is that the cigarettes were given to her by a friend and she accidently left them in her back pocket while shopping. The narcotics were still on her when she went to Tafaigata to visit her husband where it was discovered by the Police search.
4. I find this a highly unlikely story. What reasonable person puts marijuana into their pocket and then forgets about it especially when they are about to visit someone in prison. The more likely explanation Meaalofa is you were trying to smuggle these narcotics into your imprisoned husband and you just simply got caught.
5. The actions of attempting to smuggle narcotics into a prison constitute a serious breach of the law. Not because of the quantity in this case which is minor but because of the principle involved. Custodial sentences are quite appropriate and warranted for such cases and in fact have been issued in the past by the court. Why? Because it is necessary to denounce such behaviour and try and deter it. Deterrence on the part of the particular offender and deterrence on the part of the general public and to send to the community the message that anyone foolish enough to try this can end up in jail.
6. The question for me in this matter is whether the defendant should be given such a penalty. A penalty which no doubt Meaalofa your counsel has told you can stretch up to 14 years in prison even for two half cigarettes.
7. Considering all circumstances however especially the fact as confirmed by the pre-sentence report on page 3 that you have completed a Psycho-Education Alcohol and Drugs Rehabilitation Programme with the Salvation Army. Completed it successfully and the program is confident of the transformation in your outlook on alcohol and drug use and believes that no further treatment is required.
8. Taking that into consideration as well as the defendants background and all the relevant circumstances of the offending I consider an imprisonment penalty is not appropriate or warranted or required. The defendants misguided actions have already been suitably addressed and I am satisfied she will not in future engage in such reckless or criminal behaviour. But just in case there is any doubt on your part Meaalofa let me state that if you do this again I assure you, you will join your husband at Tafaigata.
9. As to a suitable penalty then to impose for what you did, your counsel has filed an application to discharge you without conviction based on the fact that a conviction may - and the operative word here is “may” - impact upon your chances of securing future employment. I confess it is difficult to understand the basis of the application since the defendant is currently employed and has been in her current employment since 2018. There is nothing before the court to suggest or indicate that a conviction will result or may result in loss of her current employment. Basing a discharge without conviction on a contingent possibility which may or may not occur is in my respectful view introducing an inappropriate consideration into the exercise.
10. In the recent Court of Appeal decision concerning the former President of the Land and Titles Court Attorney General v Ropati [2019] WSCA 2 the Court of Appeal in considering the issue of travel and immigration consequences of a conviction said that this should normally not be taken into account. Their reasoning was that such matters are properly left to the relevant authorities and there was no evidence before them suggesting that in fact a conviction of the President would have such consequences.
11. Our Court of Appeal also helpfully reviewed the approach to be taken to applications of discharge without conviction and highlighted the primary test which is as stated in section 70 of the Sentencing Act 2016 that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
12. I have observed above how serious the defendants offending in this case is and how the courts have treated it. There is nothing before me that persuades me that the possible consequences of a conviction would be out of all proportion to the gravity of the defendants offending.
13. I express surprise at the position of the Police in relation to the application. They elected to charge the defendant in the first place but they have through their counsel indicated their support of the application to discharge without conviction. The two positions are clearly contradictory.
14. The application filed has no merit it is dismissed. A conviction should be entered against this defendant.
15. Having done so I now come to consider an appropriate penalty. I take into account the defendants genuine albeit misguided desire to help her husband, her good and clean record, the various support materials in her favour, her completion of a rehabilitation program, as well as her early guilty plea which has saved the courts valuable time and limited resources. It is also relevant that in this case we are dealing with a relatively small quantity of narcotics.
16. The defendant will be convicted of the offence but discharged without penalty pursuant to section 72 of the Sentencing Act 2016. You are free to go Meaalofa but do not ever do this again, understand? (Defendant acknowledged she understood).
    

JUSTICE NELSON