Police v Peseta [2023] WSSC 22 (26 April 2023)

SUPREME COURT OF SAMOA
Police v Peseta [2023] WSSC 22 (26 April 2023)

Case name:	Police v Peseta
Citation:	[2023] WSSC 22
Decision date:	26 April 2023
Parties:	POLICE (Prosecution) AND FAASAO PESETA aka FAASAO TENISE PESETA male of Pu’apu’a Savaii. (Defendant)
Hearing date(s):
File number(s):	S383/23 #2, S383/23 #3, S383/23 #5
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- On the charge of possession of the loose leaves of marijuana you will be convicted and sentenced to 3 years in prison, that is cumulative to your present term of imprisonment. - For possession of the 142 marijuana seeds I adopt 2 years as a start point. For your guilty plea again deducting one-quarter which is a period of 6 months, leaves a balance of 18 months. On that charge convicted and sentenced to 18 months in prison to be served concurrent to your 3 year term. - In relation to possession on the 20th of January four days later of the 121 cigarettes while imprisoned in the pa-simā. Considering all circumstances, a 5 year start point is appropriate. Deductions for your guilty plea would reduce that to 45 months or 3 years and 9 months. - However as previously noted the level of pressure and control over you by the Correction Officer involved in this matter would have been in my estimation considerable. I will therefore view your offending from a totality of sentencing perspective and reduce that sentence to 3 years in prison. This is to be served concurrent to your other 3 year term.
Representation:	E Tiitii-Lam for prosecution Defendant unrepresented
Catchwords:	- Possession cannabis substances – loose leaves of marijuana – marijuana seeds.
Words and phrases:
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:

FAASAO PESETA aka FAASAO TENISE PESETA male of Pu’apu’a Savaii.
Defendant

Counsel:
E Tiitii-Lam for the prosecution
Defendant unrepresented
Sentence: 26 April 2023

S E N T E N C E

1. The defendant has pleaded guilty to three charges. Firstly S383/23 #3 which reads that at Tanumalala Prison on 16 January 2023 he had in his possession cannabis substances namely loose leaves of marijuana weighing 27.1 grams wrapped in a plastic toilet tissue cover plus dried marijuana leaves weighing 8.28 grams packed in a small ziploc plastic bag.
2. He is also charged by information S383/23 #5 that at the Tanumalala Prison on the same day 16 January 2023 he had in his possession thirty-four (34) marijuana seeds wrapped in the plastic toilet tissue cover and one hundred and eight (108) marijuana seeds packed the the small ziploc bag.
3. He is also charged by information S383/23 #2 that on the 20^th of January at Tanumalala Prison he was again found in possession of narcotics namely 121 marijuana cigarettes wrapped in rolling paper. The defendant is a prisoner at Tanumalala and is serving a lengthy sentence of imprisonment. He is a 42 year old male formerly of Pu’apu’a Savaii.
4. The Police summary of facts which he has accepted says that on the 16^th of January 2023 the Prison Correctional Officers conducted a search of prison Room One as per usual procedures. During that search that the officers found on the defendant the marijuana leaves weighing 27.1 grams wrapped in the plastic toilet tissue and marijuana leaves weighing 8.28 grams in the small Ziploc plastic bag together with the marijuana seeds. The police say that the marijuana leaves were enough to make 50 rolled cigarettes. And they were found concealed in the defendants black ‘atopa’u’ or black suitcase. The summary says the defendant admitted to the officers the suitcase belongs to him.
5. In relation to the incident on the 20^th of January the Police summary says that following the first incident the defendant was transferred to the pa-simā or the maximum security block at the prison. He shared that room with another prisoner named Faofua Koko. On the 20^th of January a search was conducted of his room again as per usual prison procedures. The officers searched the defendants cell mate and found narcotics on him. When interviewed his cell mate told the officers that the defendant was also in possession of narcotics which he was concealing by braiding it together with a piece of cloth. A further search of the cell revealed this. And when the cloth was unrolled the officers discovered the 121 marijuana cigarettes wrapped in white rolling paper. When questioned the defendant admitted the cigarettes belong to him. As a result of this incident the defendant was charged by the police with the charges to which he has now pleaded guilty.
6. Following a request from the court as to how these narcotics entered the Prison the Police have now clarified that a Corrections Officer named Koko Tuilagi was involved in this offending. The police report indicates it was he who delivered the narcotics to the defendant for safety and for distribution around the prison to other inmates and to possibly other Corrections Officers.
7. The court has also been informed that as of the present day neither Koko Tuilagi or any other officers or inmates that may have been involved in this matter have been charged. No reasons have been given by either the Police or the Attorney Generals Office as to why this is so.
8. Clearly the illicit sale and/or distribution of narcotics within the prison walls should be a matter of grave and outmost concern to the Police and the Prison Authorities. And I direct the Registrar ensure that the Commissioner of Police and the Attorney General are sent copies of this decision.
9. There is no doubting that this offending is quite serious. Narcotics has no place inside prison walls and the clear and unequivocal message the court must send to potential offenders is if you engage in the use or trafficking of narcotics within the prison there will be only one outcome. If you are an inmate, you will receive additional prison time and if you are a Corrections Officer you will join those you once guarded. Deterrence must be the main focus of such sentences which must also hold the defendant accountable for his conduct. It must also denounce this kind of behaviour and demonstrate to the community at large that a prison is not a safe haven nor should it be in any way be used for drug offending.
10. The maximum penalty for each of the charges you face is 14 years in prison. I deal firstly with the offending that occurred first in time on the 16^th of January, the charge involving marijuana leaves sufficient to make 50 cigarettes. There is no evidence before me that you were selling these narcotics for commercial gain. That is fortunate for you because if there were the penalty would be much higher. I note that you told the Probation Office and also the court that you were holding these narcotics substances for the officer concerned in this matter. I also accept that to some extent you were powerless or at least felt obliged to obey the instruction of the officer. And that when you were transferred to the pa-simā or the maximum security block both of you probably thought the further drugs you had were safely hidden.
11. Considering all the circumstances of the offending in particular the quantity of cigarettes involved in this particular charge I adopt a 4 year start point for sentence. I note you have a previous conviction for narcotics but that was over 10 years ago and your other convictions are for non-narcotics offending. I will therefore not uplift the start point to reflect your previous convictions but it means you lose the benefit of any deduction for previous good character and background. The only deduction you are eligible for would be for your guilty plea which has saved the courts precious resources and valuable time. I give you the full deduction of one-quarter of sentence for your guilty plea a period of 1 year leaves 3 years in prison.
12. On the charge of possession of the loose leaves of marijuana you will be convicted and sentenced to 3 years in prison, that is cumulative to your present term of imprisonment.
13. For possession of the 142 marijuana seeds I adopt 2 years as a start point. For your guilty plea again deducting one-quarter which is a period of 6 months, leaves a balance of 18 months. On that charge convicted and sentenced to 18 months in prison to be served concurrent to your 3 year term.
14. In relation to possession on the 20^th of January four days later of the 121 cigarettes while imprisoned in the pa-simā. Considering all circumstances, a 5 year start point is appropriate. Deductions for your guilty plea would reduce that to 45 months or 3 years and 9 months.
15. However as previously noted the level of pressure and control over you by the Correction Officer involved in this matter would have been in my estimation considerable. I will therefore view your offending from a totality of sentencing perspective and reduce that sentence to 3 years in prison. This is to be served concurrent to your other 3 year term.
16. O lona uiga o le aofai o le faasalaga faaopoopo e tatau ona tuli mo le mataupu lenei Faasao e 3 tausaga i le toese. O lena ua aofia uma ai faaiuga mo moliaga ia e tolu, ae fa’atoa tuli pe a mae’a lou faasalaga lae tuli i le taimi nei ona e ese le mataupu lena ese le mataupu lea.
    

JUSTICE NELSON