Police v Euta [2023] WSSC 84 (13 August 2023)

SUPREME COURT OF SAMOA
Police v Euta [2023] WSSC 84

Case name:	Police v Euta
Citation:	[2023] WSSC 84
Decision date:	13 August 2023
Parties:	POLICE v MOSE EUTA
Hearing date(s):
File number(s):	2023-00281 SC/CR/UP
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	CHIEF JUSTICE PERESE
On appeal from:
Order:	- Sentenced to nine (9) months supervision. He is directed to undertake counselling for drugs and alcohol, he is also directed to undertake counselling for his grief, in particular, dealing with his new role as a sole parent and the responsibilities and challenges that he faces.
Representation:	L I Atoa for prosecution L Sio-Ofoia for accused
Catchwords:	Aggravating and mitigating factors – maximum penalty – starting point for sentencing – sentence
Words and phrases:
Legislation cited:	Sentencing Act 2016: s. 10 Narcotics Act 1967 s 13(b)(c), s 7&18
	Community Justice Act 2008
Cases cited:	Police v Bragovits
	Police v Masame [2007] WSSC 92 (14 December 2007)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MOSE EUTA male of Fasitoo-uta
Accused

Counsel:
L I Atoa for prosecution
L Sio-Ofoia for accused

Sentence: 13 August 2023

SENTENCE OF PERESE CJ

1. The defendant has pleaded guilty to two (2) charges as follow:
   • (1) One (1) count of possession of utensils pursuant to section 13 (b)(c) of the Narcotics Act 1967, which carries a maximum penalty not exceeding seven (7) years or a fine not exceeding 200 penalty units or both.
   • (2) One (1) count of possession of narcotics pursuant to sections 7 & 18 of the Narcotics Act 1967, which carries a maximum penalty not exceeding fourteen (14) years imprisonment.
2. I have had regard to the submissions of the police contained in the sentencing memorandum dated 4 October 2023; the written submissions filed on behalf of the defendant dated 4 October 2023; and a pre-sentence report dated 26 September 2023. The pre-sentence report attaches a letter from the pulenu’u of the village of Sapapalii, and the Court extends its thanks to the Tofi o le Nuu, Gaugau Lio Failava for his contribution.
3. The facts in this matter are relatively uncomplicated. The police received a tip off telephone call from an unknown caller that the defendant was allegedly selling illegal substances around the Salelologa area. The police drove to the site of the alleged activity; however, on the way they were passed by the defendant travelling in the opposite direction. The police followed and stopped the defendant at Fusi, Safotulafai. The police took the defendant to the Tuasivi police station where he was searched. The police discovered that the defendant had in his possession:
   1. SAT$500
   2. One glass pipe;
   100. Eight small plastic bags of dried leaves of marijuana plant weighing 3.68 grams.
4. On 1 August 2023, through counsel, the defendant pleaded guilty to both of the charges referred to above in paragraph 1 of these notes.
5. The defendant is a 41-year-old male; a widow with four children. His wife died in 2021. He works as a freelance electronics contractor, having previously worked for of a large company in Salelologa, Savaii, in its electronics section.
6. At present, the defendant and his children live with his paternal family in Sapapalii. His sisters, who reside overseas, contribute to the defendant’s family income.
7. Of concern is the defendant’s advice recorded in the probation service report that he consumes both alcohol and drugs, which I understand to be illegal drugs.
8. Respectfully, sir, this is a very poor example to show your children. I accept your counsel’s submission that it is likely that you are still mourning the loss of your late wife, which must have been devastating to you and your children; but taking illegal drugs is not an answer, nor is alcohol for that matter.
9. The probation service report says you advised that you divided the marijuana received from a friend into small plastic bags and intended to sell them for profit. You are also recorded as saying you were making your way to the Salelologa market to sell the marijuana packed in plastic bags; but was unable to sell the marijuana that day. I understand through counsel that you do not accept the accuracy of the statements recorded in the probation report. It is unnecessary for me to resolve this factual dispute. The alleged statements are not included in the Police summary of facts, which you have accepted, and on which I am obliged to sentence you. Moreover, the police sentencing memorandum concludes: the Prosecution acknowledges from the facts that the narcotics found in the defendant’s possession was for his personal use.
10. The prosecution relies on Police v Masame [2007] WSSC 92 (14 December 2007), in support of the submission that unless there are exceptional circumstances which justify a non-custodial sentence, that custodial penalties must always be applied. However, that decision pre-dates the Community Justice Act 2008 (“the CJA”) which, as its long title provides: is intended to promote criminal justice by the provision of a community-based justice system that fosters community-based sentencing options and the rehabilitation and reintegration of offenders.
11. The principles of the sentencing regime in the CJA are included in the hierarchy of sentences and orders the court may make, pursuant to s. 10 of the Sentencing Act 2016:
    • 10. Hierarchy of sentences and orders - (1) The hierarchy of sentences and orders set out in subsection (2) reflects the relative level of supervision and monitoring of, and restrictions imposed on, a defendant under each sentence or order.
    • (3) The hierarchy of sentences and orders, from the least restrictive to the most restrictive, is as follows:
      • (i) discharge or order to come up for sentence if called on;
      • (ii) sentences of a fine and reparation;
      • (iii) community-based sentences of community work and supervision;
      • (iv) sentence of imprisonment.
12. For this reason, I accept the sentencing principles set out in the CJA are relevant to and should guide the approach to sentencing in this matter. Although serious offending, the court has available to it a wide discretion to ensure that the justice is done, on a case-by-case basis.

The aggravating and mitigating factors

13. The Police submits the aggravating features are:
    • (1) Police finding narcotics. This is not an aggravating feature of the offence; the finding of narcotics is an element of the offence and gives rise to the charge. An aggravating feature of the offending may have been the narcotics were stashed or concealed in a way which was difficult to detect – such as in a concealed compartment in the vehicle. But, the narcotics were easily found.
    • (2) Place of offending. It is suggested that having marijuana in a slow-moving vehicle made it easier for him to access the substance. I am not persuaded that this is an aggravating feature. It may be a concern the defendant had the narcotics in his car in a busy market place, thereby giving rise to the danger of the narcotics being lost or misplaced, or the subject of a theft, which in turn may give rise to public disorder; more is required to elevate place of offending as an aggravating factor.
    • (3) Public reported the case. This is the third feature the Police submits to be an aggravating feature. Respectfully, this is not an aggravating feature. An aggravating feature normally makes the offending worse than in other cases. Many, if not most cases of this type involve vigilance of members of the public. The public have an important role in the detection of this type of offending.
14. Ms Sio-Ofoia does not make any submissions concerning aggravating factors.
15. I do not see from the summary of facts any aggravating features of the offending. It appears you have been compliant with Police request; as noted earlier, there did not seem to be any issue about the discovery of the narcotics.

Mitigating factors

16. The Police identify one mitigating factor – your guilty plea.
17. Your counsel on the other hand submits there are four mitigating factors:
    • (a) Your guilty plea
    • (b) Remorse
    • (c) You are a first defender and have a previous good record
    • (d) You have paid a substantial fine of WST$5000 to your village council.
18. I accept that these factors mitigate your offending either in relation to the offence or to your personal circumstances.
19. I have formed the view from considering the various reports and submissions that your actions appear to be out of character. The pulenu’u speaks well of you in his letter of support. He says that yours is a Christian family; this is the first time to his knowledge you have broken the law, and that you are a strong help in the care of your elderly mother, for over 10 years now, as her health has slowly deteriorated.
20. The prosecution submits that an appropriate starting point for your sentencing is 1 year in prison. Respectfully, I disagree. The authorities which were cited in support of that submission do not assist the Prosecution. The case of Police v Bragovits deals with a similar amount of narcotics. However, there was also methamphetamine involved in Bragovits (a zip lock bag of 0.02 grams), whereas in this case only a pipe was found in the defendant’s possession. But Mr Bragovits penalty can be distinguished on the basis that Mr Bragovits’ offending was in breach of his parole conditions.
21. On the other hand, there are authorities referred to by Ms Sio-Ofoia, particularly the schedule at paragraph 23 of her submissions. I consider these submissions persuasive.

Sentence

22. The appropriate sentence for this offending is a community-based sentence. You need to be held accountable for your out of character actions through a period of supervision, whilst at the same time being given the chance of rehabilitation. The defendant is sentenced to nine (9) months supervision. He is directed to undertake counselling for drugs and alcohol, he is also directed to undertake counselling for his grief, in particular, dealing with his new role as a sole parent and the responsibilities and challenges that he faces. I wish you well for your recovery Mr Euta. Everyone grieves in a different way. It will take some time to move ahead in your life and to make good decisions again.

You may stand down.

CHIEF JUSTICE