Police v Tita'e [2024] WSSC 30 (30 April 2024)

IN THE SUPREME COURT OF SAMOA
Police vs Tita’e & Ors [2024] WSSC 30 (30 April 2024)

Case name:	Police vs Tita’e & Ors
Citation:	[2024] WSSC 30
Decision date:	30 April 2024
Parties:	POLICE (Informant) and ATONIO PELOSI TITA’E, male of Fasitoo Uta and Afega, KOSE IOANE male of Satui Fasitoo Uta and Afega, AUKUSITINO PELOSI male of Satui Fasitoo Uta and Afega (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	SUPREME
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	Atonio, you are accordingly convicted and sentenced as follows less remand in custody: (a) charge # 1, possession of narcotics as the lead charge on a totality basis in charging document dated 24th January 2024, 3 years and 10 months’ imprisonment; (b) charge # 2 possession of seeds, 2 years 9 months imprisonment concurrent; (c) charges # 3 and # 4, possession of firearm and ammunition, 6 months’ imprisonment each charge concurrent; and (d) charge of possession of firearm without valid certificate of registration, convict and discharge. Kose, you are accordingly convicted and sentenced as follows less remand in custody: (a) charge # 1, possession of 97 marijuana plant in charging document dated 24th January 2024, 2 years and 9 months’ imprisonment; and (b) charge # 2, possession of 562 marijuana seeds, 15 months’ imprisonment, concurrent. Aukustino, you are convicted and sentenced 12 months supervision of the Probation Service and: (a) ordered to carryout 160 hours community work; and (b) attend an alcohol and drug rehabilitation course of no less than 6 weeks duration to be directed by the Probation Service. Should any of you return back to the court for similar offending, you can all expect to go back to prison. Find something legal to grow and sell and contribute positively to the community.
Representation:	Ms. F. Ioane for the Prosecution Ms. T. Leavai for the Accused
Catchwords:	5 charges of possession of narcotics; police raid.
Words and phrases:
Legislation cited:
Cases cited:	Police v Moa [2013] WSSC 24, Police v Faisauvale [2010] WSSC 83, Police v Robertson [2022] WSSC 24, Police v Seuva [2021] WSSC 69, Police v Christina Schuster, Police v Pritchard [2020] WSSC 19, Police v Stanley [2019] WSSC 45, Police v Suivai [2018] WSSC 12, Police v Stowers [2018] WSSC 45, Police v Siaki [2017] WSSC 75, Police v Fetalaiga [2016] WSSC 108, Police v Loto [2013] WSSC 22, Police v Papalii [2015] WSSC 66, Police v Vaipaipa [2015] WSSC 214, Police v Maposua [2010] WSSC 85.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:
ATONIO PELOSI TITA’E, male of Satui Fasitoo-Uta and Afega,
KOSE IOANE, male of Satui Fasitoo-Uta and Afega,
AUKUSITINO PELOSI, male of Satui Fasitoo-Uta and Afega.

Accused

Counsels: F. Ioane for Prosecution
Leota T Leavai for the Accused

Sentence: 30 April 2024

RESERVED SENTENCE

The Charges:

1. Atonio, you appear for sentencing on the following 5 charges:
   • (a) One charge of possession of narcotics, namely1,685 dried marijuana branches with leaves weighing 4956 grams; 451 marijuana cigarettes wrapped in pieces of tin foil weighing 361 grams; loose marijuana leaves weighing 8.7 grams and 84 marijuana cigarettes without leaves (stalks) (S1131/21);
   • (b) Possession of 4,431 marijuana seeds (S1135/21);
   • (c) Possession of firearm without permit, namely, 12-gauge shotgun (S1138/21);
   • (d) Possession of ammunition without permit, namely fourteen (14) 12-gauge live ammunition (S1139/21); and
   • (e) Possession of 12 gauge shot gun without valid certificate of registration (S1140/21).
2. Kose, you appear for sentencing on 2 charges in the charging document dated 19 July 2021:
   • (a) Cultivation of prohibited plant, namely 97 marijuana plants;
   • (b) Possession of 562 seeds of a prohibited plant, namely Sativa L (marijuana).
3. Aukustino, you appear for sentencing on 1 charge of cultivation of 3 marijuana plants. The plants were 26cm – 36cm in height.

The Offending:

4. According to the Prosecution Summary of Facts admitted by all of you, police had held a briefing early on the morning of 14 June 2021 about a raid of your property Atonio. Later that morning at approximately 7.20am, police were making their way to the back of the Satui Fasitoo-uta Road when a Nissan Note was seen leaving Atonio’s property. The Nissan Note was stopped. You Aukustino were the driver of the car. A search was carried out of the car and the 3 marijuana plants were found. You admitted the 3 plants belonged to you.
5. When Police then entered your property Atonio, the substantial amount of substances and items to which you have entered a guilty plea were found. The 12-gauge shot gun was also found in the house and slid on top of the roof.
6. A search was also conducted of your house on the property Kose. That search of your home found the substances to which you now appear for sentencing.

The Background of the Accused:

7. Atonio, you are now a 41 year old male farmer, married with 4 children. You were raised in Afega and completed school to year 8. You claim to have begun consuming illegal drugs in 2020.
8. Kose, you are now 42 years old, married with 3 children and are a planter. According to your PSR, you left school during year 11, due to misbehavior. When interviewed by the Probation Service, your sister states her shock at your involvement in this matter because you are not a marijuana user.
9. Aukustino, you are now 38 years old and are the father of 2 children. You completed school to year 8. You have never been formally employed and worked your whole life as a planter.
10. You all have positive character references. You are brothers and you are all first offenders. You Atonio and Kose claimed that the marijuana was for personal use though you intended the sale of some of the marijuana to make ends meet.
11. The village imposed a penalty which you have together paid as well as the refreshments served to the village meeting.

Aggravating Features of the Offending:

12. The aggravating features of your offending are as follows:
    • (a) Quantity of marijuana substances in the possession of Atonio and Kose. The quantities are significant;
    • (b) Atonio and Kose, the marijuana was for a commercial purpose;
    • (c) Atonio, your possession of the firearms together with the narcotics is an aggravating feature; and
    • (d) The prevalence of this offending in Samoa. Regrettably, a significant amount of marijuana comes from Fasitoo-uta, which tarnishes the good name of the village of Fasitoo.

Mitigating Factors as an Offender:

13. In terms of the mitigating factors personal to you, I accept the following:
    • (a) guilty plea, late as it was;
    • (b) remorse;
    • (c) prior good character; and
    • (d) Village penalty

Discussion:

14. When interviewed by the Probation Service, you Kose said that you and Atonio cultivate marijuana for personal use but that you intended to sell some of the marijuana “to make ends meet for your family.” This is completely false. The large amount of marijuana seized by police shows that you both were heavily involved in a large-scale commercial marijuana enterprise. As the Courts have made clear over many years in cases such as Police v Moa [2013] WSSC 24 in terms of dealers and sellers but applicable also generally to those involved in the commercial drug trade:
    • “The penalties on those who make a living out of selling drugs will be especially severe because they are at the heart of drug trafficking in this country. To dealers and sellers of marijuana, court says this: “find something else to do. There is no profit or happy ending in doing drugs or being involved in the trade...””
15. In Police v Faisauvale [2010] WSSC 83 (16 July 2010), Slicer J also stated in terms of firearms in the drug trade:
    • “The combination of commercial involvement in narcotics and the possession of firearms require a significant penalty.”
16. Although you were all arrested on the same Police raid, your culpabilities differ: first by the quantity of narcotics found in your possession; but second, your possession of a firearm and ammunition Atonio. Your culpability Atonio is substantially more serious than your two brothers. As your counsel states, the possession and cultivation of marijuana is a “real concern” and it is prevalent in Samoa. Marijuana is prevalent in Samoa because of people like you Atonio and Kose.
17. I set out below some sentencing authorities to assist with the establishment of an appropriate start point for sentence for each of you.

Case	Quantity	Start Point
Police v Robertson [2022] WSSC 24 (26 July 2022)	Cultivation of two marijuana plants.	12 months reduced to six for participation ADC prior to exit.
Police v Seuva [2021] WSSC 69 (12 July 2021).	Cultivation of 8 marijuana plants.	2 years.
Police v Christina Schuster (5 June 2020) (Unreported).	Possession of 189 marijuana seeds; 81 marijuana branches weighing 186.9 grams; 320 small plastic bags containing loose marijuana leaves weighing 1434.7 grams; loose marijuana leaves weighing 28.7 grams; 24 marijuana cigarettes securely wrapped in pieces of foil weighing at 117.8 grams; and one marijuana stem without leaves and roots.	4 years.
Police v Pritchard [2020] WSSC 19 (16 March 2020).	Possession of 19 marijuana cigarettes weighing 7.4 grams; 30 (marijuana) Sativa seeds; and Dried loose leaves of marijuana weighing 58.6 grams.	4 years.
Police v Stanley [2019] WSSC 45 (25 July 2019).	71 marijuana plants, not small and some well grown.	4 ½ years
Police v Suivai [2018] WSSC 12 (9 November 2018).	71 plants ranging from 4½ inches to 3 feet 3 inches in height and 3 marijuana cigarettes, commercial purpose.	Cultivation, 5 year start point.
Police v Stowers [2018] WSSC 45 (10 April 2018).	160 marijuana plants between 6 inches to 8 feet high, 867 marijuana branches weighing a total of 11.675 kilograms and between 3 to 11 inches long, 9,545 marijuana seeds, loose marijuana leaves weighing 21.4 kilograms, an unregistered air gun, and five unlawful ammunitions.	7 years
Police v Siaki [2017] WSSC 75 (23 March 2017)	Cultivation of 3 marijuana plants and possession of 4 plants, commercial purpose.	1 year
Police v Fetalaiga [2016] WSSC 108 (5 July 2016).	Possession of 245 rolled cigarettes of dried marijuana leaves; 30 small dried branches marijuana leaves estimated to yield 7 marijuana cigarettes; and 108 marijuana seeds.	3 ½ years.
Police v Loto [2013] WSSC 22 (21 May 2013)	One marijuana plant, not for commercial purpose.	10 months.
Police v Papalii [2015] WSSC 66 (2 July 2015)	Eighteen marijuana joints, commercial purpose.	2 years.
Police v Vaipaipa [2015] WSSC 214 (3 February 2015).	Possession of narcotics namely, forty (40) branches of marijuana.	3 years.
Police v Maposua [2010] WSSC 85 (28 July 2010).	“They recovered 2,398 marijuana seeds, 32 marijuana stalks, 3 marijuana plants with a total weight of 2,728 grams, loose leaves of the substance and a smoking implement. They also found a .32 revolver with 17 rounds of ammunition....” Per Slicer J.	4 years end sentence.

18. Atonio, I begin with your sentencing. Prosecution seeks a 5 year sentence start point. There is no question your case is more serious than Police v Christina Schuster adopting a 4 year sentence start point. The 3 year sentence start point sought by your counsel is out of the question in light of these authorities. You were involved in a largescale commercial marijuana enterprise and possessed a firearm. The question is whether the 5 year sentence start point sought by prosecution is open to me and appropriate. Police v Stowers and the authorities I have referred to and been referred to suggest that in fact a higher start point of 6 years is more appropriate. However, having given the authorities careful consideration, I view a 5 ½ year start point open to me on the most favourable view for you. Accordingly, I will adopt a 5 ½ year sentence start point on a totality basis. From that start point, I will deduct six (6) months for the village penalty imposed and for your remorse express through the Probation Service; six months (6) for your prior good character and from the balance, eight (8) months for your guilty plea, late as it was leaving an end sentence of three (3) years and ten (10) months imprisonment.
19. Kose, you were found to be cultivating 97 marijuana plants and in possession of 562 marijuana seeds. You did so for a commercial purpose. Your counsel seeks a start point of two (2) years and six (6) months imprisonment. Prosecution seeks an imprisonment start point of 4 years. Again, in light of Police v Stanley and Police v Suivai, the question is whether this start point is open to me and appropriate. You cultivated a larger quantity of marijuana and possessed a large number of seeds than both these cases. Although a higher start point might also be warranted given the authorities, the start point I will adopt is 4 years and 3 months imprisonment. From that start point, I will deduct six (6) months for the village penalty imposed and for your remorse, 6 months for prior good character and from the balance, 6 months for your guilty plea late as it was. This leaves an end sentence on a totality basis of 2 years and 9 months imprisonment.
20. I now turn finally to you Aukustino. You appear for sentence for the cultivation of 3 marijuana plants. Although given your brothers’ extensive involvement in the drug trade, that you might also be involved with them in the drug trade cannot be ruled out. However, you were caught with 3 marijuana plants and will be sentenced as a user. I hope however that from what you have seen today with the sentences imposed on your two brothers, you will have nothing more to do with drugs.
21. Prosecution seeks a sentence start point of 6 months imprisonment. Your counsel seeks a non-custodial sentence, however, no similar authorities were provided upon which to base this submission. It would be helpful for counsel when making these submissions to provide authorities to which the Court can refer. The authorities clearly show that a custodial sentence is imposed and indeed, generally higher than six months. Given the facts in your case and that these were in the back of your car rather than planted, I will accept the six-month start point. From that, I will deduct 1 month for the village penalty, 1 month for your prior good character and remorse and 1 month for your guilty plea, late as it was leaving an end sentence of 3 months imprisonment.
22. I note from the Court file however that you have been remanded in custody for some 6 weeks or more. Any such remand would ordinarily be deducted from your sentence. As a first offender and bearing in mind your lengthy remand in custody and the submissions of your counsel, I have decided to instead extend leniency and focus on your rehabilitation. The sentence imposed will therefore be a community-based sentence. Do not waste this opportunity.

Result:

23. Atonio, you are accordingly convicted and sentenced as follows less remand in custody:
    • (a) charge # 1, possession of narcotics as the lead charge on a totality basis in charging document dated 24^th January 2024, 3 years and 10 months imprisonment;
    • (b) charge # 2 possession of seeds, 2 years 9 months imprisonment concurrent;
    • (c) charges # 3 and # 4, possession of firearm and ammunition, 6 months’ imprisonment each charge concurrent; and
    • (d) charge of possession of firearm without valid certificate of registration, convict and discharge.
24. Kose, you are accordingly convicted and sentenced as follows less remand in custody:
    • (a) charge # 1, possession of 97 marijuana plant in charging document dated 24^th January 2024, 2 years and 9 months imprisonment; and
    • (b) charge # 2, possession of 562 marijuana seeds, 15 months’ imprisonment, concurrent.
25. Aukustino, you are convicted and sentenced 12 months supervision of the Probation Service and:
    • (a) ordered to carryout 160 hours community work; and
    • (b) attend an alcohol and drug rehabilitation course of no less than 6 weeks duration to be directed by the Probation Service.
26. Should any of you return back to the court for similar offending, you can all expect to go back to prison. Find something legal to grow and sell and contribute positively to the community.
    

JUSTICE CLARKE