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Police v Tovio [2002] WSSC 23 (27 August 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE

Informant
AND:

FAALILI TOVIO,

female of Faleatiu and Vailele
Defendant

Counsel: Mr R. Schuster for prosecution
Mr M. Leung Wai for the defendant

Hearing: 14 August 2002
Sentence: 27 August 2002

SENTENCING REMARKS OF JUSTICE COOPER

Faalili, you appear for sentence now having pleaded guilty to a charge of possession of narcotics.

The facts are that on the 22^nd of February this year, you were at Fagalii Airport in a company of another person, Uatisone.

You were found in possession of an umu box, which was intended to be sent to American Samoa. This umu box was half full of marijuana and further marijuana was found in your handbag. You admitted to possession of both lots of marijuana. You have stated to the probation officer that this umu box of marijuana belonged to another person, and counsel has submitted that your plea of guilty is based on you being a secondary party and that you were involved to a much lesser extent than Uatisone. Your counsel says that your plea of guilty was entered because you knew that the marijuana was in the umu box and to a limited degree, you had joint possession with Uatisone.

I have read the probation report plus the supplementary probation report prepared today and the testimonial from your matai. I have heard very comprehensive and helpful submissions from your counsel, Mr Leung Wai.

The Supreme Court has on numerous occasions said that, firm sentences are required for narcotics offending. This is to deter this sort of offending in Samoa. Ordinarily personal circumstances carry very little weight in sentencing for narcotics offences. Ordinarily a person found with the amount of marijuana that you had in your possession could expect a sentence of imprisonment in the order of 18 months to 2 years. But in your case, there are exceptional circumstances which enables me to stand back from imposing a sentence of imprisonment and to consider other alternatives. There is a combination of factors and I list them as follows:-

First of all you have pleaded guilty and accepted the responsibility for your actions. When that happens the court gives a defendant a credit for that by reducing the sentence. Secondly, you have no previous criminal convictions. Thirdly I accept your counsel’s submission that your role was as a secondary party and that you are less criminally involved than your co-offender. I accept the submission made by your counsel that this marijuana did not belong to you. Fourthly I have particular regard to your personal circumstances.

You have four children, ages 3 years, 2 years, 1 year and 1 month. Your husband left you earlier this year when you were pregnant with your youngest child. He has left you without any means of support and with four young children to bring up.

I note that you are still breast-feeding your youngest baby. To send you to prison would have a serious adverse effect on all of your children, the youngest in particular. Having regard to all of the circumstances, I now sentence you to probation for a term of twelve months on a special condition, that you undertake 200 hours community service and remedial programmes as directed by the probation officer. And I state that this case should not be seen as a precedent, it is based entirely on the particular exceptional combination of circumstances that exists in your case. Any other offenders coming before the course in possession of this amount of marijuana can certainly expect a prison sentence.

JUSTICE COOPER