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Police v Vai [2009] WSSC 9 (9 February 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MAILO BENJAMIN DAVID VAI, male of Vaiala
Defendant

Counsels: Ms R Titi for the prosecution
Ms R Papalii for the defendant

Sentence: 9 February 2009

SENTENCE

The defendant appears for sentence on a charge of possession of a glass pipe for the purpose of committing an offence against the Narcotics Act 1967 specifically section 13(b) thereof. The maximum penalty for such offending is by virtue of section 24 of the Act a fine not exceeding $200 or imprisonment for a term not exceeding 3 months or both. These are outdated penalties and perhaps should be revisited after 40 years of existence, perhaps the newly established Law Reform Commission can direct Parliaments mind to this.

The prosecution seek an imprisonment term arguing the prevalence of drug offending and the need to stamp out this curse in our society. I accept there is prevalence in general drug offending in this community and this usually leads to imprisonment sentences being imposed by the courts. But of the cases cited by the prosecution not all involved sentences of imprisonment. In Police v Chan Chui unreported decision dated 19 September 2008 the Court of Appeal of this country upheld a monetary fine of $150 for possession of a glass pipe. The court in that case also preserved the sentencing discretion of trial judges who regularly deal with drug cases because they are generally in the best position to assess the effect of sentencing on the public fabric and the community at large. In the words of the Court of Appeal "primary judges are better able to assess the appropriate judicial response to a complex problem over a period of time in the light of their understanding of its development." Apart from that case there is also the decision of this court in Police v Clayton Craigie (unreported) where a fine of $150 was also imposed for possession of a glass pipe.

The prosecution in sentencing submissions sought to distinguish those two cases because in both the defendants had served time in custody on remand a matter which was considered relevant to the ultimate sentence of the court. My review of the court file shows that in this case the defendant also spent time in custody awaiting remand albeit not as long a period. If therefore a point needs to be made to the defendant about the seriousness of his offending and incarceration as a punishment I am sure that has been served by his 3 days in custody on remand. Indeed that point should be abundantly clear to you Mr Vai by now by virtue of your entire experience in this matter which has occupied some three years of your life and which will occupy a little further time. The lesson being the simple one that is repeated time and time again in ads on television radio and in the newspapers - don't do drugs.

The prosecution have also referred to a number of cases such as Police v Masame 14 December 2007 and Police v Lafi [2008] WSSC 44 where penalties of imprisonment of 3-6 weeks were imposed. In reliance on that they seek a 4 week penalty. However, as pointed out by defence counsel, a review of those particular cases shows an important distinguishing factor from the present case. In those two cases the imprisonment penalty for possession of utensils under section 13 was in addition to penalties imposed for possession of large quantities of prohibited narcotics. And in Police v Lafi there was more than one utensil involved.

Applying the totality of sentencing principle the court imposed imprisonment sentences for all the offences because of the scale of the offending. Here the defendant appears for sentence on one single charge of possession of a pipe. There would be in my view no justification for equating his circumstances to the Masame and Lafi scenarios.

In my respectful opinion the appropriate manner with which to deal with the present offending is by way of a non-custodial penalty. At the outset I must decline defence counsels application to deal with this case by way of a discharge without conviction under section 104(1) of the Criminal Procedure Act 1972 because that would send the wrong message out to the community. And in any event the pre-conditions of section 104(1) have not on what has been placed before me been established. The question then is what penalty is appropriate?

I have read carefully the pre-sentence reports of the Probation Office on the defendant and I believe this case represents an opportunity to do something useful in the countries fight against drug use. Because the defendant is a well known personality and entertainer particularly to the younger generation, his experience can be used positively to inspire other young people to refrain from indulging in drug use and drug abuse. The defendant has expressed to the Probation Office a willingness to do this and the office have put together an anti-drug campaign to be fronted by Mr Vai. A similar anti-violence campaign fronted by another well known sporting personality has also been proposed by the Probation Office. I am of the view that both offenders would benefit from such an exercise and the Probation Office are to be commended for such innovative initiatives which seek to harvest positive results from negative behaviour.

Accordingly the defendant will be convicted and sentenced as follows:

A sentence of 12 months supervision pursuant to section 15 of the Community Justice Act 2007 with the special conditions under section 16 that he participate during the supervision period in the anti-drug campaign proposed by the Probation Office or some other similar campaign as designated and approved by the Probation Office. The defendant will also pay prosecution costs of $100 and probation costs of $100, sums payable forthwith in default one (1) month imprisonment for each unpaid $100.

I express the hope Mr Vai that your fronting of such a campaign produce some positive results and further that we do not see you back here on this type of offending again because if you do come back I do not need to explain to you the likely outcome.'

JUSTICE NELSON