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Police v Mikaele [2013] WSSC 78 (27 September 2013)

SUPREME COURT OF SAMOA

Police v Mikaele [2013] WSSC 78

Case name: Police v Mikaele

Citation: [2013] WSSC 78

Decision date: 27 September 2013
Parties:
POLICE (prosecution) and TAVITA MIKAELE male of Luatuanuu, Saleufi, Vaitele-uta and Saleimoa (accused)

Hearing date(s):

File number(s): S1551/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a for prosecution
Accused in person

Catchwords:
Sentence, possession of narcotics, marijuana, aggravating and mitigating features,

Words and phrases:
Legislation cited:
Narcotics Act 1967

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NO: S1551/13

BETWEEN

P O L I C E

Prosecution

A N D:

TAVITA MIKAELE male of Luatuanuu, Saleufi, Vaitele-uta and Saleimoa.

Accused

Counsel: L Su’a for prosecution

Accused in person

Sentence: 27 September 2013

S E N T E N C E

The charge

1. The accused appears for sentence on the charge of possession of narcotics, namely, marijuana substances, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment under s.18. To the charge the accused has pleaded guilty at the earliest opportunity.

The offending

2. The police were on their usual patrol on Saturday morning 3 August 2013 in front of the Farmer Joe supermarket at Fugalei. They were tipped off by an informer that the accused was selling marijuana in the area. So the police went looking for the accused. When they found the accused, they informed him of their suspicions and took him to a private place nearby. The accused was then searched and 24 marijuana joints were found on him. The police then escorted the accused to a taxi to take him to the Apia police station but the accused struggled and managed to break free and ran away. The police gave chase and finally caught him. The accused was then taken to the police station where he was cautioned and interviewed.

The accused

3. The accused is a 29 year old male of Luatuanuu and Fugalei. He has a wife and children who range in age from 2 to 12 years. He told the probation service when he was interviewed for the purpose of preparing a pre-sentence report on him that he was selling his agricultural produce at the Fugalei market when a stranger approached him with a packet filled with marijuana substances. He then gave the stranger $100 for the whole packet. I must say I do not believe what the accused told the probation service. His story is the usual story the Court hears from people found selling marijuana at the Fugalei area and are charged by the police. Such people never disclose the identities of the so called strangers. I accept the prosecution’s summary of facts that the accused was selling marijuana at the ‘Fugalei area’.
4. The accused has one previous conviction for assault in 2006 and another previous conviction for the same type of offence in 2012. This is his first conviction for a narcotic offence. He is therefore a first narcotic offender. But he cannot be treated as a person of previous good character because of his previous convictions for assault.

The aggravating and mitigating features

5. The aggravating features of this offending are the quantity of marijuana substances found in the accused’s possession and that he was in possession of these substances for a commercial purpose. The accused also did not co-operate with the police. As he was taken by the police to a taxi to take him to the police station, he struggled, broke free, and ran away. The police had to chase after him.
6. The only mitigating factor personal to the accused is his early plea of guilty to the charge. But I do not propose to give the full 1/3 discount for the accused’s guilty plea. The reason is that the accused was caught in the act and he had little option but to admit to the charge. I will, however, give the accused a 25% discount for his guilty plea.

The decision

7. Having regard to the need for deterrence and the aggravating features of the offending, I will take 12 months as the starting point for sentence. It must be pointed out that this is the sentence I would have imposed on the accused if there were no mitigating features personal to him. There is one such mitigating feature which is the accused’s early guilty plea. For that, I will deduct 25%. That reduces the starting point to 9 months.
8. The accused is convicted and sentenced to 9 months imprisonment. Any time the accused has already spent in custody is to be deducted from that sentence.
   

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia for prosecution