Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Vili [2016] WSSC 132 (17 June 2016)

SUPREME COURT OF SAMOA
Police v Vili & Anor [2016] WSSC 132

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

IOFI TALATOFI FILIMAUA VILI male of Faleapuna and EPENESA IOFI, female of Faleapuna
Accused

Counsel:
F. Ioane for Prosecution
R. Papalii for both accused

Sentence: 17 June 2016

S E N T E N C E

The charge

1. Both accused appear for sentence on one joint charge of knowingly being in possession of tics, nam, namely cannabis substances, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 yimprisonment pursuant to s1to s18.
2. Both entered Not Guilty pleas through Counsel on 29 June 2015.
3. On 19 May 2016, the day of the trial, they were granted leave by the Court to change their pleas to this charge.
4. The accused Iofi Talatofi Filimau Vili is also being sentenced on one charge of possession of firearm, namely 22 single shot rifle butt number A980 without a valid certificate of registration pursuant to s.9 Arms Ordinance 1960. The maximum penalty for this offence is a fine not exceeding $5000.00 or two years imprisonment or both.
5. He entered a guilty plea on 29 June 2015. He is being sentenced on these two charges today, while the accused Mrs Iofi is being sentenced on one charge of possession of narcotics.

The offending

6. According to the Summary of facts accepted by the accused, on Saturday 23 March 2015 at around 6am, the Police with a search warrant went to search the accused home at Faleapuna.
7. The Police found 50 rolled marijuana cigarettes inside a plastic bottle in a cupboard and 200 rolled marijuana cigarettes inside a plastic bottle that was stashed together with a mosquito net with Mrs Iofi’s possessions.
8. During the same search, Police found an unlicensed 22 single shot rifle butt number A980 placed in the ceiling.

The accused

9. The accused are a married couple. Mr Iofi is 55 years old and Mrs Iofi is 49 years old. They have 5 children together, aged 24, 23, 20 and 17 years. The youngest one was adopted out. The accused live at Faleapuna with two children who will be leaving for New Zealand. The eldest son lives with the accused and works, and the eldest daughter lives with her husband in Europe. Their family depends on the plantation for their livelihood as well as remittances from Mr Iofi’s siblings who are overseas.
10. Mrs Iofi is a stay at home mother and wife. She told Probation that she got the marijuana from her friend to get money for her family as her husband Mr Iofi was ill and they were struggling financially.
11. Mrs Iofi admits that she intended to sell the marijuana.
12. There is a testimonial from the President of the Women’s Committee that Mrs Iofi is a honest, hardworking and loyal member of the Committee.
13. It says in the probation report about Mr Iofi that he does not drink alcohol or smoke. It also says he has high blood pressure and diabetes and this is confirmed by Dr Adams who in a report says that Mr Iofi is chronically ill with diabetes and high blood pressure and he is being monitored.
14. In relation to Mr Iofi, there are two favourable character testimonials from his Bishop and the village mayor. Both say he is a faithful supporter of village and church affairs.
15. The probation report says and defence Counsel confirms that Mr Iofi was given the firearm in 2012 by his father. He uses it to shoot wild pigs that destroy his plantation. He admits that he did not register the firearm because of financial constraints.
16. Both accused are first offenders.

The involvement of the accused Mr Iofi in the narcotics offending

17. It appears from what both accused told Probation, the involvement of Mr Iofi is that his wife, the other accused, approached him and told him about the marijuana she obtained from a friend. He was against his wife’s intention given that he is a paramount chief in their village and told her not to deal marijuana from their home. He says he stopped her from selling the marijuana but she did not listen. He was not aware that she continued to sell marijuana or that there was marijuana in their home until the Police search.
18. This is a significant mitigating factor for the accused Mr Iofi. His involvement was the knowledge he had of the marijuana, but he had spoken out against it by advising his wife to stop selling marijuana.

Aggravating features of the offending

Narcotics offence

19. The substantial quantity of marijuana cigarettes is the first aggravating factor in this case. Two hundred and forty (240) marijuana cigarettes is a substantial amount.
20. The second is that it was clearly intended for commercial sale for financial gain. As mentioned by CJ Sapolu in Police v Okesene [2012] WSSC 15 (10 April 2012), it is the suppliers of marijuana who are at the root of the problem now facing the Courts and the Police.
21. Mrs Iofi admits to having sold some marijuana already but the quantity is unknown She says that the marijuana was to sell as their family was struggling financially because Mr Iofi was ill. This is not a reason to resort to illegal activity such as selling marijuana. Many people in this country face the same financial constraints on a daily basis but do not engage in drug dealing, which is essentially what the accused was doing. Just because she is a wife and mother selling marijuana from the safety of her home, does not make her any different from the person selling marijuana on the streets. The reason for selling the marijuana, however seemingly legitimate, cannot justify this illegal behaviour.
22. The brunt of the narcotics offending falls on the accused Mrs Iofi, being the one who brought the marijuana into the home of the accused from her family. She instigated the offending and continued to sell marijuana even after her husband stopped her.

Firearm offence

23. As for the firearm offence by Mr Iofi, it is aggravating that there is the presence of an unregistered firearm in a family home. It is a dangerous weapon which can possibly lead to serious injury and even death.
24. The fact that it was hidden in the ceiling may mean one of two things, that it was put out of reach of other family members or that it was hidden from the authorities. In any event, I am not prepared to draw an inference either way. Suffice to say that an unregistered firearm is against the law, and firearms in general should be approached with extreme caution considering the potential harm.

Mitigating factors

25. Both accused appear for the first time in Court. This does indicate that they have been of good character prior to this offending.
26. I take into account the remorse of the accused conveyed to probation and through Defence Counsel.
27. The other mitigating factors personal to the accused are their guilty pleas, although not at the earliest opportunity, they will be given some credit for those. Mr Iofi will get the full benefit of an early guilty plea to the firearms charge.
28. For the accused Mr Iofi, I have noted that I find the extent of his involvement in the narcotics offending as a mitigating factor personal to him.

Discussion

Mr Iofi

29. Having considered the circumstances of this case and the limited extent of Mr Iofi’s involvement in the narcotics offending, the circumstances surrounding his possession of an unregistered firearm, as well as his personal circumstances as set out in the probation report, I have decided to impose a non custodial sentence.
30. Mr Iofi has developed health complications and is being closely monitored according to Dr Adams. So his medical condition is a factor which makes supervision or community work inappropriate. Given their financial constraints, a monetary fine is also inappropriate. A suspended sentence is the most appropriate sentence in all the circumstances.

Mrs Iofi

31. A consideration worth mentioning in this sentence is the children of the accused. Although they are grown, what happens to their parents has a huge impact on them. This family will inevitably experience the absence of one parent by way of this sentence today. The other parent is chronically ill. Unfortunately the lesson learnt today by these parents, is a harsh one, the consequences of which will inevitably be felt by their children.
32. Having regard to the high maximum penalty of 14 years imprisonment for possession of narcotics, the need for deterrence, and the aggravating features of her offending, a custodial sentence is an appropriate sentence. This is in line with the judicial response to such offending as referred to by Slicer J in Police v Maposua [2010] WSSC 85 (29 July 2010) in which he says that there has been a consistency in the imposition of harsher penalties on persons engaged in commercial distribution and financial gain. I am mindful that the objective is deterrence, not punishment for offences of the same kind committed by others.
33. 1 will take 3 years imprisonment as a starting point for sentence. I will deduct 6 months for her remorse which I believe is genuine at this late stage, her previous good character as in the character testimonials and other mitigating factors submitted by defence Counsel such as penalty paid to the village and her age. The Court will exercise leniency in this case for compassionate reasons. This family has a chronically ill father and the one remaining son will have to work and look after him in the absence of the Mrs Iofi. I deduct 4 months for this. Finally I will deduct 20% or 5 months for her guilty plea.

Sentence

34. The accused Mr Iofi is convicted of the offences of possession of narcotics and possession of unregistered firearm and ordered to appear for sentence in 12 months. Within that 12 months, he is not to reoffend, otherwise he will be sentenced on these offences and any other new ones.
35. The accused Mrs Iofi is convicted and sentenced to 21 months imprisonment for the possession of narcotics.
    

JUSTICE TUALA-WARREN