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Police v Uluilelatatuvale [2018] WSSC 59 (16 March 2018)

SUPREME COURT OF SAMOA
Police v Uluilelatatuvale [2018] WSSC 59

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TANIELU TIU ULUILELATATUVALE male of Luatuanuu.
Accused

Counsel:
L Sio for prosecution
T Patea for accused

Sentence: 16 March 2018

S E N T E N C E

The charges

1. The accused Tanielu Tiu appears for sentence on the following charges, namely:

(a) one count of possession of a utensil, namely, one glass pipe, contrary to s.13 (b) of the Narcotics Act 1967, which carries a maximum penalty of 7 years imprisonment;

(b) one count of importing prohibited goods, namely, one glass pipe, contrary to s.249 (1)(a) of the Customs Act 2014, which carries a maximum penalty of 6 years imprisonment; and
(c) one count of making a false declaration on an arrival card, contrary to s.242 (1)(a) of the Customs Act 2014, which carries a maximum penalty of 2 years imprisonment.

2. When this matter was first called for mention on Monday 30 January 2017, it was further adjourned to Monday 6 February 2017 for the prosecution to finalise their charges and for the accused to engage counsel. On 6 February 2017, the accused appeared with counsel and counsel sought an adjournment, without plea, which was granted, to Monday 13 February 2017 for him to obtain full instructions from the accused. On 13 February 2017, the accused entered a plea of not guilty to the charges. The matter was then further adjourned for hearing to the week commencing 24 July 2017. On 31 July 2017, the matter was further adjourned for hearing to 11 December 2017. On 11 December 2017, the matter was further adjourned for re-mention on 18 December 2017 on the basis that defence counsel was not ready to proceed and he indicated a change of plea. On 18 December 2017, the accused vacated his not guilty plea to the charges and entered a guilty plea.
3. So after about ten months after the accused had engaged counsel and pleaded not guilty to the charges against him and two hearing dates had been set and then vacated, the accused changed his initial not guilty plea to guilty. This is a much delayed guilty plea which was only indicated on the second hearing date.

The offending

4. According to the prosecution’s summary of facts confirmed by the accused, on 29 December 2016, the accused arrived at Faleolo Airport from Nadi, Fiji, with two bags. When he checked in at the customs counter, he handed in his arrival declaration form which shows he has nothing to declare. However, the customs officers on duty at the airport were suspicious of the accused and took him aside. When the customs officers questioned and searched the accused, they found a glass pipe inside one of his bags. The matter was reported to the police.
5. Subsequently, on 30 December 2016, the accused went to a shop at Vailele. On his way to a taxi to take him home, he gave a marijuana joint to a police officer who was off duty and left in the taxi. The police officer followed the taxi and contacted the Apia police. When the police arrived, they searched the accused and found another marijuana joint on him. So the accused was found to be in possession of two marijuana joints.

The Alcohol and Drugs Court (ADC)

6. After the accused changed his plea from not guilty to guilty, the Judge who was dealing with this matter referred the accused to the ADC clinician for screening. The clinician in her report found the accused to be evasive, has been using cannabis since the age of 16 years, and his used ‘ice’ on three previous occasions. He also told the clinician that he has no previous convictions when in fact he has one previous conviction in Samoa for assault in 1992 and three previous traffic convictions in New Zealand in 2009.
7. The accused was found by the ADC not to be eligible for that Court. He has therefore been referred to this Court for sentencing.

The accused

8. As shown from the pre-sentence report, the accused is 49 years old, has a wife and seven children. He finished school at Year 9 due to financial difficulties faced by his family. He then stayed at home doing domestic chores for his family before being employed as a truck driver for six years by one of the supermarkets in Apia. He then left for New Zealand where he worked as a truck driver for about ten years before moving with his family to Melbourne, Australia, where his wife and children are still living.
9. The accused’s father passed away four years ago and he was returning home in December 2016 to take care of his mother when he was apprehended by the police for this matter.
10. The accused, as earlier mentioned, has one previous conviction in 1992 for assault and three previous traffic convictions in New Zealand in 2009.
11. Given the accused’s previous convictions and the fact that he told the ADC clinician that he has been smoking marijuana since the age of 16 years, I do not accept the submission by defence counsel that the accused is a person of previous good character. This is notwithstanding the written testimonials from the pastor of the accused’s church and the pulenu’u of his village.

The aggravating features relating to the offending

12. The only aggravating feature relating to the possession and importation of a glass pipe in false declaration on his card made by the accused when he arrived at Faleolo airport 29 December 2016.

The aggravating features relating to the accused as offender

13. I do not consider the accused’s previous convictions as an aggravating feature relating to him as offender. This is because of the age of those convictions and they were for different types of offence.

The mitigating features relating to the accused as offender

14. I give very little credit to the accused’s delayed guilty plea. The accused also pleaded guilty on the second date set for trial after the presiding Judge had given a sentencing indication of a non-custodial sentence.

Discussion and result

15. Having considered all the relevant matters and looking at the totality of the offendings, I have decided to impose a non-custodial sentence.
16. The accused is convicted of all the charges and fined $250.00 against him payable by 12:30pm on Monday 19 March 2018 in default 4 months imprisonment.

CHIEF JUSTICE