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Police v Lesu [2024] WSSC 137 (17 December 2024)

IN THE SUPREME COURT OF SAMOA
Police v Lesu [2024] WSSC 137 (17 December 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

SIMAIKA LESU, male of Maninoa, Siumu and Vailele

Defendant

Counsel: J. Leung Wai for Prosecution

Sio-Ofoia for Accused

Date: 17 December 2024

SENTENCE OF TUATAGALOA J

The charge

1. The accused appear for sentence on one (1) charge of possession of loose marijuana leaves weighing 19.20grams pursuant to sections 7 and 18 of the Narcotics Act with a maximum 14 years’ imprisonment.

The offending

2. According to the Summary of Facts accepted by the accused, the accused returned to Samoa from American Samoa on 8 June 2024 on a Talofa Airways flight. Upon arrival, a custom’s officer became suspicious of the accused for he could smell marijuana on the accused. The accused had on him a backpack. The accused was escorted to a search bench for an examination of his belongings whereby it was located in his backpack a zip-lock plastic bag containing marijuana flower heads weighing 19.20grams. The accused was informed of the substances found and he acknowledged to be marijuana. This was also confirmed by a preliminary test carried out by the custom’s officer at the airport terminal. The police were notified and the accused was later charged with possession of narcotics namely, marijuana found in his backpack. However, the accused represented by counsel at mentions on 1 July 2024 entered a not guilty plea. The matter was set down for hearing in the week commencing 2 December 2024.
3. On the day of hearing, the accused through Counsel vacated his not guilty plea and entered a guilty plea on 4 December 2024.During this time the accused maintained his not guilty plea and was allowed to travel between the two-Samoa exporting local products to American Samoa.

The Accused

4. The accused is 44 years old of Vailele who exports or sells local products to American Samoa. He is a father of six (6) children.
5. His wife speaks highly of him in the Pre-Sentence Report (PSR) that he is a caring husband and father to their children, reliable, trustworthy and hardworking. The wife never referred to what her husband (the accused) does for a living. There are also written testimonials provided by the accused faifeau, his mother and family chief who all speak of the accused good character and positive traits.
6. The accused was penalised by the village of Vailele with a $20,000 monetary fine. The village pulenuu Togia Amiga confirmed the village penalty has been paid and that the accused also provided a cattle beast.^[1]
7. The accused is a first offender and is said by his counsel to be truly remorseful.

Aggravating features of the offending

8. The quantity of narcotic found is the first aggravating factor.
9. The narcotic was brought into the country breaching border security.
10. There is a hint of commercial intent with the quantity found and that it was brought in from American Samoa.

Mitigating factors

11. I take into account the village penalty paid by the accused. Section 8 Village Fono Act 1990 provides that where punishment has been imposed by a village on any person and that person is convicted by a Court of a crime or offence in respect of the same matter, the Court shall take into account in mitigation of sentence the punishment imposed by that village.
12. I also take into account that the accused is a first offender and his remorse conveyed to Probation in the pre-sentence report (PSR) and through his Counsel.
13. I place very little weight to the accused change of plea for the following reasons – (i) the change of plea was late and (ii) the accused had his backpack on him yet he denied the charges and only changed plea after four (4) months on the day of hearing.

Discussion

14. Possession of illegal substances in the form of marijuana and methamphetamine are very serious offending reflected in the maximum penalties it attracts. Marijuana is classified as a Class B narcotic that attracts a maximum penalty of 14 years while that of methamphetamine is a Class A narcotic with a life imprisonment. They both have a very serious impact on the community.
15. The courts policy in relation to drug offending is well known unless there are exceptional circumstances which would justify a non-custodial sentence. Drug offenders must expect stern measures from the courts to reflect intolerance by society towards drug abusers.
16. Counsel for the accused says that the sterner approach by the Court of custodial sentence was applicable where marijuana substances was the most common, at present methamphetamine is the more common and prevalence in society. Counsel submits that sterner approach of custodial sentence should be reserved for cases of repeat offenders, commercial circumstances and for possession of Class A narcotics. I agree but also of relevance is the quantity of narcotics whether it be marijuana or methamphetamine is a significant factor in considering the appropriate sentence.
17. Counsel says that the bringing of the illegal substances into the country was not intentional. I find this hard to believe. First of all, the accused in his PSR said that he suspected that the package given to him by an acquaintance in American Samoa contained illegal substances for this acquaintance had used illegal substances before. Secondly, the custom’s officer could smell the marijuana on the accused emanating from the backpack he had on him. If the custom’s officer could smell it, how come the accused could not smell it? Thirdly, the accused had his backpack on him he knew what the substances were when found in his backpack yet he denied the charges and only changed plea after four (4) months on the day of hearing. Fourthly, the accused sells local products to American Samoa, the business he is involved in requires frequent travel by him to American Samoa. His line of business is commercial. The huge risk of illegal substances entering the country through this line of business is realized in this present matter. I am also baffled as to how the accused backpack containing the marijuana substances was not detected at the exit border in American Samoa.
18. There are no exceptional circumstances in this case to justify a non-custodial sentence. Large quantities of narcotics are an indication to the court of commercial intent. At present, the quantity found on the accused conceded by Counsel for the accused as not an insignificant amount, the fact that it was brought into the country by the accused who sells or exports local products to American Samoa infers a commercial intent or purpose.
19. The protection of our borders from illegal activities and to send out a clear message that this country and its laws are not to be taken advantage must be treated seriously. The accused and other like-minded characters who breach our security borders by bringing in illegal substances offending our narcotic laws should realize and expect the unwelcome consequences of their offending.
20. There has been a consistency in the imposition of harsher penalties on people engaged in commercial distribution and financial gain. (see Police v Maposua [2010] WSSC 85). 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. Having regard to the high maximum penalty of 14 years’ imprisonment for possession of narcotics, the need for deterrence, and the aggravating features of this offending, a custodial sentence is an appropriate sentence in this case. This is in line with the judicial response to such offending. Per Slicer J in Police v Maposua [2010] WSSC 85 (28 July 2010)
    • The courts impose sentences within a statutory guide. It is for parliament to state its view of the seriousness of a crime in its fixing of statutory punishments. The courts are required to accept the statements in the legislation in the light of social values and circumstances. The courts are responsible for assessing penalties in individual cases and over time might set a guide to appropriate penalties. But larger social and political issues remain the province of parliament.
22. The Prosecution recommend the starting point of 1-2 years. I disagree. As mentioned before, this offending involves the bringing into the country narcotics which makes it a transnational offending. The bringing in of illegal substances breaching border security is a very serious matter.
23. I find appropriate the starting point of 3 years. I deduct 12 months for first offender and 6 months for the substantial village penalty paid and carried out by the accused, this leaves 13 months. I give a 10% discount of 2 months for the late change of plea. The end sentence is 11 months

Sentence

24. The accused, Simaika Lesu is convicted and sentenced to 11 months’ imprisonment, less any time in custody.
    

JUSTICE LEUTELE MATA TUATAGALOA

^[1] See Pre-Sentence Report dated 16^th December 2024 and Letter from the Pulenuu dated 10 December 2024.