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Police v K.S [2015] WSYC 8 (18 December 2015)

THE YOUTH COURT OF SAMOA
Police v K.S [2015] WSYC 8

IN THE YOUTH COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

K.S, male of Vailele and Levili
Young Offender

Counsel:
Brigitta Lo Tam-Fa’afita for the Prosecution
Young Offender Unrepresented

Decision: 18 December 2015

SENTENCE BY DCJ TUALA-WARREN

The charge:

1. K.S, you are being sentenced today on one charge of possession of narcotics laid under section 7 of Narcotics Act 1967. The maximum penalty for this offence is a term of imprisonment not exceeding 14 years.( section 18 Narcotics Act 1967)
2. You pleaded guilty to this charge on 12 November 2015 in the Youth Court as you are 16 years old.

Facts:

3. You accepted the Summary of Facts as follows.
4. On 19 October 2015, at about 4pm, you got into a taxi and went to Vini Fou to a house known to Police to be involved in the sale of cannabis. The Police happened to be in the area and when you exited the house, a police officer approached you and asked what you were holding. You were asked to hand over what you were holding and it was 5 cigarettes containing marijuana, also known as cannabis leaves. Cannabis is classified as a Class B narcotic. The 5 cigarettes weigh 1.2 grams.

Pre-Sentence Report:

5. A pre-sentence meeting was ordered and took place on 30 November 2015. You, your paternal uncle and paternal aunty (your father’s siblings) attended.
6. The report says that you live with your paternal uncle and paternal aunty at Vailele as your biological parents live in American Samoa. You came to Upolu to live with your grandparents who have both passed.
7. You were in Year 10 at Leifiifi College when you offended and as a result you left school. The Report says that you intend to go back to school in 2016.
8. Your faifeau says that you are part of the youth group at church and that you are reliable and honest. He together with your uncle and aunty say that you are obedient and this offending has shocked them. They have taken active steps to address your offending and as a result, you now live at Levili with Reverend Benjamin Alfred of Assembly of God in an effort to provide you with the guidance you need.
9. The Report recommends a sentence of community work with conditions to return to school, abide by a curfew and attend counselling programmes with your faifeau.

Prosecution Submissions:

10. Prosecution submits that the Courts have been very stern in its approach to sentencing of offenders where they knowingly possess a prohibited substance such as marijuana. Possession of narcotics normally invites an imprisonment sentence to achieve deterrence unless exceptional circumstances exist in a particular case.
11. Prosecution therefore submits that a conviction and a term of imprisonment is appropriate here to achieve deterrence, given that you planned and then deliberately went to get the marijuana cigarettes, including the quantity of marijuana found on you, being 5 marijuana cigarettes.

Legal Principles:

12. I take into account in sentencing you the Young Offenders Act 2007 (YOA) and the Convention on the Rights of the Child (CRC).

Young Offenders Act 2007 (YOA) & Convention on the Rights of the Child(CRC):

13. My treatment of you is guided by YOA.
14. The pre-sentence meeting under ss11-13 YOA when a young person acknowledges committing an offence, is to discuss the circumstances of offending and seek the views of those in attendance. The outcome of the meeting shall have regard to, inter alia, the rehabilitation of the young person (s 13(f))
15. Sentencing options available to the Youth Court are contained in sections 15 and 16 of the YOA. Section 15 gives the Court the discretion to order that the young offender abide by obligations under any pre-sentence agreement within 6 months. At the end of the six months depending on the satisfaction of the agreement, the Court may then discharge the young person without conviction.
16. However under section 15(3) YOA, a conviction and sentence may also be imposed by the Court, if the Court is of the opinion that that is what is required in the interests of justice. Sentences pursuant to section 16 are then available to the Court. These include conviction and discharge, ordered to come up for sentence, a fine, community work, supervision, or imprisonment if there is no reasonable alternative.
17. Imprisonment as a last resort is consistent with the principles of CRC which requires the Court to take into account in its sentencing, the child's age and the desirability of promoting the child's reintegration and the child assuming a constructive role in society.

The Young Offender:

18. I do not find any mitigating features of your offending.
19. Your offending was planned. You took a taxi to obtain the marijuana cigarettes. It is not an insignificant quantity of marijuana which you had in your possession.
20. This is your first time in Court. That fact is neutral given your age.
21. The following are mitigating factors personal to you.
22. Your age of 16 years is a significant mitigating factor.
23. You intend to go back to school in 2016. The Court encourages education as a pathway to a good future.
24. You have taken active steps to change your life and went to live with your faifeau who counsels you. This guidance and support is what is needed in your life, given you do not live with your parents.
25. Your guilty plea to the charge at the earliest opportunity is to your credit as it indicates that you take responsibility for your actions.

Sentencing:

26. Probation has recommended a sentence of community work under s 15 YOA. Prosecution recommends a conviction and sentence of imprisonment.
27. I accept that a conviction is warranted in this case. It is a serious offence which carries a very high penalty. It is in the interests of justice that those who commit narcotics offences are held accountable. A conviction will hold you accountable for your actions and act as a deterrent.
28. I do not find however, that a sentence of imprisonment is appropriate for you at this point. There is a reasonable alternative to imprisonment. That alternative will mean that you remain in the community, attend school and be guided by your faifeau. However if you commit any further narcotics offences, the sentence will most certainly be one of imprisonment.
29. You are convicted and sentenced under section 16(e) YOA to two (2) years supervision with special conditions;
    1. Attend school;
    2. Abide by a curfew of 7pm-7am;
    3. Live at Vailele with your aunty and uncle;
    4. Attend counseling with your faifeau;
    5. Attend Youth Development Programmes with Samoa Victim Support Group; and
    6. Write a paper as to why marijuana is illegal and the harmful effects of drugs on a person.
30. This sentence of supervision will be judicially monitored by the Court on 3 March 2016 at 12 noon. I will be interested to read your paper on that day.
    

.....................................................
Judge Tafaoimalo Leilani Tuala-Warren

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