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Police v Aliva [2017] WSSC 115 (29 August 2017)

SUPREME COURT OF SAMOA
Police v Aliva [2017] WSSC 115

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

AFELE ALIVA male of Falefa and Sataoa, Safata.
Accused

Counsel:
O Tagaloa for prosecution
Accused in person

Sentence: 29 August 2017

S EN T E N C E

The charges

1. The accused who has been exited from the Alcohol and Drugs Court now appears for sentence on two charges of possession of narcotics, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment pursuant to s.18. To the charges, he pleaded guilty at the earliest opportunity.

The offending

2. According to the prosecution’s summary of facts accepted by the accused, on 11 November 2016 around 10pm at night, the police received a phone call that some people were bothering customers at McDonalds Restaurant. The police attended to the call and apprehended the people who were bothering the customers. One of these people was the accused who tried to escape. The police then brought him in a police vehicle to the police station. Whilst in the police vehicle, a police officer saw the accused threw away a red packet of cigarettes. The police vehicle stopped for the police to retrieve this red packet. It was found to contain five marijuana joints. The accused was charged with possession of those marijuana joints.

The Alcohol and Drugs Court (ADC)

3. After the accused pleaded guilty to the charges against him, he was referred to the ADC clinician for an assessment and to report back to this Court. The report by the clinician recommended that the accused be referred back to her for a further assessment. I granted the recommendation and referred the accused back to the clinician for a further assessment. Following this further assessment, the accused was referred to a determination hearing before Tuatagaloa J of the ADC on 17 January 2017. The accused was formally accepted into the ADC at that determination hearing and he started to participate in the treatment programmes of the ADC. These are intensive programmes which take twelve weeks.
4. On 29 June 2017 whilst the accused was still a participant in the ADC intensive treatment programmes, he re-offended and was charged by the police with possession of narcotics, namely, ten marijuana joints. He was exited from the ADC on 18 July 2017 due to his re-offending. He pleaded guilty to the new charge against him when it was called for mention but when he appeared for sentence yesterday, 28 August 2017, he denied the crucial part of the prosecution’s summary of facts. That matter has been further adjourned but I will now have to sentence the accused on the charge for which he had been admitted into the ADC on 17 January 2017.

The accused

5. The pre-sentence report shows that the accused is a 39 year old single male. He was initially raised by his grandparents but when his grandfather passed away, he lived with his parents. He finished school at Form 4. He later found employment as a fisherman on a long liner fishing alia until he was charged with the present offences.
6. The pre-sentence report also shows that at the beginning of the accused’s programmes with the ADC, he was complying with the conditions of his programmes. However, towards the end of his programmes there was a change in his behaviour. When he comes to attend the ADC programmes he would not return home for four days. He was reported to be roaming the streets of Apia begging for money. People of his village suspect that the accused has mental problems which has caused a change in his behaviour. Perhaps, the accused’s drugs dependency has affected his brain as manifested by his change of behaviour.
7. The accused has previous convictions for drug offending in 2007, 2008, 2011, 2013, and now in 2017. For his offending in 2008, he was placed under supervision for 18 months. But he re-offended in 2009 for theft and was again placed under supervision for 15 months. However, the terms of supervision do not appear to have had any good impact on the accused because he continued to re-offend.

The aggravating and mitigating factors

8. The only aggravating factor relating to the offending is the quantity of marijuana joints found in the accused’s possession. In relation to the accused as offender, his previous convictions, especially for similar offences, is an aggravating factor.
9. The only mitigating factor relating to the accused as offender is his early guilty plea to the charges.

Discussion

10. Given the aggravating factor relating to the offending, I will take 6 months as the starting point for sentence. I will then add on 2 months for the previous convictions which is the aggravating factor relating to the accused as offender. That increases the starting point to 8 months. I will then deduct 2 months for the early guilty plea. That decreases the starting point to 6 months. The end sentence is therefore 6 months.

Result

11. The accused is convicted and sentenced to 6 months imprisonment on each of the two charges against him. Both sentences to be concurrent. Time already spent by the accused in custody is to be deducted from that sentence.
12. I would strongly recommend to the prison authorities to refer the accused to a psychiatrist for psychiatric examination and possible treatment given the suspicions by people of his village that the accused might have mental problems because of his change of behaviour.

CHIEF JUSTICE