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Police v McCarthy [2009] WSSC 42 (20 April 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

SOLOMONA McCARTHY,
male of Aleisa.
Accused

Counsels: Ms L. Sua-Mailo for the prosecution
Defendant unrepresented

Sentence: 20 April 2009

SENTENCE

This is the first of a number of marijuana cases for sentencing this afternoon and much of what I say for this matter also applies to the other drug cases awaiting sentence.

The defendant here is charged with cultivating on his family property at Aleisa some 39 marijuana plants ranging in height from 8 inches to 42 inches. The defendant at his trial tried to argue that his son-in-law who lives on the property cultivated the plants but I rejected this at trial and found the defendant too played a role in cultivating these marijuana plants. The son-in-law according to the file is now serving 2 years 9 months imprisonment sentence for his part in cultivating the plants.

As this court has stated many times before imprisonment penalties will be imposed for drug offending because it is the number one offence in our community and the court is trying to stamp it out. I am happy to hear from representatives of various village councils appearing on matters involving people of their village that they too are concerned about the problem and want to work with the courts and the authorities to try and eliminate it from our society. More needs to be done not only to deter offenders but also to educate our people and rehabilitate drug offenders so that people can understand the seriousness of their actions and why there is no future in drug offending. There are many other kinds of crops that can grow in this country and be used to "tausi ones aiga" and send the children to school.

The court has also said on many occasions it will be particularly harsh on people who grow and sell narcotics for commercial benefit or gain. Here the fact that there are 39 plants indicates that this is clearly a plantation for commercial purposes. As correctly pointed out in the prosecutions sentencing submissions, cultivation is the first step in the marijuana chain and as our Court of Appeal noted in Godinet v Police; [1995] WSC A 11: "the cultivation of cannabis is at the root of illicit drug offending". That case was a case involving 47 marijuana plants where the court upheld a penalty of three and a half (3½) years imprisonment for cultivation. A sentence in that region would be appropriate in my view for your case Solomona or even higher because you have previous convictions for marijuana offences.

However it would not in my view be justice to sentence you to a term higher to the one the court has sentenced your son-in-law especially considering that he was the one who pleaded guilty to the offence and admitted being the primary offender in this cultivation. I therefore do not propose Solomona to impose a higher penalty than that imposed on your son-in-law. Accordingly you will be convicted and sentenced to two (2) years and nine (9) months imprisonment. Any remand in custody time awaiting sentence should be deducted.

JUSTICE NELSON