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Police v Mikaele [2011] WSSC 101 (22 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

TELESIA AKENESE MIKAELE female of Vailele-uta and Lotopa
Accused

Counsel: G Patu and P Valoia for prosecution
Accused in person

Sentence: 22 September 2011

SENTENCE BY SAPOLU CJ

The charge

1. The accused appears for sentence on one charge of possession of narcotics to which she had pleaded not guilty. At trial she was found guilty of the charge.
   

The offending

2. In the early morning of 5 April 2011, a team of police officers armed with a search warrant went to Vailele-uta and searched the house of the accused and her husband for marijuana. This was as a result of information passed on to the police by a police informer that marijuana were being sold from the house of the accused and her husband.
   
3. In the presence of the accused and her husband, the police found two paper bags containing marijuana substances inside a clothes box and another paper bag containing one marijuana joint inside another clothes box. When the police showed those substances to the accused and her husband they admitted they were marijuana. The police then brought the accused and her husband together with the marijuana substances to the Apia police station. When the marijuana substances were sorted out, they were found to contain seventy nine marijuana joints, four small marijuana branches and dried marijuana leaves. The accused and her husband were accordingly charged with possession of narcotics.
   
4. The accused's husband pleaded guilty to the charge and has been sentenced to prison. The accused pleaded not guilty. At her trial, the police informer who tipped off the police testified that marijuana were being sold to consumers from the house of the accused and her husband. Apparently, the accused's husband is a repeated narcotic offender with previous convictions for possession of narcotics.
   
5. The accused was not represented by counsel. She elected not to give evidence and she also called no evidence. After the accused was found guilty of the charge and this matter was adjourned for a probation report, the accused told the probation service that the marijuana substances with which she and her husband had been charged all belonged to her husband. She had constantly argued with her husband and advised him to refrain from dealing in marijuana but he would not listen to her advice. She said significantly the same thing to the Court during her plea in mitigation.
   

The accused

6. The accused is a 27 year old female. She has a six year old daughter. She completed school at Year 13. She worked as a salesperson at a hotel but now works for a different employer. Favourable character testimonials have been provided for her by her family, the pastor of her church, and her present employer. The accused is also a first offender. The probation service has recommended a non-custodial community based sentence.
   

The accused's involvement in the offending

7. As the accused was not represented by counsel and she did not give evidence, the full extent of her involvement in this offending was not clear during the trial. Her involvement as it appeared from the evidence of the police witnesses was that marijuana substances were found in the clothes boxes inside the house of the accused and her husband. The evidence given by the police informer that marijuana were being sold from the house of the accused and her husband also did not specify the extent of the accused's involvement in this offending. The accused has told the Court and the probation service that it was her husband who was really responsible for the presence of marijuana substances in their house and there is nothing to contradict what the accused said. In my view, this is a significant mitigating factor.
   

The decision

8. The appropriate sentence to be imposed for an offence must depend primarily on facts of each case. In this case, given the limited extent of the accused's involvement in the offending, her personal circumstances as set out in the probation report, and the fact that she is a first offender, I have decided to impose a term of probation. A custodial sentence or monetary fine would not be appropriate. A suspended sentence would also not be as beneficial to the accused as a term of probation where she would be given advice and counselling.
   
9. The accused is accordingly sentenced to 18 months probation.
   

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia, for prosecution