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Police v Givens [2011] WSSC 107 (4 July 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

MICHAEL RICHARD GIVENS
male of North Carolina, America and Faatoia.
Defendant

Counsels: Ms L Su'a-Mailo and F E Niumata for prosecution
Mr A Roma for defendant.

Sentence: 04 July 2011

SENTENCE

The summary of facts which the defendant has admitted through his counsel says: the defendant is a 19 year old European male of North Carolina, United States of America born and raised in the United States but due to drug problems there, led to him being sent by his parents to Coral Reef Academy in Samoa. I have some knowledge about this programme, it is a drug rehabilitation programme set up to help young persons with drug problems. It is a worthwhile institution and considering the increasing number of young men appearing in drug cases, it may be time for a similar institution to be set up in Samoa for our own young people with drug dependency issues.

The defendant graduated from the programme, returned to the United States but obviously his drug dependency was not cured as evidenced by the present offence. The defendant returned voluntarily to Samoa for two visits and on the second occasion in April this year, was apprehended on this matter.

He was then staying at Aggies Hotel in town and hid his narcotics in a plastic bag underneath a palm tree beside the Hotel pool. People saw him in possession of the plastic bag, reported it to the police who retrieved the bag and found it contained one small plastic bag with 20.5 grams of dried marijuana leaves. Had that been all you possessed Mr Givens, there may have been room for exercising some leniency to you but the police also searched the defendants hotel room and found 176 marijuana seeds therein wrapped up in another small plastic bag. Those were obviously not for personal consumption. Your intention must have been to either grow it or sell them to growers. This places you in the category of a dealer in illicit narcotics. In respect of whom the penalties are much greater pursuant to the sentencing policy of the court.

The courts approach summed up in previous sentencings must be made clear to not only residents of this country but also visitors that drug offending of this kind is not accepted or not treated lightly. The minute you stepped into this country you became subject to those laws in same way as any of us are subject to United States law once we set foot on United States soil. I draw no distinction between you and a local for the purposes of assessing a suitable start point for your penalty.

Considering all relevant factors to be taken into account 4 years imprisonment is an appropriate start point. But you are entitled to certain deductions. Firstly a one-third deduction for your guilty plea which is 16 months leaving a balance of 32 months. I agree with your counsel that your recent conviction for willful damage in the District Court is not relevant to this matter. But I cannot agree with him that you should be treated as a first offender because clearly you were sent to Samoa to attend a drug rehabilitation programme and although that falls short of a drug conviction, this is evidence of a troubled teenager with drug issues serious enough to be sent to a South Pacific country to attend a drug rehabilitation programme. That is a matter this court cannot overlook. However the court can also take into consideration the fact that you are a young man, you have a foreign background and language and having no family in this country, prison would be twice as hard for you than for local people. Because of those factors I will deduct half of your sentence.

For these offences you will be convicted and sentenced to 16 months imprisonment. Given your age the courts strong recommendation is you be allowed to serve this time at Olomanu Juvenile Facility at Mulifanua rather than the adult prison at Tafaigata.

A deportation order been raised by your counsel as an option for the court. But as explained to the prosecutor this morning, the court has no power under section 32 of the Immigration Act 2004 to order your deportation. Only the Minister of Immigration can do that and only if you have been convicted of an offence nominated by appropriate notice by the Minister under section 32(1)(c) or if you fall within the categories of section 31(1). Whether the Minister should exercise this power while a term of imprisonment is being served by a person pursuant to court sentence is not clear from the legislation and as these matters were not raised before me, it is not appropriate to express any view thereon. I will leave that matter for the lawyers to consider but you stand convicted and sentenced to 16 month imprisonment with the recommendation that it be served at the Olomanu Juvenile Facility.

............................
JUSTICE NELSON