Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Papalii [2014] WSSC 40 (22 August 2014)

SUPREME COURT OF SAMOA
Police v Papalii [2014] WSSC 40

Case name: Police v Papalii, Ifopo Mika and Papalii

Citation: [2014] WSSC 40

Decision date: 22 Aug 2014

Parties: Police and Fauea Papalii, Ioane Ifopo Mika and Alofa Papalii

Hearing date(s): 23 June 2014

File number(s): 407/14

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order: (Sentence)

Representation:
Rexona Titi-Reti for prosecution
Unrepresented

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

A N D:

FAUEA SALALAU PAPALII male of Safa’ato’a Lefaga,
IOANE IFOPO MIKA male of Fuailoloo Mulifanua and Safa’atoa Lefaga,
ALOFA PAPALII female of Fusi Safata and Safa’atoa Lefaga.
Defendants

Counsel: Rexona Titi-Reti for prosecution
Unrepresented

Sentence: 22 August 2014

S E N T E N C E

Police Search

1. Early in the morning on Friday 17/1/2014 the police raided and searched the home and land of the defendants Fauea and Alofa at Safa'ato'a Lefaga. Defendant Ioane was living with them at the time. Police search came about as a result of informations received by the police in relation to the activities concerning prohibited plants at the home of the defendants Fauea and Alofa.
2. During the police search they found on the wooden kitchen floor of the kitchen hut a black bag which contained:
   • (i) 127 ½ marijuana joints
   • (ii) 2 branches of marijuana
   • (iii) 9 marijuana bullets.

Underneath the wooden floor the police found another bag containing:

• (i) 62 marijuana joints
• (ii) 220 marijuana seeds

3. Defendant Ioane managed to escape from the scene. Police moved their search to nearby land and found three sheets and bags containing 1,235 branches of marijuana with loose leaves. These were estimated to produce 182,377 marijuana joints.
4. A little further inland where the police were directed to a small plantation operated by the defendants, sixty three marijuana plants ranging from 3 inches to 6 feet and two inches in height were uprooted and taken to the Apia police together with the two defendants Fauea and Alofa.

Offences

5. The defendants Fauea and Ioane have been jointly charged with 2 offences namely:
   • (i) cultivation of the 63 prohibited plants
   • (ii) possession of 1,235 marijuana branches and loose leaves
6. All three defendants are jointly charged with possession of:
   • (i) two marijuana branches (estimated to produce 3 marijuana joints).
   • (ii) 9 marijuana bullets (estimated to produce 40 marijuana joints.
   • (iii) 127 ½ marijuana cigarettes.
   • (iv) 220 seeds of marijuana.
7. Each offence of cultivation, possession of narcotics and seeds carry a maximum penalty of 14 years imprisonment.

The defendants

8. The defendant Ioane is 28 years old from Mulifanua village, a cousin of the defendant Fauea with whom he was staying at the time of the offending. He separated from his wife in 2010 and two of his 3 children are looked after by his family at Mulifanua. His third child is with his wife at Vailele.
9. Ioane told the probation service that all the marijuana plants and substances belonged to his cousin Fauea whom he was living with at the time. At the first mention of these charges, Ioane pleaded guilty to all except the possession of seeds information. On the day of the trial he pleaded guilty to the possession of seeds charge.
10. The defendants Fauea and Alofa aged 37 and 31 respectively are husband and wife with 4 children ranging from 8 years to 1 year old. Both lived and worked the land at Safa'ato'a, Lefaga where the prohibited plants and narcotics substances were discovered.
11. As a result of their offending they have been banished from Safa'ato'a village. Both Fauea and Alofa told the probation service that they were both ignorant of the existence of the narcotics substances at their house and of the marijuana plants on their land until the police came and raided their home and land. They rested the blame on the accused Ioane.
12. Both defendants pleaded not guilty to all of the charges. Fauea changed his plea on the morning of the trial. Alofa changed her plea after the fourth witness for the police testified. That witness told the court that she accompanied the defendant Alofa to the land where the marijuana trees were planted. The same witness also told the court, she saw Alofa selling a marijuana joint to a youth for $5.

Submissions by the Prosecution

13. Prosecution is seeking a custodial sentence for each of the three defendants. A starting point of 9 years imprisonment is being sought against the defendants Ioane and Fauea on each charge of cultivation and possession. A six year starting point is sought against the defendant Alofa.
14. The unusually high custodial sentences sought is substantially due to the large quantities of marijuana substances and plants found which is a clear unequivocal signal that all three were engaged in a substantial illegal commercial enterprise, which, as evidenced by the discovery of seeds, was planned for expansion.
15. Prevalence in drug offending, the need for deterrence and the increase by Parliament of the maximum penalty from 7 to 14 years imprisonment, the prosecution submits, justifies a lengthy custodial sentence for each defendant. Cultivation of drugs, the prosecution says, is at the heart of the drug problem in this country.

Discussion

16. All three defendants have pleaded for mercy and they are remorseful. They have all accepted responsibility for their offending.
17. The cultivation of cannabis in such a relatively large quantity is at the root of illicit drug offending. Obviously the motive was for a profit, it was for a commercial purpose. All three defendants planned and intended to make a living out of prohibited plants.
18. It was well planned. Large quantities of harvested marijuana substances were found at the homestead and were estimated to fetch about 18,300 joints; there were marijuana plants over 6ft high going down to 3" which indicated that the supply will continue to flow, and there were seeds to generate new plants.
19. Possession of prohibited drug is a serious offence, to cultivate and possess in large quantities is much more serious and attracts a corresponding severe penalty due to the purpose of the cultivation and of the offending.
20. For the cultivation of the 63 cannabis plants and the possession of 1,235 branches of marijuana (estimated to produce 18,377 marijuana joints) both defendants Fauea and Ioane are equally responsible and should bear the same penalty. The same reasoning applies to the possession of 220 seeds.
21. Attention of the court has been drawn to sentences imposed in the past for similar offending most of which I find very useful especially in the cultivation of narcotics cases.
22. The court acknowledges that the defendants have been severely dealt with by the village through the penalty of banishment which means they will have to look somewhere else to live upon release from prison.
23. For the offences of cultivation and of possession of 1,235 branches of marijuana branches and leaves, court will impose a custodial sentence with a starting to commence at 5 years and 6 months for each offence. For their guilty pleas I will deduct 12 months and for the banishment order imposed by the village I deduct another 12 months. Each defendant Fauea and Ioane is sentenced to 3 ½ years imprisonment for each offence and to be served concurrently. Any time spent in prison shall be deducted from the 3 ½ years sentence.
24. For the offence of possession of 220 seeds they are both, sentenced to 6 month imprisonment to be served concurrently with the 3 ½ years sentence.
25. As for the defendant Alofa the prosecution seeks a custodial sentence starting at 6 years. Possession charges against Alofa relate to the 220 marijuana seeds and other substances found by the police at the kitchen which include:
    • (i) 127 ½ marijuana cigarettes
    • (ii) 2 branches marijuana (estimated to produce 3 marijuana joints)
    • (iii) 9 marijuana bullets (estimated to produce 40 marijuana joints).

In total, Alofa's offending involves being in possession of about 100 joints and the 220 seeds.

26. Alofa according to the pre-sentence report completed her education after her second year at Secondary School due to financial constraints and to assist in caring for her grandparents. So when she married the defendant Fauea in 2004 her working life was limited to domestic chores when she moved to Safa'ato'a with her husband and worked the land where these offences were committed.
27. Alofa and her 4 children depended on the husband for support. She is described in the probation report as quiet and humble.
28. In my view it is contrary to logic and good sense for the prosecution to seek 6 years custodial sentence against Alofa when the custodial sentence they sought against the other two defendants was 9 years given the substantial difference in the quantities of joints involved (about 100 joints involving Alofa and about 182,000 in the case of Fauea and Ioane).
29. Other than the quantities of drugs, there are other grounds which justify the imposition of a non-custodial sentence against Alofa. She was involved simply because her husband was involved; she was living with the husband at the husband's family and village and the marijuana were stored and kept at the husband's family house where they were both living with their children.
30. As a result of the banishment order imposed by the village, the defendant Alofa as the primary care giver and provider for the children will be burdened with the task of finding alternative accommodation and providing for the children. That in itself is a deterrent aspect of the sentence, she will suffer.
31. For both offences of possession the defendant Alofa is convicted and placed on Probation for 18 months. She will perform 50 hours community work and attend any programme as directed by the probation service.
32. Defendant you were first represented by counsel on this matter. That counsel entered a plea of guilty on your behalf, but when you came up for sentence, counsel sought leave of the court to withdraw because you refused to accept his advice to own up and plead guilty to the offence of indecent assault. You sought leave to change plea which was granted. You were found guilty.
33. You told the probation service that you refused to accept the recommendation by your counsel because you are innocent of the charge for which you now appear for sentence. The matter came into a hearing before me and I found you guilty again you told the probation service that you are innocent. That is despite the fact that you, your wife and your older brother went and apologised to the parents of the victim for what you did to her. The parents of the victim obviously did not accept your apology.
34. The victim in this matter was 19 years of age at the time of the offending and you are 43 years of age. Your insistence and your innocence obviously tells me that you are not remorseful of what you did. I take in your favor the testimonials which are before me as well as the fact that you have been banished from your family land at Leauvaa as a result of your offending. Your obvious lack of remorse in this matter by insisting on your innocence will not aggravate the offending but it obviously will not go in your favor in mitigation.
35. The probation service correctly tells me that you are not suitable for community service. I accept the recommendation by the prosecution for imprisonment sentence and you are accordingly sentenced to 12 months imprisonment.

JUSTICE VAAI