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Police v Auano [2017] WSSC 112 (28 August 2017)

SUPREME COURT OF SAMOA
Police v Auano [2017] WSSC 112

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SAENA AUANO male of Falelauniu-tai and Falealupo.
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 28 August 2017

S EN T E N C E

The charge

1. The accused Saena Auano of Falelauniu appears for sentence on one charge 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 charge, he pleaded guilty at the earliest opportunity.

The offending

2. On 30 May 2017, the police intelligence unit was conducting narcotics surveillance at the reserve area at Sogi where there have been recent reports of drug dealers selling marijuana. The police noticed the accused who was selling cans of soda drinks and chips in that area. At the same time, the accused was seen smoking what appeared to be a cigarette but in a way that was similar to smoking a marijuana joint. The police became suspicious and approached the accused and stopped him. When the police searched the accused, they found a marijuana joint in one of the pockets of his shorts.
3. As shown from the pre-sentence report, the accused told the probation service that he has been smoking marijuana for thirteen months when he was apprehended by the police for this offence. He also told the probation service that on the day of this offence, he had come to the flea market at Savalalo to assist his wife with selling cans of soda drinks and chips when someone sold him a marijuana joint for $5. This is the marijuana joint the police found on him and with which he has been charged for possession.

The Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs programme

4. After the accused had pleaded to the charge against him, he was referred to the Alcohol and Drugs Court (ADC) clinician for an assessment and to report back to this Court. The report from the clinician recommended that the accused be referred to attend the 7 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs programme. I accepted the recommendation.
5. The accused has attended and successfully completed the Toe Afua Se Taeao Fou programme and he has graduated with a certificate of due completion. The report from the programme facilitator shows that the accused has been a mature and active participant in the programme and has demonstrated insight into substances use and the significant effects it has had not only on himself but also on his family and his relationship with others. The accused has also not touched narcotics again since he was charged with this matter. He also seemed committed to the goals he has set for himself during the programme and the programme facilitator has expressed confidence that the accused will continue to utilise the strategies and skills learnt from the programme to support the current charges he has made to his lifestyle.

The accused

6. As shown from the pre-sentence report, the accused is 52 years old. He is married with six children ranging from 7 years to 22 years old. He had a low level of education having left school at Year 7. He is currently employed as a groundsman by a businessman in Apia earning $100 a week. His wife sells cans of soda drinks and chips. The accused was apprehended by the police for the present offence whilst he was helping out his wife selling soda drinks and chips.
7. The accused has several previous convictions in 1989, 1990, and 2003. He has not re-offended since 2003. None of his previous is drug-related. So this is his first drug offence. I will treat the accused as a first offender for present purposes.
8. The accused’s wife is in full support of her husband. She told the probation service that since her husband was referred to the Toe Afua Se Taeao Fou programme of the ADC, he is a changed man. He no longer consumes alcohol or marijuana.

The aggravating features

9. In relation to the present offending, there is no aggravating feature. Likewise, there is no aggravating feature relating to the accused as offender. His previous convictions are quire old and none of them was drug-related.

The mitigating features

10. The only mitigating feature relating to the accused’s offending is the small quantity of marijuana found on him. The mitigating features relating to the accused as offender are the fact that he has successfully completed the Toe Afua Se Taeao Fou programme of the ADC and he has pleaded guilty to the charge against him at the earliest opportunity. At age 52 years, he is also a first drug offender.

Discussion

11. The ADC was established for the purpose of curbing drug offending by reducing re-offending through its treatment and rehabilitation programmes. The accused has successfully completed the Toe Afua Se Taeao Fou programme which is a psycho-education programme of the ADC. I strongly recommend to the accused to make good use of the lessons he has learnt from that programme. It will not only improve his lifestyle but medical science has also revealed that drug abuse can affect a person’s mental health.
12. I must also warn the accused not to re-offend. I have decided not to impose a custodial sentence on him this time. But a repetition of this kind of misconduct would involve the risk of a custodial sentence. His future is in his hands.

Result

13. The accused is convicted and sentenced to 7 months supervision plus 25 hours of community service as directed by the probation service.

CHIEF JUSTICE