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Police v Tino [2017] WSSC 95 (4 July 2017)

SUPREME COURT OF SAMOA
Police v Tino [2017] WSSC 95

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MIKA LEOLI TINO male of Vailele and Leulumoega.
Accused

Counsel:
F O Tagaloa for prosecution
Accused in person

Sentence: 4 July 2017

S EN T E N C E

The charge

1. The accused appears for sentence on one charge of possession of narcotics, namely twenty marijuana seeds, contrary to s.6 (b) of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment. To the charge, the accused pleaded guilty at the earliest opportunity.

The offending

2. The prosecution’s summary of facts accepted by the accused shows that on 24 February 2012 at around 5:00pm in the afternoon, the police attended a call in relation to a different matter at Vailele and were looking for witnesses when they came across the accused in front of the Catholic church. One of the police officers saw what appeared to be a rolled cigarette on one of the accused’s ears. When the accused was asked about it, he replied it is marijuana joint.
3. The accused then pulled out a plastic bag, threw it on the ground, and ran off. The police were able to stop him. When the police examined the plastic bag, it was found to contain twenty marijuana seeds.

Alcohol and Drugs Court (ADC)

4. After the accused pleaded guilty to the charge against him, he was referred to the ADC clinician for screening and an assessment. The report from the ADC clinician recommended that the accused be referred back for further assessment. I accepted the clinician’s recommendation and referred the accused back to the clinician for a further assessment. The clinician then recommended that the accused be referred to the ADC for a determination hearing to see whether he is eligible for the treatment programmes of the ADC. In this connection, this Court had to give a sentencing indication for the Judge of the ADC as an accused liable to a sentence of more than 3 years imprisonment would not be eligible for the ADC programmes. I gave a sentencing indication of 7 months supervision with a special condition that the accused was to perform 20 hours of community service.
5. At the determination hearing before the ADC, it was found that he accused had grown up in the village of Leulumoega. He was later banished from Leulumoega for misbehavior. The accused then went and stayed with his maternal family at the village of Lotopuē, Aleipata, from which he was also banished for misbehavior and breaches of village regulations. The accused then came and stayed with a cousin at Vailele where the present offence was committed. The accused has also been banished from Vailele. None of the accused’s relatives want him back because of his misbehavior and attitude. As a result, the ADC decided not to accept the accused into its treatment programmes because he has no solid family environment to live and attend the ADC’s programmes.

The accused

6. As the pre-sentence report prepared by the probation service shows, the accused is 27 years old. He grew up under the care of his parents at Leulumoega. He attended school at Leulumoega up to Year 12 when he decided to leave school. He later obtained employment for two years. He was then banished from Leulumoega for beating up a fellow villager whilst intoxicated. He then went and lived with his maternal family at Lotpuē, Aleipata. He was again banished from Lotopuē for physically attacking his own cousin and for continuously disrespecting village rules. The accused then came and stayed with a cousin at Vailele. He has also been banished from Vailele.
7. The accused’s family at Lotopuē says that they have had enough of the accused’s misbehavior. He has anger problems and cannot control himself when it comes to alcohol. They do not want the accused back in their family.
8. The accused also told the probation service that he started consuming marijuana in 2015 due to peer pressure as it relieves him after a hard day’s work at his plantation. However, it appears from the report by the ADC clinician that at the time of this offending the accused was staying with a cousin at Vailele and unemployed.
9. The accused has one previous conviction in 2009 for causing actual bodily harm. This was for assaulting a fellow villager at Leulumoega.
10. It also appears from the report submitted by the ADC clinician when the accused was referred to her for screening and an assessment that she was told by the accused that he wants to remain in custody as he has been banished from all the villages of both his parents\. In other words, if the accused was released on bail, he has no where to live. However, when this matter was called for sentencing, the accused told the Court that if he is given a non-custodial sentence, he can live with his relatives at Nofoalii. Sentencing was then adjourned for the probation service to ascertain from the accused’s relatives at Nofoalii whether they are willing to take him into their family if given a non-custodial sentence.. The report from the accused’s relatives at Nofoalii is that they do not want the accused to come and stay with them.

Aggravating and mitigating features

11. On the material before the Court, there is no aggravating or mitigating feature in relation to the offending. There is also no aggravating feature in relation to the accused as offender. His previous conviction for causing actual bodily harm is for a different type of offence from the present offence and it is eight years old. On the other hand, the accused’s early guilty plea is a mitigating feature relating to him as offender.

Discussion

12. Even though I had given a sentencing indication of 7 months supervision with a special condition of 20 hours community service when the accused was to appear at the determination hearing before the ADC, the material now placed before this Court requires a different sentence. This is primarily because if the accused is given a sentence of supervision, he has no place to stay and attend to the conditions of his supervision. A custodial sentence therefore has to be imposed. But I note that the accused has been in custody since 27 February 2017.

Result

13. The accused is convicted and sentenced to 5 months imprisonment. The total time he has been remanded in custody is to be deducted from that sentence. The accused is advised to spend the remaining few weeks of his sentence enquiring about a place where he can stay when his sentence expires. He may request the police for assistance. He may also take this opportunity to apologise to one of his families so that they may take him back upon his release.

CHIEF JUSTICE