Meth smoker discharged without conviction [1]
Monday, December 10, 2018 - 20:04. Updated on Monday, December 10, 2018 - 20:58.
Maika Maile (38) who pleaded guilty to possession of illicit drugs, namely methamphetamine, was discharged without conviction subject to condition that he does not commit an offence for two-years.
Hon Mr Justice Laki Niu in his sentencing on November 26 at the Supreme Court, said one of the reasons relevant was that the amount of methamphetamine found on the accused “was so infinitesimal, 0.52 of one gram, that it was not enough for smoking or use by the accused.”
"He was not a dealer or trafficker. He is rather a victim of the drug dealers and traffickers (who make the money out of persons like the accused) who have fallen for them. With a further chance given to the accused, he may save himself, by committing himself not to use the substance again."
Search warrant
The court heard on March 13 this year, a search warrant was issued by a Magistrate to search for stolen goods, some 17 pieces of machinery and equipment and items valued at $10,350 pa'anga that was believed to have been hidden at the residence, or land and vehicles of one of ‘Aisea Langi and others at Hala-’o-vave (Kolomotu'a). None of the stolen items listed in the search were found at the house or in the vehicles. “A list of the items was attached. All items were big and could not be hidden in the trouser pocket of anyone,” stated Justice Niu.
When Police arrived, 'Aisea was at work but some of his workers were at the home. One, who was searched against his consent, was found with bits of cannabis wrapped with a cigarette paper in his trousers pocket.
However, when 'Aisea returned with three of his workers, including the accused, Police searched them too and found in the accused's trousers pocket a small plastic bag with bits of methamphetamine weighing 0.52 grams.
The accused readily admitted that he had purchased and smoked what had been in the small plastic bag, and pleaded guilty when charged before the judge.
“He says that one small plastic bag has only enough drug for one use. It costs $50,” said the judge.
Convictions
The judge said the accused had two previous convictions at the Magistrate's Court in 1999, for theft for which he was fined $100 or six-months imprisonment, and the other in 2001 for house breaking and theft, which he was sentenced concurrently for 18 and nine-months of which nine-months was to be served and nine months to be suspended, when he was 20-years old.
The probation officer said that the accused's cousin said that he had suffered when he was in prison in 2000 and had now changed to a better situation and was still progressing. He said that the accused seemed responsible and hard working to provide for himself and for his two sons, whom he looks after during weekends and holidays. He was separated from his wife in 2016. He recommended that a suspended imprisonment sentence be imposed and that the accused be required to serve 100 hours of community service and to attend drug and alcohol awareness courses, and to be on probation supervision during the period of suspension.
Ms L. Fakatou was Crown counsel.
“The Crown's submissions agree with that recommendation and that based on principles for suspension in Mo'unga v Rex the accused deserves a suspended sentence. She said that the accused is likely to take the opportunity in such sentence to rehabilitate himself, and also because the accused cooperated with the authorities,” Justice Niu said.
Discharge
The judge then said of the considerations, including the accused's imprisonment in 2000, when he was only 20-years-old for a property offence of housebreaking and theft.
"That was not an appropriate sentence for a young offender, to spend nine-months imprisonment in prison together with other hardened and experienced criminals, who would have taught him how to commit crimes."
“Secondly, the accused has maintained an offence free life since he came out of prison in 2002. That is some 16-years.”
He said under the Rehabilitation of Offenders Act, a person who has maintained a criminal conviction free life for more than seven-years may be eligible to be granted, with the consent of Cabinet, a certificate such that he is deemed to have no previous convictions. So that he would have been entitled to apply for such a certificate before he committed this present offence.
“Now with his present offence, he would have to wait for another seven-years free of criminal conviction. In the meantime he would have no right to a passport to travel or apply for visa overseas.”
Mr Justice Niu said that thirdly he believed that the finding of the drug in his trouser pocket by the police in the search of his person may be said to be unlawful. “Because such search is required to be by warrant issued by the court unless the police officer doing the search was satisfied on reasonable grounds that the accused had drugs in his pocket.”
Mr Justice Niu said that while it is true that the police had found cannabis wrapped in the trousers pocket of another person at the house that “it may be claimed that because of that finding, there was reasonable grounds for believing that there would be drugs in the trouser pocket of accused as well. But the finding of the cannabis would have been unlawful because there were no grounds upon which police was satisfied that there was drug in that person's trouser pocket. And the police could not have ben satisfied, that is ,sure that there were drugs in the accused's trouser pocket . All that the police and would have had was a suspicion and that is not enough to search a person without a warrant.”
Fourthly, Mr Justice Niu said “if the accused is to serve community service he has to work those hours on the Saturdays for several months and would disrupt the family life he must have with the two children in the weekends.”
“Fifthly, if a fine imposed, the accused would be at difficulty to pay it due to the uncertainty of the means of his income and would also affect his maintenance of his two children and lastly, the amount of methamphetamine found on the accused was so infinitesimal, as mentioned.”
“Considering all those matters, and the probation report, the submissions of both counsel, I consider that in the circumstances of this case, a discharge without conviction under s.204 of the Criminal Offences Act is appropriate but with a condition that the accused is not to commit any further offence for a period of two years from today,” said Justice Niu.
Mr V. Moale represented the accused.
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See also:
https://touchbase.org.au/alcohol-and-drugs/meth [2] There is no such thing as a safe level of drug use. Substance use carries risk. It’s important to be careful when taking any form of drug, especially those that have been manufactured illegally.
https://drug.addictionblog.org/meth-overdose-how-much-amount-of-meth-to-od/ [3] A lethal dose of methamphetamine varies depending on characteristics of the drug and the user. In fact, each person has a different sensitivity to a specific amount of methamphetamine due to personal tolerance to meth. In this way, toxic levels are different for each individual.
- Oral administration = ~ 150mg a day
- Injection = ~100mg or higher
- Smoking and snorting methamphetamine = ~50 mg or higher
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