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State v Wati [2010] FJHC 187; HAC024.2008 (1 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 024 OF 2008

STATE

V

KARALAINI WATI

Mr. T. Qalinauci for the State
Mr. T. Tevere (as duty solicitor) for the Accused

Date of Hearing: 25 May 2010
Date of Sentence: 1 June 2010

SENTENCE

[1] On the 13th May 2010, the accused pleaded guilty in this Court to one charge of unlawful possession of illicit drugs contrary to section 5(a) of Illicit Drug Control Act 2004. On the 25th May 2010 she admitted the summary of facts and was convicted of the offence.

[2] The facts of this case are that a Police Officer saw the accused acting suspiciously at about 8.15am on the 27th March 2007 at Draiba village. Later he stopped a carrier travelling towards Sigatoka town and searched it. Sitting at the back was the accused together with a man. She had a big black Puma bag at her feet. The officer searched the bag and found small parcels wrapped in cloth which containing dried leaves. The leaves were sent to be analysed by a Government Analyst who certified that the leaves were cannabis sativa weighing 3,370 grams. The accused made frank admissions to the offence when interviewed under caution on the 28th March 2007.

[3] Counsel for the Accused tells me that the accused is 33 years old and is unemployed. She earns small change selling vegetables in the market. She used to be married to her co-accused in this case but now is estranged from him and lives in a de facto relationship with another man and his two children. That man is also unemployed. One of the de facto partner’s children is about to give birth and the accused asks for leniency so that she can assist with the new born.

[4] The accused ask for the Court’s leniency in recognizing her plea of guilty, her clear record, and her remorse; all of which she will receive credit for. In addition to that she asks that she be given credit for her former husband’s violence occasioned towards her, his degree of control and coercion over her and the threats made to her life if she did not assist in the transportation of drugs. Finally she pleads depression as evidenced by a report from the Nadi Women’s Crisis Centre which states that she has been sexually, physically, emotionally and verbally abused by her former husband.

[5] The maximum penalty for this offence is imprisonment for life or a fine of $1,000,000 or both; and this reflects the obvious severity for which the legislature had regard for this offence.

[6] In State v Kini Sulua (2008), Goundar J. passed a sentence of 8 years on a convict who too was travelling on board a public vehicle to Sigatoka with a bag of leaves. He was carrying 5203 grams of cannabis sativa.

[7] Counsel for the Accused seeks to rely on the precedent of State v Merewalesi Kuru (HAC 199 of 2008) when Goundar J. in sentencing for this same offence discharged the accused without conviction for possession of 484.7 grams of cannabis. In that case the accused had given herself up to the police whilst in possession of the drug in a desperate attempt to be imprisoned and be given refuge from an abusive husband. The Judge said he did not impute a moral blame on the accused.

[8] That case can be distinguished from the instant case in that the amount of drugs was much less, and that the accused on this case did not give herself up but was acting furtively in an attempt to sell the drugs. It seems however that she was a victim of abuse.

[9] This being a serious offence and in carrying a large amount of drug (3,370 grams) I take a starting point of 7 years imprisonment. For the plea of guilty and early co-operation, as well as for the clear record, I deduct 3 years from that. Family circumstances carry little weight in mitigation. She is 33 and fully aware of the implications of her criminal activities. Her claims of coercion do not ring true when placed in juxtaposition to the reasons given in her caution statement for committing the offence: that is to sell it to others "due to financial problem". There is no evidence before me that her "will was sapped" and that she acted solely on the compulsion of her husband. However, as an act of mercy and on the evidence before me of severe and long term domestic violence occasioned to the accused I do deduct a further 18 months meaning that she will serve a term of imprisonment for 2 years 6 months.

[10] I decline to stipulate a minimum term to be served.

[11] The drugs are to be destroyed within 14 days and a report to that effect made to this Court.

Paul K. Madigan
Judge

At Lautoka
1 June 2010