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State v Hong [2012] FJMC 115; Criminal Case 738.2012 (4 June 2012)

IN THE RESIDENT MAGISTRATE’S COURT
OF FIJI ISLANDS AT SUVA

Criminal Case No; 738/2012

STATE

V

MATHEW HONG

Prosecution : Cpl Reddy.
Accused : In person.

SENTENCE

1. The Accused in this case had been charged in the Magistrate’s Court under Section 5(a) of Illicit Drugs Control Act No 09 of 2004, for the possession of an illicit drug namely, Cannabis Sativa.
   
2. According to the charge, the quantity was 1.8 grams.
   
3. In view of the Criminal Procedure Decree 2009 and the decision of His Lordhsip Justice Goundar in State v Ilatia Wakeham HAC 001/2010, the Magistrates’ Court had the jurisdiction to hear and determine case under the Illicit Drugs Control Act No 09 of 2004.
   
4. You Mathew Hong are therefore, here today to be sentenced following the admission of ‘guilt’ on your own accord and free will in this Court on 24.05.2012, for committing the above.
   
5. According to the Summary of Facts tendered by the Prosecution, which was read over and explained to you in your chosen language, on the 14.11.2011 at around 10.14 pm PC4100 Waisale Senikacika and another police officer had been on mobile patrol when they spotted you at Daya place in Vatuwaqa. You were moving around in a suspicious manner. When the officers approached, you threw something on the ground.
   
6. It was not difficult for the officers to trace seven bullets of Cannabis from the ground. Inside these bullets there were dried leaves of Cannabis. You had been escorted to Vatuwaqa Police post and interviewed under caution. The allegation was admitted by you.
   

The dried leaves found in your possession had been identified as Cannabis Sativa by the Government Analyst.

7. The aforesaid Summary of Facts was admitted by you on your own free will.
   
8. According to Section 5 (a) of the Illicit Drugs Control Act 2004 "any person who without lawful authority acquires, supplies, possesses, produces, manufactures, cultivates, uses, or administers an illicit drug commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or imprisonment for life or both."
   Section 2 of the Illicit Drugs Control Act 2004 interprets "illicit drugs" as any drug listed in Schedule I.
   
9. In Yavala v State [2011] FJHC 485; HAA021.2011 (31 August 2011) Hon. Justice Madigan held,
   

‘A Court is determining an appropriate sentence for possession of illicit drugs must with a balancing cing exercise; first what is the amount of drugs seized and secondly what are the circumstances of possession. Obviously there will be a huge rence in sentencing between 10 grammes of marijuana for perr personal use and 8,000 grammes secreted in a vehicle on the way to market. More often than not the larger the seizure the more it will be part of a sophisticated operation for commercial supply’.

10. Winter J in Bavesi v The State [2004] FJHC 93; HAA0027.2004 (14 April 2004) categorized the guidelines for the cases of illicit drugs,
    

‘ In line with another New Zealand decision R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA, Blanchard, Anderson and Robertson JJ). I now return to the issue of categorization of these offences. This type of offending can be divided into categories with the ultimate concern being the offenders degree of involvement in the drug supply process. The 3 broad categories might be:

Category 1 – The growing of a small number of cannabis plants for personal use by an offender or possession of small amount of cannabis coupled with "technical" supply of the drug to others on a non-commercial basis. First offender a short prison term, perhaps served in the community. Sentencing point 1 to 2 years.

Category 2 – Small scale cultivation of cannabis plants or possession for a commercial purpose with the object of deriving profit, circumstantial evidence of sale even on small scale commercial basis. The starting point for sentencing should generally be between 2 to 4 years. However, where sales are limited and infrequent and lowest starting point might be justified.

Category 3 – Reserved for the most serious classes of offending involving large scale commercial growing or possession of large amounts of drug usually with a considerable degree of sophistication, large numbers of sales, circumstantial or direct evidence of commercial involvement the starting point would generally be 5 to 6 years.

11. In your caution interview it was stated that you were engaged in selling these drugs. Thus you will be placed under 'Category 2' for sentencing purposes.
    
12. It was further held in Bavesi case 'There is no logical reason why possession of cannabis for the purposes of supply should be treated any more leniently than offences involving actual sale or trafficking. If the intention is to make money out of supply the inevitable consequence is lengthy terms of imprisonment'.
    
13. In R v Aramah [1982] 76 CR.APP.R 190 it was said that supplying a number of small sellers – "wholesaling" – comes to the top of the bracket, "small scale" suppliers could expect 2 to 3 years imprisonment. At the other end is the retailer of a small amount to a consumer.
    
14. It appears that you have chosen night hours to carry out the business. At the time of arrest, you were moving around in an interior road in Vatuwwaqa. These types of mobile sellers always give difficult tasks to law enforcing authorities as they cannot easily locate them. These circumstances will undoubtedly aggravate the nature of the offence.
    
15. In Mitigation you informed Court that you are 29 years of age; first offender; single; sole breadwinner for the mother and his sister; pleaded guilty at the first available opportunity; and promised not to re-offend.
    
16. I start with 2 years to determine your sentence. It is increased by 1 year for the aggravating factors.
    
17. You should be given full credit for the early plea. 1 year will be deducted and your sentence stands at 2 years now.
    
18. Another six months deduced to reflect your personal circumstances.
    
19. Your final term is 1 ½ years imprisonment.
    
20. Sentencing and Penalties Decree 2009 provides statutory provisions to suspend an imprisonment term which is below 24 months.
    
21. You strongly insisted on a non custodial sentence by promising that this will be your first and final offence. The Court is mindful on the adverse repercussions of exposing a young first offender to a cluster of hardcore criminals. Purpose of rehabilitation will not serve every time by committing the offenders in to prison.
    
22. 'Suspended sentence' is an alternative to the imprisonment. Tempt to commit an illegal activity can be permanently terminated from someone's mind, by placing a strict condition on him that 'you will be committed to prison if you do so'. In other words 'there will be an activation of the sentence for the offence you committed prior to this'.
    
23. In light of the facts mentioned above, I decide to suspend your sentence. This will be your opportunity to reform as a law abiding citizen.
    
24. Hence I sentence you 1 ½ years imprisonment and suspend the same for two years. Further you will pay a fine of $200/. In default 20 day's imprisonment. If you commit any crime and if found guilty by a Court, whilst serving the suspended sentence period of 24 months, you will be imprisoned for a term of 1 ½ years.
    
25. Twenty eight (28) days to appeal for either party.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate

04th June2012