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State v Rarasea [2012] FJMC 28; Criminal Case 02.2012 (1 March 2012)

IN THE MAGISTRATE'S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 2/12

The State

v

Joseva Rarasea

For the State: PC Yasin
For the Accused: Ms. Vaniqi

SENTENCE

Joseva Rarasea you have been convicted as charged on your guilty plea of the offence of Unlawful Cultivation of Illicit Drugs contrary to section 5 of the Illicit Drugs Act.

The facts are that on the 10th of January 2012 and Wainimakawe farm, Natumua Village in Kadavu, without lawful authority you cultivated 3 kilograms of cannabis sativa, an illicit drug. You were arrested for planting 4 cannabis sativa plants weighing 3 kilograms and with an estimated street value of $20, 000.00. On your arrest you were then transported to Suva.

The summary of the facts has been outlined to you and you have admitted the facts voluntarily. I find that your guilty plea is unequivocal therefore I convict you as charged.

You are a first offender and counsel has offered the plea in mitigation on your behalf.

You are 35 years of age, married with 4 young children and three are attending primary school. You were educated up to tertiary level and you obtained a Certificate in Building. You are the sole breadwinner and your whole family looks to you for support. You cite the fact that you have been in Suva since your initial arrest therefore there has been no one to buy your children's stationery and other supplies for the New Year. You also advise the Court that your children have been unable to attend school due to your absence.

You currently have about 4000 to 5000 dalo plants and yaqona plants growing in your farm. You explain that the marijuana plants were for your personal consumption and you state that you had no intention of selling the marijuana. You submit that you have never in your life been remanded for any reason and the period that you spent in remand has made you more determined to stay out of trouble.

Counsel submits the case of Meli Bavesi –v- The State (unreported) Crim. Appeal No. HAA 27 of 2004. In this case, Justice Winter categorised offenders under section 5 of the Illicit Drugs Act into 3 basic categories with category 1 being the cultivation of small amounts of cannabis coupled with technical supply to others on a non commercial basis. For such offenders the tariff ranges from 1 -2 years. Your counsel submits that you fall into category 1 and that an appropriate sentence for you would be a suspended term. An alternative sentence could also include an order for "island detention" and community work.

You submit that your turaga ni koro is an appropriate person to be appointed as your supervisor for your community work.

The State has also filed sentencing submissions and they have offered the authority of Bavesi (cited above) and contend that you fit into category 2 with the tariff of 2 to 4 years. The State submits that the amount of drugs that you cultivated could not all possibly be for personal consumption. The State submits that the most appropriate sentence for you is a custodial sentence.

In sentencing you the Court notes the context of this offence. In the Christmas and New Year period between December 2011 and January 2012 the island of Kadavu was in the new on an almost daily basis with news of raids being conducted by the police on suspected drug plantations. To date there have been four lots of arrests from different areas of the island with varying amounts of seized illicit drugs. You have been arrested as part of this ongoing operation.

After considering the context of the offending in this case, it is my duty to consider your particular circumstances and the options for sentencing that are open to me. Counsel has suggested a suspended term or an order for community work or an application of section 30 of the Sentencing and Penalties Decree.

Under section 4 (2) of the Sentencing and Penalties Decree, the Court is required to consider the following: -

"4 (2) In sentencing offenders a court must have regard to—

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

There have been submissions for a community work order to be imposed on you pursuant to section 3 of the Community Work Act 1994. You have submitted that your turaga ni koro is the person who will supervise your sentence.

Counsel submits that an order pursuant to section 30 of the Sentencing and Penalties Decree is also applicable.

The relevant section provides as follows:

"Regulations to give effect to schemes for sentencing orders

30.—(1) Regulations made under this Decree may empower courts to impose sentencing orders against offenders which provide for—

(a) arrangements for the treatment of offenders for drug or alcohol addiction or dependency;

(b) combined custody and drug or alcohol treatment orders;

(c) home detention orders; or

(d) any other appropriate order which may meet the objectives of sentencing stated in section 4."

There is a requirement under the Community Work Act for an offender to give his consent to be subject to the community work order and for the offender to be supervised by a probation officer, duly appointed pursuant to section 7 of the Act. The Court is not satisfied that such probation officers are available in the island of Kadavu therefore the efficacy of such a sentence cannot be guaranteed. There is no evidence before this Court that your turaga ni koro has been appointed under the relevant section and this means that any supervision by him will not be in accordance with the specific provisions of the Community Work Act.

The sentencing option under section 30 of the Sentencing and Penalties Decree is not available as these sentencing options are governed by Regulations. As at the date of this sentence no such regulations have been introduced therefore there is really no scope for this Court to apply section 30.

The police seized 4 plants from your farm with a total weight of 3 kilograms. According to the State this would have a street value of $20, 000. In your mitigation submissions you state that this was for your own personal consumption.

The Court is not convinced that this large amount was for your own personal use. Taking the classification of The State –v- Bavesi (suppra) I find that you fall into category 2 and I also find on the circumstantial evidence provided that these drugs were meant for commercial purposes.

A sentence of imprisonment is the only viable option in this case. You are a first offender and you have pleaded guilty at an early stage of these proceedings. These are mitigating factors in your favour. The drugs have also been seized and are currently in police custody.

The aggravating factors are the quantity of drugs seized from your farm.

The maximum sentence for such offences is a maximum sentence of life imprisonment and/or a maximum fine of $1, 000, 000 (one million dollars).

As a category 2 offender I take a starting point of 2 years imprisonment. For the large quantity of illicit drugs seized from you I add 6 months to your sentence and for the mitigating factors I reduce 10 months from the sentence.

You are a first offender with a previous unblemished character therefore I will deduct a further 2 months from your sentence. You were remanded for 3 days and this will also be deducted from your final sentence.

Joseva Rarasea your final sentence is 17 months 28 days.

This sentence is less than 2 years therefore it may be suspended if I find that it is just in the circumstances to do so. This authority is conferred by section 26 of the Sentencing and Penalties Decree

The Court notes that you are a young first offender with a young family to support. You have pleaded guilty at the earliest opportunity and the illicit drugs have been seized and are now in police custody.

Notwithstanding the above factors the Court notes that this is a serious offence as the penalties are very serious. The offence is also prevalent and in an island community such as Kadavu, the effects are going to be very serious. There is no doubt that the huge publicity that these arrests and sensational seizures generated would have portrayed a negative image of the island of Kadavu.

In the circumstances of this case the Court finds that it is just to impose a partially suspended sentence on you. This would enable you to serve a period in custody where you will be subject to the various rehabilitation programs that are available for such offenders and also to serve the remainder of your sentence in the community in order to make amends to your community

Joseva Rarasea I sentence you to 17 months and 28 days imprisonment and you will serve 2 months and 28 days in custody with the balance of 15 months to be suspended for 2 years.

The clerk will explain to you the meaning and effect of your suspended sentence as well as the consequences of any reoffending.

I further make an order that if there are any drugs remaining in police custody, I hereby direct that such drugs are to be destroyed and a Certificate confirming the same is to be forwarded to the Court for the record.

28 days to appeal

U. Ratuvili
Chief Magistrate

1st March 2012