Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Wise [2012] FJMC 58; Criminal Case 312.2011 (24 April 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF NAVUA

Criminal Case No: - 312/2011

STATE

V

FRANK WISE

For Prosecution : Sgt. Lenaitasi
For Accused : - In person

SENTENCE

1. You FRANK WISE were charged by this court, for the offence of "Found in Possession of Illicit Drug", which is punishable under Section 5 (a) of Illicit drug Act No 9 of 2004, and carries a punishment up to life imprisonment or fine not exceeding $ 100,000 or both.
   
When this case was first taken you pleaded not guilty for the said offence. But when this case was mentioned on 18 April 2012 to fix a new hearing date you informed you are prepared to plead guilty.

3. You pleaded guilty to the charge and informed that there was no threat or inducement for change of plea.
   
4. I am satisfied that you fully comprehended legal effect of your plea and your plea was voluntary and free from influence. Wherefore I convict you for the said offence of "found in possession of illicit drugs" contrary to section 5 (a) of illicit drug Act No 9 of 2004.
   
5. Summary of facts, as admitted by you before the court, revealed that you committed this offence on the 15th day of Dec 2010 at Navua town, Navua in the Central Division. The police searched you and found 8.8 grams of Indian Hemp in your possession. The report from the Koroniva research center confirmed those dried leaves were Indian hemp weighing 8.8 grams.
   
6. In pursuant to Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree I now proceed to consider an appropriate starting point for this offence.
   
7. The tariff for the offence of Possession of Illicit Drugs is 2 – 4 years imprisonment. (State v Tukai Taura HAC 146 of 2008).
   
8. In Mesulame Koroi & 4 Others v State His Lordship Justice Madigan after carefully considering the cases under Illicit Drugs Act introduced appropriate starting point as follows.
   
   • (i) Possession of up to 100 grams or cultivation of no more than 5 plants, non custodial sentences at the discretion of the court.
     
   • (ii) Possession of 100 – 1000 grams and cultivation of 5 – 50 plants; custodial sentences in the range of one year to six years.
     
   • (iii) Possession of more than 1000 grams and cultivation of more than 50 plants, custodial sentences of six years or more.
     
   • (iv) For possession of very large quantities (5 kg or more) custodial sentences in the range of ten to fifteen years.
     
9. After considering the above guide lines and summary of facts in your case I take 6 months as your starting point.
   

Aggravating factors

12. The summary of facts indicated that when police caught you were trying to give something to another Fijian man. But there is no evidence to prove that was the drugs in your possession . Therefore In this case I do not find any aggravating factors.
    

Mitigating Factors.

13. I take following grounds as mitigating factors in this case.
    
    1. 35 years old
    2. Married with 4 children
    100. Seek forgiveness
    4. Early guilty plea
       
14. For the above mitigating factors I deduct 3 months from your sentence. Therefore your sentence stands for 3 months imprisonment.
    
15. In pursuant to section 26 (2) (b) of the Sentencing and Penalties Decree I am mindful that a sentence which is below two years could be suspended by this court.
    
16. You are not a first offender or a young offender. You have 06 previous convictions before this. Therefore Even though the quantity of the drugs in your possession was small I do not see any compelling reason to suspend your sentence. Accordingly, I sentence you to 03 months imprisonment period for the offence of Found in Possession of Illicit Drug", contrary to Section 5 (a) of Illicit drug Act N0 9 of 2004.
    

28 days to appeal.

24/04/2012

H.S.P.Somaratne
Resident Magistrate, Navua