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State v Wise [2013] FJMC 158; Criminal Case 53.2013 (18 April 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case No: - 53 /2013

STATE

V

HERBERT WISE

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

SENTENCE

1. HERBERT WISE, this is your sentence for the offence of Found in Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act Number 9 of 2004.
   
2. You waived right to counsel and pleaded guilty for the above charge on 19 March 2013. You also admitted the summary of facts.
   
3. According to summary of facts the police found 2.1 grams of Indian Hemp in your possession on 11 March 2011.
   
4. I am satisfied about your plea and convict you for the above offence.
   

The Law and Tariff

5. Maximum sentence for this offence is life imprisonment or fine not exceeding $ 100,000 or both.
   
6. In Kini Sulua, Michael Ashley Chandra v The State His Lordship Justice Temo set down the tariff for these offences as follows .
   

"...Category 1: possession of 0 to 100 grams of cannabis sativa – a non-custodial sentence to be given, for example, fines, community service, counseling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short prison sentence be considered...

Category 2: possession of 100 to 1,000 grams of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with those possessing below 500 grams, being sentenced to less than 2 years, and those possessing more than 500 grams, be sentenced to more than 2 years imprisonment...

Category 3: possessing 1,000 to 4,000 grams of cannabis sativa. Tariff should be a sentence between 3 to 7 years, with those possessing less than 2,500 grams, be sentenced to less than 4 years imprisonment, and those possessing more than 2,500 grams, be sentenced to more than 4 years

Category 4: possessing 4,000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment..."

7. You are falling in to the Category 1 offender and I select 03 months as your starting point.
   

Aggravating Factor

8. There are no aggravating factors in this case.
   

Mitigating Factors

9. Since you have pleaded guilty at the first available instance following the decision of Vilimone v State [2008] FJHC 12; HAA I deduct 1/3 from your sentence to reach 02 months .
   
10. You are not a first offender and not entitle for any discounts for your past behavior.
    
11. You filed mitigation submission in this Court on 16 April 2013. But I do not think it will assist this Court.
    
12. This Court can suspend a sentence below 02 years under section 26(2) (b) of the Sentencing and Penalties Decree.
    
13. You are not a first offender. But you saved Court's resources by pleading guilty early. Therefore you will be given a chance to reform.
    
14. You are sentenced to 02 months imprisonment and that will be suspended for 02 years.
    
15. If you commit any crime during the next 02 years you can be charged under sec 28 of the Sentencing and Penalties Decree.
    
16. 28 days to appeal.
    

18 April 2013

H.S.P.Somaratne
Resident Magistrate, Navua