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State v Ravugati [2013] FJMC 191; Criminal Case 1313.2012 (14 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1313/2012

STATE

-v-

TOMASI RAVUGATI

PC Filipe Raymond for the prosecution
The accused in person

Sentence

1] You, TOMASI RAVUGATI, has pleaded guilty to the following charge;

CHARGE:

Statement of Offence [a]

UNLAWFUL POSSESSION OF ILLICIT DRUGS: Contrary to Section 5 (a) of the Illicit Drug Act No. 9 of 2004..

Particulars of Offence [b]

TOMASI RAVUGATI on the 20th day of October 2012 at Delainasole Settlement at Nasinu in the Central Division without lawfully had in his possession of 259.28 grams of Cannabis commonly known as Indian Hemp.

2] The SUMMARY OF FACTS, which you have admitted, I reproduce it as follows;

1. On the 20th day of October 2012 at about 1617 hours PC 3210 Manasa PW1 of Valelevu Police Station seized two plastic containing dried leaves believed to be marijuana from the house of Tomasi Ravugati (Accused) of Delainasole Settlement, Nasinu.
   
2. On the above mentioned date, time and place PW1 was at the Station when he was instructed to assist the drugs unit to conduct raid at the house of accused. This was due to the information that was received. Upon executing the search warrant to accused, his house was searched and the plastic containing dried leaves was found inside the house. Also WPC 3696 Enenani, PW2 found a small sealed plastic containing dried leaves and PC 4755 Sailosi PW3 also found a small sealed plastic containing 8 sachets of dried leaves. A total of $1332.00 was also seized believed to be proceeds of sale of marijuana.
   
3. The dried leaves were then tested at Koronivia Research Station and it was found that it was Indian Hemp botanically known as Cannabis Sativa all to the total weight of 259.28 grams.
   

3] You were charged under to Section 5 (a) of Illicit Drugs Control of 2004 it says;

"5. Any person who without lawful authority-

(a) acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug; or

(b) engages in any dealings with any other person for the transfer, transport, supply, use, manufacture, offer, sale, import or export of 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."

4] Tariff for possession of illicit drugs has recently been set by His Lordship Justice Madigan in Criminal Miscellaneous Case Nos. HAR 002 of 2012 to HAR 006 of 2012 Mesulame Koroi and others on 20th April 2012. In that His Lordship considered all previous relevant authorities and set a tariff according to the quantity found on detection from the accused. Madigan J categorized the starting point of the offence 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.

5] In Kini Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) His Lordship Justice Salesi Temo further elaborated the four categories and held:

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

(ii) Category 2: possession of 100 to 1,000 gram 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.

(iii) 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.

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

6] There are no aggravating factors. But police obtained a search warrant and you caught on detection.

7] In your mitigation you said that you are 48 years old married with one child. You are unemployed. You remorseful and sought leniency and forgiveness. You asked non custodial sentence. You promised you will not re offend. You said you did this because you did not have other source of income and you are compelled to do so. Your child is just started kindergarten. you said you are sole bread winner.

8] The police found 259.28 grams of Cannabis Sativa from your possession. There is no indication of cultivation. This falls in to category 2. You have 51 previous convictions ranging since 1980. 11 previous convictions are similar in nature. There are 6 previous convictions for last ten years. Out of 6, 5 were for the same offence. The amount and previous conviction indicates that you are a supplier. You live on this business. It is clear that you do this for commercial basis. You are in the trade at the grass root level and you supply to consumers. Quantity and previous convictions show that you are a possible seller of cannabis. Your mitigation itself proved that you have chosen easy path to get money by this illegal business. You should be ashamed to live and support with illegal money while other law abiding persons are striving to earn their hard earn money more lawfully. What will happen to this country if this court endorsed your statement and take this as a strong mitigation? Everybody would start this kind of business for easy money. It would be a bad precedent and unfair to hard earn law abiding persons. You have 5 recent previous convictions. All of them are engaging same offence. It means you repeated this offence and it seems you are incorrigible and you are worst case.

9] I pick 18 months imprisonment as the starting point. For your mitigating factors and early plea I reduce sentence 6 months. Your actual sentence is 12 months imprisonment. There are no compelling reasons for suspending this imprisonment as you have never learnt a lesson.

10] Illicit drugs to be destroyed after 28 days.

11] Summary: 12 months imprisonment.

12] 28 days to appeal.

On 14th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate