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State v Fifita [2015] FJMC 39; Criminal Case 03.2014 (23 March 2015)

IN THE RESIDENT MAGISTRATE'S COURT
AT NADI FIJI ISLANDS

CRIMINAL CASE NO 03 of 2014

STATE

V

SATEKI FIFITA

BEFORE : Resident Magistrate, Kashyapa Wickaramasekara
DATE : Monday 23rd of March 2015

COUNSEL : WPC Ana for the Prosecution
Accused in person

SENTENCE

1. You,SATEKI FIFITA, were charged by this court, for the offence of Unlawfully In Possession of an Illicit Drug which is punishable under Section 5 (a) of the Illicit Drugs Control Act 2004.
   

2. You pleaded guilty for the said offence on the 12th May 2014 on your own will and accord. I am satisfied that you fully comprehended the legal effect of your plea and your plea was voluntary and free from influence. You further admitted to the Summary of Facts read over and explained to you in Court on that day, which supported the elements of the charge. The SOF establishes the charge and accordingly court finds your plea to be unequivocal and as such you are found guilty and convicted as charged for the offence of Unlawfully inPossession of an Illicit Drug.

3. Summary of facts, as admitted by you before the court, revealed that this offence was committed on 24thApril 2013, at Nadi Town, Nadi.

4. Further, the summery of facts revealed, that you were arrested by the Complainant upon a recovery of a parcel of dried leaves believed to be marijuana wrapped in a newspaper.The Complainant whilst returning to the Town had noticed a truck parked at the back-street of 'Down Town Motel'. When the Complainant approached the truck he had seen you with another. Upon questioning, you had handed over a parcel believed to be marijuana to the Complainant. You were then arrested and produced to the station.

When interviewed under caution, you have admitted to the offence of having in possession illicit drugs and were then released awaiting the drug analysis report.

At the 'Fiji Forensic Laboratory-Koronivia' the contents of the bag were analyzed and were positive for illicit drugs and the total weight of the content was 26.9 grams.

As per the Certificate of Analysis by the Government Analyst dated 12/07/2013, the content of the bag is identified as 'Indian Hemp Leaves botanically known as Cannabis Sativa' and the total weight as 26.9 grams.

5. Having considered the summery of facts in this case and the facts in mitigation, I now direct myself to consider the appropriate sentence on your the general pril principles and guidelines on sentencing and the range of sentencing orders a court can make as set out in Sections 04 and 15 of the Sentencing and Penalties Decree 2009 in lith the objectives thereof.reof.

6. The maximum punishment for UnlawfulPossession of an Illicit Drug is a fot exceeding $1,0 $1,000,000 or imprisonment for life or both.

7. You in mitigation stated; that you are 35yrs old ed with 01 child, employed at a kava shop earning $ 120 per week and that you are the sole sole breadwinner of the family.

You were remorseful, begged forgiveness from Court and promised not to re-offend. Court further considers that you are a first offender and that you pleaded guilty at your earliest.

8. Considering the tariff for the offence; I find that the majority judgment in Fiji Court of Appeal Case, Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012), by Hon. Justice SaleciTemo JA (as he then was), to have well settled the law on tariff. This judgment is made as a guideline judgment on the offence.

In the above judgment this offence has been categorized in to four categories based on the weight of the drugs recovered and the first category is mentioned thus;

"Category 1: 0 to 100 grams

Of the 50 cases referred to us by prosecution, 30 cases were prosecution for possession of cannabis below 100 grams i.e. 60%. Of the 30 cases, 14 were disposed by short prison sentences between 1 month and 12 months. Of the 30 cases, 11 were disposed by suspended prison sentences. Of the 30 cases, 5 were non-custodial sentences. It was observed from the cases, that there was a general reluctance by the courts to give a custodial sentence in this category, but if a custodial sentence was warranted, it was generally between 1 to 12 months. (Emphasis is mine)

When considering the 50 cases referred to us, it was found that too much time and resources had been wasted in arresting, investigating, prosecuting and sentencing those in this category. Those in this category are often the "small players" in the illicit drug criminal industry. There need to be a change in policy in targeting the "big players" in the drug industry i.e. the cultivators and suppliers. Time and resources must be re-channeled to target the "big players" in the industry.

It is therefore crucial that those found guilty under this category, be given a non-custodial sentence in the form of fines, community service, counseling etc. Only in the worst case scenario is a suspended prison sentence or a short sharp prison sentence warranted."

9. Having carefully considered all relevant facts and circumstances along with relevant law, I am of the view that the imposition of a fine upon conviction would be sufficient punishment in this case.

10. In the case of Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) (Supra), Hon. Justice William Marshall JA in his dissenting judgment has pointed out the aggravating factors as stated by Hon. Justice Shameem J in the case of Michael Ashley Chandra v State (un reported), which was one of the judgments on appeal in the Sulua'scase (Supra). Though it is not upheld by Hon. Justice William Marshall JA, the sentence ofHon. Justice Shameem J was affirmed by the majority judgement in the Sulua'scase (Supra). Thus I quote the aggravating factors stated by Hon. Justice Shameem J in the case of Michael Ashley Chandra v State (un reported);

"The aggravating factors are the amount of the drugs, the fact that you put your family members at risk by hiding the drugs in their house and the commercial use to which you intended to put the drugs."(Emphasis is mine).

In the light of the above decision I do not find any aggravating factors in this case. However it is to be considered that there is a noticeable quantity of illicit drugs found in your possession though it less than 100 grams.

11. Considering all above facts, circumstances, the relative seriousness of the offence and the surrounding circumstances of offending along with facts under section 32 of the Sentencing and Penalties Decree 2009 court imposes a fine of $ 400.00 for this offence and in default an imprisonment term of 40 days.

12. You have 28 days to Appeal.

Kashyapa Wickramasekara
23rdMarch 2015.
Resident Magistrate.