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State v Tokivadua [2017] FJMC 63; Criminal Case 1473.2015 (3 May 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 1473/2015

STATE
V
BILIQITA TOKIVADUA

For the Prosecution: Cpl Shaw

The accused: In person

Date of Judgment : 02^nd of May 2017

Date of Sentence : 03^rd of May 2017

SENTENCE

1. BILIQITA TOKIVADUA , you were convicted after a hearing to one count Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.
2. It was proved during the hearing that on 13^th January 2013 you had in your possession 9.3grams of Cannabis Sativa, an Illicit Drug. You were in Suva remand at that time and waiting for the prison officers to search to be taken inside. To prevent the drugs from discovering you threw it away, but this was noticed by an alert officer who informed the authorities about that.
3. The maximum penalty for Possession of Drugs is life imprisonment/ $100,000.00 fine.
4. In Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) his Lordship Justice Temo set down the tariff for this offence in the following manner.

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.

5. Based on the facts in this case, I find that you fall in to the first category.
6. I consider this a worst case mentioned in the category 1 where a court may impose a custodial sentence.
7. Considering the nature of offending and your culpability, I select 03 months imprisonment as the starting point.
8. You were trying to smuggle drugs inside the correction center which is the aggravating factor in this case. To reflect that I add 02 months to reach 05 months imprisonment.
9. In your mitigation you submitted that you are 31 years old, married. For these personal mitigating factors I deduct 01 month to reach 04 months imprisonment.
10. You are not a first offender and hence not entitle for discounts for your character.
11. Now I have to consider whether to suspend this sentence as requested by you.
12. As mentioned above this is a worst case of possession small quantity of illicit drugs. Whilst being in remand you were trying to smuggle the drugs inside and this was prevented due to the security measures adopted by the correction center. Suspending this sentence would be clearly sending a wrong message to the society that this court would condone smuggling prohibited items inside the prison. Hence I decline to suspend this sentence.
13. BILIQITA TOKIVADUA, I sentenced you to 04 months imprisonment for this charge.
14. 28 days to appeal

Shageeth Somaratne

Resident Magistrate