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State v Wati [2008] FJHC 227; HAC118.2008 (16 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 118 OF 2008

BETWEEN:

THE STATE

AND:

DAYA WATI

Counsel: Ms. A. Tuiketei for the State
Accused in Person

Date of Hearing: Monday 15th September, 2008
Date of Sentence: Tuesday 16th September, 2008

SENTENCE

[1] Daya Wati, you were charged with the following offence:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUG: Contrary to Section 5(a) of the Illicit Drugs Control Act No.9 of 2004

Particulars of Offence

DAYA WATI d/o GANESH PRASAD, on the 23rd day of April 2008 at Nasinu in the Central Division, without lawful authority, possessed 30.5 grams of Cannabis, an illicit drug.

[2] The trial commenced on 15 September 2008 before three assessors. Before the prosecution called any evidence, you changed your plea to guilty. You were convicted as charged after I was satisfied that:

(i) you understood and knowingly and intelligently waived your trial rights,

(ii) your plea was freely and voluntarily made,

(iii) you understood the consequences of the plea, and

(iv) there was a factual basis for the plea

Facts

[3] On 23 April 2008, the police raided your house at Lot 59 Makoi with a search warrant. Upon seeing the police and before the search was conducted, you voluntarily handed over the drugs to the police.

[4] You were interviewed under caution and you admitted selling marijuana from your house. You said you were selling a roll of marijuana for between $2.50 and $5.00.

[5] The drugs were tested and confirmed to be Cannabis Sativa weighing 30.5 grams.

Mitigating/Aggravating Features

[6] In mitigation, you said you are 49 years old, unemployed, and married with three children. Your husband is unemployed as well. You have obtained up to Form 5 education. You said you were selling drugs to fund your two younger children’s education. This is unfortunate but not a good excuse. There are so many people who are poor and cannot afford to send their children to school. If all of them start thinking like you, then every poor person will turn out to be criminals.

[7] On 5 May 2008, you were convicted of a similar offence and sentenced to 100 hours of community work. You told the Court that you have completed your community work. Your husband, son, and house girl were also convicted for that offence. Your husband was sentenced to 6 months imprisonment. He has been released from prison and is serving his sentence extramurally.

[8] You committed the first offence on 19 January 2007. The second offence was committed on 23 April 2008. I take you were on bail when you committed the second offence.

[9] The mitigating factors are the guilty plea, co-operation with the police and your personal circumstances.

[10] The aggravating factors are that the drugs were for commercial purpose and that the offence was committed while on bail for a similar offence.

[11] At the time you committed the offence you had no previous history of drug supply. The amount of drugs is not insignificant.

Tariff/Sentence

[12] The tariff for possession of marijuana for a commercial purpose with the object of deriving profit is between 2 to 4 years (Bavesi v State, Criminal Appeal No. HAA027 of 2004). A lower starting point might be justified where the sales are limited and infrequent.

[13] I start with a sentence of 18 years imprisonment and add 6 months for the aggravating factors. I give substantial discount for the mitigating factors and reduce the sentence to 9 months imprisonment. The persistent nature of offending justifies a custodial sentence to deter you from committing further offence of similar nature. The sentence would also serve as a stern warning to anyone who might be thinking of supplying drugs to the members of public.

[14] Daya Wati, your sentence is 9 months imprisonment.

[15] The drugs are to be destroyed within 14 days and the State is to file a report in Court.

Daniel Goundar
JUDGE

At Suva
Tuesday 16th September, 2008

Solicitors
Office of the Director of Public Prosecutions, Suva for the State
Accused in Person