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State v Prasad - Sentence [2015] FJHC 618; HAC015.2015LAB (28 August 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 015 OF 2015LAB

STATE

V

JITEN PRASAD

Counsels : Ms. A. Vavadakua for State
Mr. K. Ratule for Accused

Hearings : 27 August, 2015
Sentence : 28 August, 2015

SENTENCE

1. On 27 August 2015, in the presence of your counsel, you pleaded guilty to the following information:
   

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUGS: Contrary to section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JITEN PRASAD on the 9th day of July 2014, at Labasa, in the Northern Division, without lawful authority, had in his possession 5.18 kilograms of Indian Hemp or Cannabis Sativa, an illicit drug

2. The prosecution then read their summary of facts, which were as follows:
   

The Accused in this matter is Jiten Prasad, aged 42 years old. He is charged with One Count of possession of illicit drugs contrary to section 5 (a) of the Illicit Drugs Control Act 2004.

On the 9th of July, 2014, at Nasasa Daku, a team of Police Officers led by Sgt. 2022 Epeli Lagi executed a search warrant at the house of the Accused, Jiten Prasad.

Upon search of his house, on the above mentioned date, 6 plastics of dried marijuana leaves were found and 3 plastics of dried leaves, 1 blue taupline containing dried leaves and 3 white flour bags also containing dried leaves, 1 blue taupline containing dried leaves, 1 white rice flour bag containing dried leaves, 1 red container containing seeds and 1 black plastic container containing dried leaves, 21 stems and dried roots.

The plants materials were sent to the Fiji Police Force Forensic team for analysis and it was confirmed that all the plant materials were marijuana or cannabis sativa. They had a total weight of 5.18 kilograms. The Accused kept these illicit drugs or cannabis sativa plants materials without lawful authority.

In his Caution Interview, the Accused also admitted that he brings the marijuana plant materials so that he can sell the same and he stated that he sells them for $700.00 in Labasa town.

3. The court then checked with defence counsel to see that the accused is admitting all the elements of the offence of "unlawful possession of illicit drugs". Through defence counsel, the accused admitted the prosecution's summary of facts. In particular, he admitted possessing 5.18 kilograms of cannabis sativa unlawfully, on 9 July 2014. As a result of the above admission, the court found the accused guilty as charged and convicted him accordingly.

4. In State v Tomasi Rabuka, Criminal Case No. HAC 017 of 2015 LAB, High Court, Labasa, I said the following with reference to the offence of "unlawful cultivation of cannabis sativa":

"Unlawful cultivation of Illicit Drugs" is viewed seriously by Parliament, the representative of the people of this country. The evils of drugs had been highlighted in various publications. Parliament had prescribed a maximum sentence of life imprisonment, a $1,000,000 fine, or both (section 5 (a) of Illicit Drugs Control Act 2004), for those found guilty of the offence. On 31 May, 2012, in a majority judgment in the Court of Appeal, that is, Kini Sulua, Michael Ashley Chandra v The State, Criminal Appeal No. AAU 0093 and 0074 of 2008, a new sentencing guideline for those found cultivating more than 4 kilograms of cannabis sativa was set. The tariff was set between a sentence of 7 to 14 years imprisonment (category 4). The actual sentence will depend on the mitigating and aggravating factors.

The above statements also apply to the offence of "unlawful possession of illicit drugs i.e. cannabis sativa".

5. The mitigating factors in this case were as follows:

(i) Although you pleaded guilty to the offence 3 months 16 days after the first call in the High Court, you nevertheless saved the court's time:
(ii) At the age of 42 years old, this was your first offence;
(iii) During the police investigation, you co-operated with police;
(iv) You had been remanded in custody for only 1 day i.e.the 14th July 2014.

6. On the facts presented, there does not appear to be any aggravating factors.

7. In choosing a starting point, I must take on board the sentences issued in the three known cases of cannabis sativa offending over 4 kilogram (i.e. Category 4 type cases). The first was State v Sheik Mohammed, Criminal Case No.HAC 033 of 2008, High Court, Labasa, where the accused was found with 4.8 kilograms of cannabis sativa. He got a sentence of 10 years imprisonment. The second was State v Kini Sulua, Criminal Case No.HAC 023 of 2008, High Court, Lautoka. In this case, the accused had 5.2 kilograms of cannabis sativa. He got a sentence of 8 years imprisonment. The third case was State v Tomasi Rabuka, Criminal Case No.HAC 017 of 2015, High Court, Labasa. In this case, the accused had 10.9 kilogram of cannabis sativa. He got a sentence of 9 years imprisonment. Note in State v Tomasi Rabuka (supra), the accused pleaded guilty at the first opportunity, while in State v Sheik Mohammed (supra) and State v Kini Sulua (supra), both accuseds went to trial. I start with a sentence of 12 years imprisonment.

8. For pleading guilty, I make a deduction of 3 years. As a first offender, I make another deduction of 1 year. For assisting police during the investigation, and being remanded in custody for 1 day, I make another deduction of 1 year. So, the total deduction is 5 years, which is deducted from the total sentence of 12 years, leaving a balance of 7 years imprisonment.

9. Mr. Jiten Prasad, for being in unlawful possession of 5.18 kilograms of cannabis sativa on 9 July 2014 at Labasa in the Northern Division, I sentence you to 7 years imprisonment, with a non-parole period of 6 years, effective forthwith.

10. The 5.18 kilograms of cannabis sativa, in the possession of the police, is to be destroyed by the police, as soon as the appeal period expires.

SalesiTemo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Gibson & Company, Solicitors, Labasa