Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Makaba [2010] FJMC 4; Criminal Case 370.2009 (10 February 2010)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 370 of 2009

STATE

V

JOHN MAKABA

Before: Chaitanya Lakshman
Resident Magistrate

For Prosecution: Inspector Ali
Accused : Present – In person

SENTENCE

Introduction

The accused was charged with unlawful possession of an illicit drug, contrary to Section 5 (a) of Illicit Drug Control Act, 2004. It was alleged that John Makaba on the 14th day of February 2009 at Ross Street, Nausori in the Central Division without lawful authority had in his possession 11.7 grams of Cannabis Sativa or Indian Hemp an Illicit Drug.

On the date of the hearing the accused waived right to legal counsel. After a hearing the court found the accused guilty and convicted him accordingly.

In his mitigation the accused told the court that he is 38 years old married with 4 children, a farmer earning $100 per week, sought forgiveness, sole bread winner and was willing to pay a fine.

The Tariffs

Justice Winter in Meli Bavesi v. State HC Criminal Case # HAA027s of 2004 and Justice Shameem in State v. George Pickering HC Criminal Case # 035 of 2006s stated that culpability depended not on the amount of drugs found but on the purpose of the possession.

In State v. Rakesh Chandra Mani HAC 31 of 2006s, Justice Winter stated that in cases for possession of illicit drugs of 30grams or more, the presumption is that the accused’s purpose of possession is for supply or sale unless they prove on the balance of probabilities that it was simple possession.

In Meli Bavesi v. State HC Criminal Case # HAA027s of 2004, Justice Winter stated that the starting point for small scale cultivation of cannabis plants or possession for a commercial purpose with the object of deriving profit, circumstantial evidence of sale even on small scale commercial basis generally to be between 2-4 years. However, were sales are limited and frequent and lowest starting point might be justified.

In Tomasi Naudreudre v. State HAA037 of 2003s where the offender was in possession of 920 grams of Indian Hemp, was 38 years old, a first offender and had pleaded guilty the Court upheld that a proper starting point is 5 years.

Starting Point

The quantity of drugs found in the accuseds possession was 11.7 grams which were in 21 sachets. The court notes that the accused has 2 previous conviction drug related convictions. The one that is over 10 years is disregarded by the Court. The other was in 2003 where you were fined $100/id 3 months. The Court will start at 1 year imprisonment based on the quantity.

Aggravating factors

I increase your sentence due to the fact that courts time that was wasted in the trial. You had 21 sachets with you which were surely not for personal use. You also do not wish to change your ways despite previous chance given to you. For these factors the Court increases your sentence by 6 months.

Mitigation

Your total mitigation allows you some discount. The Court allows 6 months discount.

Sentence

The accused is sentenced to 12 months imprisonment.

Right of Appeal

28 days to appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE
Nausori

10/02/10