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State v Sanday [2012] FJMC 206; Criminal Case 204.2007 (27 August 2012)

IN THE RESIDENT MAGISTRATE’S COURT
OF FIJI ISLANDS
AT SUVA

Criminal Case No; 204/2007

STATE

V

SAM SANDAY

Prosecution: Mr. Vodokisolomone (for DPP).

Accused: Ms Sharma T (LAC).

SENTENCE

1. The Accused of this case had been charged in this Court under Section 5(a) of Illicit Drugs Control Act No 09 of 2004, for the possession of an illicit drug namely, Cannabis Sativa.
   
2. According to the charge, quantity was 53.3 grams.
   
3. In view of the Criminal Procedure Decree 2009 and the decision of His Lordhsip Justice Goundar in State v Ilatia Wakeham HAC 001/2010, the Magistrates’ Court had the jurisdiction to hear and determine case under the Illicit Drugs Control Act No 09 of 2004.
   
4. You Sam Sanday are therefore, here today to be sentenced following the admission of ‘guilt’ on your own accord and free will in this Court for committing the above. Initially you proceeded in to trial by pleading ‘not guilty’ to the charge. However after several adjournments on 26.06.2012 your counsel informed the willingness to change the early plea. This Court is satisfied that your plea is free from force, threat or any other influence.
   
5. According to the Summary of Facts tendered by the Prosecution, which was read over and explained to you in your chosen language, on the 17.05.2007 at around 12.30 pm S/SGT Petero Tuiqala and another team police officers had been on joint operation duty when they spotted you at Deuba police post. Officers have questioned you on a tipoff they received and you had admitted and confessed to them that you have Marijuana at home. Later you were escorted to your house in Navua and you had produced 55 sachets of Cannabis in a cup.
   
6. You had been escorted to the Police station and interviewed under caution. The allegation was admitted by you.
   
7. The dried leaves found in your possession had been identified as Cannabis Sativa by the Government Analyst.
   
8. The aforesaid Summary of Facts was admitted by you on your own free will.
   
9. According to Section 5 (a) of the http://www.paclii.org/fj/legis/num_act/idca2004242/Illicit Drugs Control Act 2004 "any person who without lawful authority acquires, supplies, possesses, produces, manufactures, cultivates, uses, or administers an illicit drug commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or imprisonment for life or both. Section 2 of the http://www.paclii.org/fj/legis/num_act/idca2004242/Illicit Drugs Control Act 2004 interprets "illicit drugs" as any drug listed in Schedule I.
   
10. In Yavala v State [2011] FJHC 485; HAA021.2011 (31 August 2011) Hon. Justice Madigan stated that,
    

‘A Court is determining an appropriate sentence for possession of illicit drugs must start with a balancing exercise; first what is the amount of drugs seized and secondly what are the circumstances of possession. Obviously there will be a huge difference in sentencing between 10 grammes of marijuana for personal use and 8,000 grammes secreted in a vehicle on the way to market. More often than not the larger the seizure the more it will be part of a sophisticated operation for commercial supply’.

11. Winter J in Bavesi v The State [2004] FJHC 93; HAA0027.2004 (14 April 2004) categorized the guidelines for the cases of illicit drugs,
    

‘In line with another New Zealand decision R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA, Blanchard, Anderson and Robertson JJ). I now return to the issue of categorization of these offences. This type of offending can be divided into categories with the ultimate concern being the offenders degree of involvement in the drug supply process. The 3 broad categories might be:

Category 1 – The growing of a small number of cannabis plants for personal use by an offender or possession of small amount of cannabis coupled with "technical" supply of the drug to others on a non-commercial basis. First offender a short prison term, perhaps served in the community. Sentencing point 1 to 2 years.

Category 2 – 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. The starting point for sentencing should generally be between 2 to 4 years. However, where sales are limited and infrequent and lowest starting point might be justified.

Category 3 – Reserved for the most serious classes of offending involving large scale commercial growing or possession of large amounts of drug usually with a considerable degree of sophistication, large numbers of sales, circumstantial or direct evidence of commercial involvement the starting point would generally be 5 to 6 years.

12. You will be placed under 'Category 1'as per Bavesi v The State for sentencing purposes.
    
13. It was stated that you have possessed 55 sachets. Number of sachets you possessed will undoubtedly aggravate the nature of the offence.
    
14. In Mitigation you informed Court that you are 34 years of age; first offender; in a de-facto relationship with one child who is 6; pleaded guilty before a full hearing; and promised not to re-offend.
    
15. Having considered the circumstances of the case I start with 1 year imprisonment to determine your sentence. It is increased by 6 months for the above stated aggravating factor.
    
16. 6 months will be deducted to reflect your personal circumstances and guilty plea before full hearing.
    
17. Therefore your final term is 1 year imprisonment.
    
18. Sentencing and Penalties Decree 2009 provides statutory provisions to suspend an imprisonment term which is below 24 months.
    
19. You strongly insisted on a non custodial sentence by promising that this will be your first and final offence. The Court is mindful on the adverse repercussions of exposing a first offender to a cluster of hardcore criminals. Purpose of rehabilitation will not serve every time by committing the offenders in to prison.
    
20. 'Suspended sentence' is an alternative to the imprisonment. Temptation to commit an illegal activity can be permanently takeoff from someone's mind, by placing a strict condition on him that 'you will be committed to prison if you do so'. In other words 'there will be an activation of the sentence for the offence you committed prior to this'.
    
21. In light of the facts mentioned above, I decide to suspend your sentence. This will be your opportunity to reform as a law abiding citizen.
    
22. Hence I sentence you 1 year imprisonment and suspend the same for three years. Further you will pay a fine of $200/. In default 20 day's imprisonment. If you commit any crime and if found guilty by a Court, whilst serving the suspended sentence period of 3 years, you will be imprisoned for a term of 1 year.
    
23. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

27th August 2012