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State v Nisha [2012] FJMC 324; Criminal Case 1017.2012 (28 November 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1017/2012

STATE

V

TAZMIN NISHA

PC Filipe Raymond for the prosecution
The accused in person

Sentence

1] You, TAZMIN NISHA, has pleaded guilty to the following charge;

CHARGE:

Statement of Offence [a]
UNLAWFUL POSSESSION OF AN ILLICIT DRUGS: Contrary to Section 5 (a) of the Illicit Drugs Act 2004.

Particulars of Offence [b]

TAZMIN NISHA on the 3rd day of November, 2011 at Lot 63, 9 Miles Nakasi, Nasinu in the Central Division, without lawful authority had in his possession of 3.6 grams of Cannabis commonly known as Indian hemp an illicit drug.

2] The SUMMARY OF FACTS, which you have admitted, I reproduce it as follows;

1. The accused namely Tazmin Nisha B1, 32 years, domestic duties of Lot 63 Nakasi, 9 Miles.
   
2. The complainant namely Filipe Puamau PW1, 36 years, Police Officer of Lot 67 Shalima Street, Nakasi.
   

Unlawful Possession of Illicit Drugs

3. PW1 and other Police Officers from the drug team of the Southern and Eastern were detailed to search the house of B1.
   
4. On 3/11/11 at about 1325 hours PW1 and party went to the house of B1 and they showed the search warrant to B1 before conducting the search.
   
5. B1 was questioned by PW1 in regards to the reason of their search and B1 voluntarily assisted the Police.
   
6. PW1 and party whilst in the house for search B1 took them to the kitchen whereby she showed them a hand bag on the shelves.
   
7. PW1 whilst checking it found 12 sachets of dried leaves believed to be marijuana inside her bag and upon asking B1 she admitted that it belongs to her as she bought from Vatuwaqa.
   

3] You were charged under to Section 5 (a) of Illicit Drugs Control of 2004 it says;

"5. Any person who without lawful authority-

(a) acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug; or

(b) engages in any dealings with any other person for the transfer, transport, supply, use, manufacture, offer, sale, import or export of 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."

4] Tariff for possession of illicit drugs has recently been sent by His Lordship Justice Madigan in Criminal Miscellaneous Case Nos. HAR 002 of 2012 to HAR 006 of 2012 Mesulame Koroi and others on 20th April 2012. In that His Lordship considered all previous relevant authorities and set a tariff according to the quantity found on detection from the accused. Madigan J categorized the starting point of the offence as follows;

(i) Possession of up to 100 grams or cultivation of no more than 5 plants, non custodial sentences at the discretion of the court.

(ii) Possession of 100 – 1000 grams and cultivation of 5 – 50 plants; custodial sentences in the range of one year to six years.

(iii) Possession of more than 1000 grams and cultivation of more than 50 plants, custodial sentences of six years or more.

(iv) For possession of very large quantities (5 kg or more) custodial sentences in the range of ten to fifteen years.

5] Aggravating factor is the accused was arrested after police raid of his home. Police took a search warrant.

6] In your mitigation you said that you are 32 years old married with three, house wife. You are remorseful and sought leniency and forgiveness. You asked non custodial sentence. You promised you will not re offend. You said you brought these sachets from a shop in Vatuwaqa for $5 each.

7] The police found 3.6 grams of Cannabis Sativa from your possession. It was in 12 sachets. There is no indication of cultivation. Quantity shows that you are a possible user or seller of cannabis. Otherwise why do you want to keep 12 packs?

8] I pick 12 months imprisonment as the starting point. For aggravating factor I increase the sentence 3 months. For your mitigating factors I reduce sentence 3 months. Your actual sentence is 12 months imprisonment.

9] You asked non custodial sentence. You are not a first offender. But there are no previous convictions on drug dealings. I now draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

10] Considering above guiding principles and judgments, I suspend your sentence for 3 years. Nature of suspended sentence is explained and copy of this sentence is given to the accused and the prosecution.

11] Illicit drugs to be destroyed after 28 days.

12] Summary: 12 months imprisonment suspended for 3 years.

13] 28 days to appeal.

On 28th November 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate