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State v Tamani [2013] FJMC 298; CF695.13 (24 April 2013)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No.695/2013

THE STATE

v-

APOLOSI TAMANI

For Prosecution : WPC Fisher
For the Accused: Present

SENTENCE

1. APOLOSI TAMANI, you were charged with the offence of Unlawful Possession of Illicit Drugs contrary to section 5 (a) of the Drugs Control Act Number 9 of 2004 and the particulars of offence states as follows;
   

On the 14th day of April, 2013 at Suva in the Central Division, without lawful authority, possessed 2.2 grams of Cannabis Sativa, an Illicit Drug.

2. The summary of facts of the case that was submitted by the prosecution and admitted by you is as follows;
   

On the 14th day of April, 2013 at about 3.00pm, at Macarthur Street, Suva, SC 2097 Tuvuki R. [PW-1] was on mobile patrol when he saw Apolosi Tamani [Accused], 50 years, unemployed of Nanuku Settlement, Vatuwaqa acting in a suspicious manner. [PW-1] approached the [Accused] and informed him that he wants to search him. The [Accused] agreed so [PW-1] took him towards the Anglican Church. Upon searching, [PW-1] recovered 4 sachets of dried leaves believed to be marijuana wrapped in aluminum foil inside a black bag. [PW-2] then arrested the [accused] and escorted him to Totogo Police Station whereby a report was lodged. [PW-1] handed over the black bag with 4 sachets the dried leaves and the [Accused] to PC 2836 Tupou Lagi [PW-2]. The [Accused] was interviewed under caution by [PW-2] whereby he admitted the allegation. On 16.04.13, [PW-2] took the dried leaves to Koronivia Research Station for analysis. On the same day, [PW-2] collected the result from the Government Analyst confirming the Indian Hemp to be Cannabis Sativa weighing 2.2 grams. On 16.04.13, the [Accused] was charged for Unlawful Possession of Illicit Drugs: contrary to section 5 (a) of the Illicit Drugs Control Act Number 9 of 2004 by PC 3608 Sikeli [PW-3]. [PW-2] later handed over the dried leaves to the Exhibit Writer DC 3601 Ritesh Dewan [PW-4] for safekeeping.

3. I consider following mitigating factors which were brought before me in your oral mitigation. That you are;
   

50 years; married with 02 daughters; casual worker at the Raiwaqa Bread Shop and earn $100.00; seek forgiveness; sole breadwinner of the family; you pay your 02 daughters education they studying in MGM; seek lenient sentencing; promises not to re-offend. Further, you have stated that the cannabis was for personal your, personal use.

4. Statutory Indication:
   

Section 5 of the Illicit Drugs Control Act 2004 reads as follows:

"...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".

The Tariffs

I draw my attention to the recent Judgement Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012).

Their Lordships have analyzed 50 cases prosecutions for "possession of cannabis" contrary to section 5(a) of the Illicit Drugs Control Act 2004 to assist to draw up a sentencing guideline, proposing the following four categories: as follows:

“(i) Category 1: possession of 0 to 100 grams of cannabis sativa - a non-custodial sentence to be given, for example, fines, community service, counseling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short sharp prison sentence be considered.

(ii) Category 2: possession of 100 to 1,000 gram of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with those possessing below 500 grams, being sentenced to less than 2 years, and those possessing more than 500 grams, be sentenced to more than 2 years imprisonment.

(iii) Category 3: possessing 1,000 to 4,000 grams of cannabis sativa. Tariff should be a sentence between 3 to 7 years, with those possessing less than 2,500 grams, be sentenced to less than 4 years imprisonment, and those possessing more than 2,500 grams, be sentenced to more than 4 years.

(iv) Category 4: possessing 4,000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment.

Consequently, the four categories mentioned above, apply to each of the verbs mentioned in section 5(a) of the 2004 Act mentioned above. The weight of the particular illicit drug will determine which category the case falls under, and the applicable penalty that will apply.”

5. Sentence
   

I now proceed to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.

In Sentencing you, I consider and acknowledge your early guilty plea and Mitigating Factors including your personal background and your antecedents’; you have one live previous conviction. I also note that you are remorseful.

I note that you have remanded in custody since 16th April 2013 pending sentence. Fiji court of Appeal in: Prasad v State [2010] FJCA 12; AAU0111.2007 (8 April 2010) at paragraph 6referring to Basa v The State [2006] FJCA 23:AAU0024.2005 (24 March, 2006) held;

"As a matter of sentencing principle, any period that the offender spends in custody on remand should be taken into account when calculating the sentence. Although it is not necessary to make a precise calculation

In all the circumstances I find it appropriate to consider the time you spent in custody. I am of the view that you learnt your lesson having spent time in prison .I also note that you do not have any previous conviction for a offence of similar nature.

In this case, you fall into the first Category. see (Sulua v State-supra)Considering all the circumstances' of this case I discharge you for the offence of Unlawful Possession of Illicit Drugs contrary to section 5 (a) of the Drugs Control Act Number 9 of 2004.

Take this time and opportunity to rehabilitate and reform yourself so you can constructively contribute to your family and society.

I further make an order that if there are any drugs remaining in police custody, I hereby direct that such drugs are to be destroyed and a Certificate confirming the same is to be forwarded to the Court for the record.

Right of Appeal

28 days to appeal.

......................................
Lakshika Fernando
Resident Magistrate
On this 24th day of April 2013