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State v Kele [2016] FJMC 80; Criminal Case 573.2016 (7 July 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 573/16

STATE

-v-

IOSEFO KELE

SENTENCE

INTRODUCTION AND CHARGE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

UNLAWFUL POSSESSIONOF ILLICIT DRUGS: Contrary to Section 5(a) of the Illicit Drugs Control Act No. 9 of 2004.

Particulars of Offence

IOSEFO KELE on the 24th day of December 2015 at Suva in the Central Division without lawful authority possessed 22.8g of cannabis sativa an illicit drug.

SUMMARY OF FACTS

2] Summary of facts that you have admitted revealed that

➢ On 24/12/16 at about 1620hours, Struant Street, Suva PC 5246 Romulo A1 and PC 5256 Sevanaia A2, both of Totogo Police Station were on foot patrol along the said street.

➢ Whilst on patrol A1 and A2 heard two people talking where they went towards them.

➢ Upon arrival, they both saw that you were opening a black plastic covered with an aluminium foil containing the dried leaves believed to be marijuana.

➢ You were then escorted to Market Police Post where the report was lodged and then conveyed to Totogo Police Station.

➢ Dried leaves were then dispatched to the Forensic Laboratory at Nasova for analysis where the Government Analyst confirmed that the plastic cover contained Indian hemp botanically known as Cannabis sativa weighing 22.8 grams.

MAXIMUM SENTENCE

3] A fine not exceeding $ 1,000,000 or imprisonment for life or both

TARIFF

4] The tariff was fixed in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) 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, counselling, 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.

AGGRAVATING FACTORS

5] No aggravating factors

MITIGATING FACTORS

6] Following factors shall be considered belowin the process of sentencing.

1. Early guilty plea
2. 27 years
3. Asking forgiveness
4. You said that you found a plastic packet and it’s your fault that you did not hand it over to the police

CONCLUSION

7] I shall now proceed to consider your sentence to be consistent with the above mentioned factors.

8] Your sentence should be within category 1 of the tariff as mentioned above.

9] You have pleaded guilty at the first available opportunity. However you submission that you found it not knowing the contents cannot be accepted since you have admitted your knowledge by your plea. The amount mentioned in the charge is a considerable amount even for personal consumption. The use of cannabis has become a menace of the Fijian society and the purpose of Illicit Drugs Control Act 2004 is to combat this threat.

His Lordship Justice SalesiTemo in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) said that

“As courts of law, our duty is to give effect to the Illicit Drugs Control Act 2004, not to defeat it. Any amendment to the 2004 Act, is a matter for Parliament/law makers to make, rather than the Courts.’

10] In terms of Sec 4 (1) Sentencing and Penalties Decree 2009 purposes for which sentencing may be imposed by a court are inter alia to punish offenders to an extent in a manner which is just in all the circumstances , to protect the community from offenders and to deter offenders or other persons from committing offences of the same or similar nature

11] Considering the amount, your mitigating factors and the sentencing guidelines I impose a fine of $900 and 5 months imprisonment in default.

12] Police is directed to destroy the drugs in custody and to file a report to that effect.

14] 28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

7/7/2016