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State v Luvuci [2017] FJMC 1; Criminal Case 1566 of 2016 (3 January 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 1566/2016

STATE
V
ATELAITE LUVUCI

For the Prosecution: Cpl Shaw

For the Accused : Ms.A.Prakash (LAC)

Date of Sentence : 03^rd of January 2017

SENTENCE

1. ATELAITE LUVUCI, you were charged with one count Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.
2. You pleaded guilty and admitted that on 17^th of September 2016 you had in your possession 0.1 grams of Methamphetamine which is commonly known as ICE.
3. I am satisfied that you pleaded guilty on your own free will and convict you for this charge.
4. The maximum penalty for Possession of Drugs is life imprisonment/ $100,000.00 fine.
5. The learned counsel from the legal aid in her mitigation submission submitted that you fall in to the category 1 in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012).
6. In Sulua v State [supra) his Lordship Justice Temo set down the tariff in the following manner.

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.

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

7. But these guidelines were formulated for Cannabis Sativa and hence would not apply for this case.
8. In State v Kreimanis [2013] FJHC 536; HAC225.2011 (15 October 2013) his Lordship Justice De Silva observed that there is no tariff for possession of methamphetamine in Fiji presently.
9. In R v Fatu [2006] 2NZLR 72 (CA) it was held that sentencing brand for cases involving the sale or supply of methamphetamine of very large commercial quantities (500 g or more) is ten years to life imprisonment.
10. In R v Arunguren (1994) 99 Cr App R(S) 347 it was held by Lord Chief Justice Taylor that:

"Instead of using the factor of monetary value of such hard drugs, as heretofore, the new yardstick for measuring the relative significance of any seizure of class A drugs was by weight rather than the street value. Thus for the guidelines laid down in Bilinski (1988) 86 Cr. App.R. 146 following should be substituted: where the weight of the drugs at 100 per cent purity was of the order of 500 grammes or more, sentences of 10 years imprisonment and upwards were appropriate. Where the weight at 100 per cent purity was of the order of five kilogrammes or more, sentences of 14 years or more were appropriate.”

11. Using the above authorities in State v Kreimanis( supra) Justice De Silva decided that the tariff for 5kg of methamphetamine is 10-16 years imprisonment. Further in State v Stires [2014] FJHC 556; HAC13.2014 (30 July 2014) the same Judge held that tariff for 2-5kg would be 8-14 years imprisonment.
    12. Further in Hong Kong the tariff for this drug has been discussed in ATTORNEY GENERAL v. CHING KWOK HUNG [1991] HKCA 17; CAAR 15/1990 (7 May 1991). The court adopted the following tariff for the possession for unlawful trafficking or trafficking in methamphetamine hydrochloride:

(1) up to 12 grammes - 3 to 7 years' imprisonment;

(2) between 10 and 70 grammes - 7 to 10 years' imprisonment;

(3) between 70 and 300 grammes - 10 to 14 years' imprisonment;

(4) between 300 and 600 grammes - 14 to 18 years' imprisonment;

(5) over 600 grammes - 18 years' and upwards.

13. But adopting the tariff set down in ATTORNEY GENERAL v. CHING KWOK HUNG( supra) would be inconsistent with decided decisions from High Court of Fiji for this drug and I would not consider that.
14. Hence considering the authorities in Fiji and New Zealand in my view the acceptable tariff for 1-2kg of methamphetamine could be from 6-10 years and possession of 500g or more would be 4- 6 years imprisonment . Possession of drugs less than 500 g, 1- 4 years imprisonment is justifiable. The final sentence would depend on the aggravating and mitigating factors present in the case.
15. Considering the objective seriousness and your culpability, I select 16 months as the starting point for your sentence.
16. There are no aggravating factors and mitigating factors as submitted by your counsel:
    1. young offender;
    2. First offender;
    100. Single and got a 3 year old child looked after by her parents;
    4. Seeking forgiveness and co-operated with the police.
17. For these mitigating factors I deduct 04 months to reach 12 months imprisonment.
18. Having got the proper legal advice, you pleaded guilty early without wasting the time and for that I deduct 1/3 to reach 08 months imprisonment.
19. Now I have to consider whether to suspend this sentence.
20. In ATTORNEY GENERAL v. CHING KWOK HUNG(supra) the court further observed that :

“We are persuaded that ICE is a drug to be taken very seriously indeed. In ways it is more deleterious to its abusers and to society in general, than is heroin. In our judgment guidelines should emerge now before ICE becomes prevalent in Hong Kong in order to deter both those who would seek to use it and those who would seek to exploit the abuser.”

21. Dangers of methamphetamine to the users are well documented. In National Institute of Justice Journal Issue No. 254 it has been said :

“But a methamphetamine user is not the typical drug user. That is because methamphetamine has acute toxic effects that produce long-term problems for the user and those around him/her. It is a powerful central nervous system stimulant that promotes the release of neurotransmitters that control the brain’s messaging systems for reward and pleasure, sleep, appetite, and mood. However ingested (injected, taken orally, or snorted), methamphetamine produces extended highs and potentially agitated or overenergized states.

Chronic use of methamphetamine causes long-term alterations to users’ brain chemistry and structure that result in impaired memory, mood alterations, impaired motor coordination, and psychiatric problems, even long after terminating use. The short-term management of the agitated user at arrest and the long-term health problems that jails and lock-ups must deal with make methamphetamine users a serious logistical and financial burden, particularly in areas with limited manpower or resources.”

22. In my view the main consideration in sentencing is to deter people in Fiji from using this highly addictive drug which would cause havoc in society. Even though there is no evidence before me to show the use of methamphetamine is wide spread in this country as Cons, J.A. (as he then was) in The Attorney General v. Leung Pang Chiu [1986] HKLR 608 said: "It is better to eradicate a bad habit before rather than after it has taken a firm hold.” Hence a custodial sentence is warranted to deter people from possessing and using this drug and to protect the young people from this menace.
23. But considering your young age, past good behavior, the amount of drugs and personal mitigating factors (single mother with a small child) there need to be a chance for you to rehabilitate also instead of spending the full time in the correction center. A partly suspended sentence is justifiable to fulfill these objectives.
24. ATELAITE LUVUCI, I sentenced you to 08 months imprisonment. From these you have to spend 04 months in correction center and balance 04 month will be suspended for 03 years.
25. If you commit any offences during the operational period of your suspended sentences you can be charge under section 28 of the Sentencing and Penalties Decree.
26. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate