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State v Ranuqanuqa [2017] FJMC 14; Criminal Case 594.2007 (3 February 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 594/2007

STATE
V

JOELI RANUQANUQA

Counsel : Mr. Vodokisolomone for the Prosecution

Mr.Romanu for the Accused

Date of Judgment: 03^rd of February 2017

SENTENCE

1. JOELI RANUQANUQA, you were convicted after a hearing to one count Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.
2. On 19/03/2007 after getting information the police waited at the Deep Shop at Naveiwakaau and saw you get in to a taxi with a black bag. They followed the vehicle and arrested you and found the bag contained Cannabis Sativa. The analyst confirmed that weight of the drug was 837.4 grams.
3. The maximum penalty for Possession of Drugs is life imprisonment/ $100,000.00 fine.
4. In Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) his Lordship Justice Temo set down the tariff for this offence 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.

5. Based on the quantity of the drugs, I find this fall in to the second category with a sentence of 2-3 years imprisonment.
6. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff.

7. Considering the facts in this case, I select 30 months imprisonment as your starting point.
8. The counsel from the State in his sentencing submission submitted the following as aggravating factors:
   1. The accused had similar previous convictions;
   2. He has pleaded not guilty and not shown any sign of remorse;
   100. The amount of drugs seized clearly indicates that it was for commercial purpose.
9. The previous convictions of the accused can’t be considered as aggravating factor in a case, but this would stop him from seeking credit for his character in mitigation. Also even though he has not pleaded guilty early this should not be considered against him in sentencing. Section 14(2) (l) of the 2013 Constitution has given the accused to call witnesses and to challenged the evidence against him and in this case he has exercised that right. Even though the amount sized in this case suggest this is not for personal consumption without conclusive evidence I would not consider that against the accused. Hence I find the grounds submitted by the state are no aggravating factors in this case to enhance the sentence.
10. Your counsel has filed the mitigation submission submitting the following grounds:
    1. 46 years old;
    2. Married with 2 small children;
    100. Your wife’s leg is amputated below knee and difficulty in moving around;
    4. Your children are attending school;
11. For these personal mitigating factors, I deduct 04 months to reach 26 months imprisonment.
12. From the court record I note that you were in remand for this case for nearly 02 months (14/03/2014-07/05/2014) and pursuant to section 24 of the Sentencing and Penalties Decree I deduct that period to reach 24 months imprisonment.
13. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Decree.
14. Seeking a non-custodial sentence your counsel submitted that you have been waiting for nearly 10 years for this day. Even though the prima facie it would appear that there is long delay in disposing this matter, the court record would explain the reason that led to this delay. The initial hearing was concluded before RM Vaqavolavola(as he then was) in 2009, but before delivering the judgment he left the judiciary. After numerous adjournments a de novo trial was conducted before me resulting in this sentence. The accused was absconding from 15/07/2009- 10/01/2014 (nearly 05 years) and the de novo application was made before me only in 2015. Hence the accused has substantially contributed to the delay in this case and should not benefit from that.
15. Your counsel also submitted State v Mafi [2016] FJHC 489 where the High court in an appeal from the Kadavu Magistrate court did not disturb the suspended sentence imposed by the Chief Magistrate . But the facts are different in that case. In Mafi( supra) the court found that the accused was needed to do rehabilitation work in in his island after the Cyclone Winston. In this case apart from your personal mitigating factors I do not see any special ground to consider suspending this sentence. Hence a custodial sentence would be imposed on you to denounce your behavior as well as to deter future offenders who would deal with the Illicit Drugs in this country.
16. JOELI RANUQANUQA, you are sentenced to 2 years imprisonment for this charge with a non-parole period of 18 months imprisonment for the offence of Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.
17. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.

Shageeth Somaratne

Resident Magistrate