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State v Maibatinisavu [2017] FJMC 20; Criminal Case 178.2017 (14 February 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 178/2017

STATE
V
SULIANO MAIBATINISAVU

For the Prosecution: Cpl Shaw

The accused: In person

Date of Sentence : 14^th of February 2017

SENTENCE

1. SULIANO MAIBATINISAVU, 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 09^th February 2017 you had in your possession 188.7 grams of Cannabis Sativa, commonly known as Indian hemp in this country.
3. I am satisfied that you pleaded guilty on your own free will and convict you for the charge.
4. The maximum penalty for Possession of Drugs is life imprisonment/ $100,000.00 fine.
5. 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.

6. Based on the facts in this case, I find that you fall in to the second category.
7. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in in the following manner :

"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. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

8. Considering the objective seriousness and your culpability, I select 16 months as the starting point for this sentence.
9. There are no aggravating factors and mitigating factors are 46 years old, married with 7 children, first offender. For these I deduct 4 months to reach 12 months imprisonment.
10. Giving full credit to your early guilty plea I deduct 1/3 to reach 08 months imprisonment.
11. In Laisiasa Koroivuki v the State(supra) the court further stated that the sentencing court has to give reason if the final sentence falls below or above the accepted tariff. Lack of aggravating factors, valid mitigating factors and early guilty plea has made this court to come below the tariff for the accused.
12. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Decree.
13. Even though you are a first offender, you are not a young offender. Hence in my view fully suspending this sentence is not suitable in this case. But considering your family and children and the early guilty plea a partly suspended sentence in justifiable.
14. You are sentenced to 08 months imprisonment for this charge. From that you have to serve 04 months in correction center and the balance 04 months will be suspended for 03 years after your imprisonment.
15. 28 days to appeal

Shageeth Somaratne

Resident Magistrate