Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Nawaqabuli [2017] FJMC 76; Criminal Case 57 of 2017 (13 June 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case : 57/2017

STATE
V
APOROSA NAWAQABULI

For the Prosecution: Sgt.Vilisoni

The accused: In person

Date of Sentence : 13^th of June 2017

SENTENCE

1. APOROSA NAWAQABULI, you were charged with one count of Unlawful Cultivation of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.
2. You pleaded guilty and admitted the following summary of facts presented by the prosecution:

On the 9th day June 2017, at about 0700hrs at Nukulukulu Settlements, Naqia the Eastern Division Drugs Operation Team led by IP Viliame Maivusa [A-1] 35 years Police Officer, search and raided the house and compound of one Aporosa Nawaqabuli [B-1], 58 years farmer of Naqia Village and uprooted 41 green plants believed to be marijuana which was planted in pot plant kept inside a wooden box which was kept beside [B-1]‘s house.

On the above mention date, place and time [B-1] was at his house when approached by the [A-1] and his team. [A-1] explained to [B-1] the reason for their present. [B-1] agreed to [A-1] explanation and search was conducted by the authority of the search warrant. Upon searching [B-1]’s house. [B-1] voluntarily inform [A-1] that [B-1] have planted some plant beside his house [B-1] lead [A-1] and his team, and showed [A-1] the plants which was in the wooden box beside his house there was 41 green plants believed to be marijuana. [B-1] was arrested the 41 green plants believed to be marijuana was seized by Emosi Nokonokovou, 38 years [A-2] Police Officer at Nausori Police Station. [A-2] then handed over the 41 green plants believed to be marijuana to CPL 4106 Waisea [A-3] Police Officer of Korovou Police Station. [A-3] handed over the 41 plants to the Crime Writer WPC 4501Mere [A-4] whereby it was kept in the exhibit room vide exhibit No. 153/06/17.

On the same day the 41 plants was tested by the Government Analyst Officer Miliana Warewaibuta [A-5] the plant was confirmed to be the cannabis sativa with the range of 3cm to 30 cm total weight of 149.7g. [B-1] was cautioned interview admitted the offence and charge for Unlawful Cultivation of Illicit Drugs. [B-1] is appearing in custody.

3. I am satisfied that your plea was made voluntarily after understanding the legal consequences and convict you for this charge.
4. The maximum penalty for Cultivation of Drugs is a fine not exceeding $1,000,000 or imprisonment for life or both.
5. In State v Dukubure [2017] FJHC 310; HAC076.2017 (28 April 2017) his Lordship Justice Perera said:

“ In the case of Tuidama v State [2016] FJHC 1027; HAA29.2016 (14 November 2016) this court decided to apply the following tariff for the offence of unlawful cultivation of illicit drugs;

1. The growing of a small number of plants for personal use by an offender on a non-commercial basis - 1 to 2 years imprisonment;
2. Small scale cultivation for a commercial purpose with the objective of deriving a profit - 3 to 7 years imprisonment;

100. Large scale commercial cultivation - 7 to 14 years imprisonment.
     

Cultivating up to 10 plants can be considered as non-commercial cultivation if there is no other evidence to the contrary. Cultivating more than 10 plants up to 100 plants can be considered as a small scale commercial cultivation and cultivating more than 100 plants can be considered as a large scale commercial cultivation.”

6. Based on the facts in this case, I find that you fall in to the second category with a sentencing range of 3-7 years imprisonment.
7. Considering the nature of offending and your culpability, I select 04 years as the starting point.
8. There are no aggravating factors and in your mitigation you submitted the following:
   1. 57 years old;
   2. Married with 3 children ;
   100. Working as a farmer.
9. Your last conviction was in 1994 and hence you need to be considered as a first offender.
10. For the above mitigating factors I deduct 01 year to reach 03 years imprisonment.
11. For pleading guilty at the earliest opportunity, I deduct 1/3 to reach 02 years imprisonment.
12. Even though this is below the accepted tariff, I have come to this based on the early guilty plea and other mitigating factors of the accused.
13. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
14. It is prevalent to see people cultivating Illicit Drugs in this area for commercial purpose. To deter these practices from continuing, the court has to hand over harsh sentences irrespective of hardships that would face by offenders and their families.
15. APOROSA NAWAQABULI, I sentence you to 02 years imprisonment for Unlawful Cultivation of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004 with a non-parole period of 01 year.
16. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate