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Republic v Folik [2021] KIHC 12; Criminal Case 51 of 2020 (25 November 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 51 OF 2020

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[ASESELE VAIELE FOLIK ACCUSED

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 5 November 2021
Date of Judgment: 25 November 2021

Counsel: Ms. Pauline Beiatau for the Republic

Mr. Taburuea Rubetaake for the Accused

SENTENCE DELIVERED BY HASTINGS CJ

1. Asesele Vaiele Folik, having pleaded guilty to one charge of possession of Indian hemp contrary to s 8(b) of the Dangerous Drugs Ordinance, and having accepted the revised summary of facts, I find you guilty and enter a conviction. You now appear for sentence. This charge carries a maximum penalty of 10 years’ imprisonment or a $2,000 fine.
   
2. The cannabis plant belonged to your half-brother Ioaba Tabwanou. It was no more than three inches high and growing in a tin milk container when he brought it to your aunty Biromina Vailele’s house. She watered it for almost a month without realizing it was cannabis. Ioaba then became ill and sadly died. By this time, Nei Biromina suspected the plant was cannabis. She was afraid to keep it. She gave it to you to because it belonged to your half-brother, and it was something to remember him by. You did not want to argue with your aunty, so you took the plant to your home. You knew it was Indian hemp. By this time it was about 30 cm high. You put it outside the front of your house facing the public road amongst some flowers. Three days later, the police arrived. They found the cannabis plant without any difficulty and charged you.
   
3. Ms Beiatau for the prosecution submitted that a custodial sentence was not warranted. Nevertheless, she submitted that “imposing an appropriate sentence will show the public that such plant is not allowed to be kept by anyone in the Republic of Kiribati and anyone in breach deserves some form of punishment.” She submitted a fine was the appropriate punishment.
   
4. Mr Rubetaake for the accused also submitted in Court that a fine was the appropriate sentence because the offending was at the lower end of the scale.
   
5. A fine of $300 was imposed by Ford J in Uaisele v Police,^[1] for offending that involved a small plastic bag of dried cannabis leaf that could not be weighed. The fact that the cannabis was purchased in a small plastic bag indicates an intention to use it. There is no evidence in your case that you intended to use any of the cannabis plant you kept in your front garden.
   
6. A fine in an amount not stated was imposed by Muria CJ in R v Kourabi^[2] for offending by a government fisheries officer who had been using cannabis for a month before he was charged. The judgment does not state how much cannabis was involved. In this case, you are not a government official abusing the public’s trust, nor is there any evidence you used the cannabis. In fact, Mr Rubetaake submitted that you have never used cannabis.
   
7. Your case is less serious than either Uaisele or Kourabi. There are two aggravating factors. The first is knowing what the plant was, you should have destroyed it. The second is that illegal drugs in the community cause harm. There are however a number of mitigating factors related to the offending:
   1. The offending involved one small plant, no more than 30 cm high when you took possession of it.
   2. There is no evidence of personal use or dealing.
   100. You made no effort to conceal it.
   4. It did not originate with you. You only took possession of it because of pressure from your aunty.
      
8. There are mitigating factors personal to you. You have no conviction history. You pleaded guilty at an early opportunity. You have three young daughters and a son. Your wife works as a school librarian. You work as a carpenter.
   
9. The sentence I impose must deter you and others from the same and similar offending, but it must also reflect the gravity of this offending which is at the lower end of the scale. Both principles can be achieved with a fine of $250.
   
10. You have until 31 December 2021 to pay the fine, in default of which you will be sentenced to prison for one month under s 30 of the Penal Code.
    

Dated 25^th day of November 2021

Hon William Kenneth Hastings

Chief Justice

^[1] Uaisele v Police [2001] Tonga LR 39.
^[2] R v Kourabi [2018] KIHC 20.