State v Mohammed [2009] FJHC 227; HAC033.2009 (15 October 2009)

IN THE HIGH COURT OF FIJI
HELD AT LABASA

Criminal Jurisdiction Criminal Case No 33 of 2009.

BETWEEN

The State
Applicant

AND

Sheik Mohammed (f/n Sheik Hussain)
Accused

Mr T Muloilagi & Mr M Kaisamy for the State
Mr A.K. Singh for the Accused.

Date of Sentence: 15 October, 2009

SENTENCE

1. You have been found guilty by the unanimous decision of the three assessors and this Court of one offence of possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Control Act no 9 of 2004. The particulars of the offence are that on the 6th day of June 2008 at Natua, Seaqaqa in the Northern Division you possessed without lawful authority 4,833.7 grammes of cannabis sativa.

2. Evidence heard in your trial and which evidence the assessors obviously believed was that you arranged for your truck to be driven from Suva to your garage in Labasa by an accomplice. You had made two channels underneath the truck which you stuffed with wrapped parcels of cannabis leaves and then welded them closed. You told the Police under caution that you had bought the drugs for $4,000 and that you were sending them to Labasa to be sold.

3. Very fortunately for the people of Vanua Levu this shipment was intercepted at Seaqaqa and the police found the drugs exactly where and how you had described them in your statement.

Mitigation

4. Your counsel tells me that you are 40 years of age with two baby daughters. You have a mother who is terminally ill in CWM Hospital. You have a very long list of previous convictions, with nothing similar, but fortunately for you there is nothing in the last 10 years so you have the benefit of a "technical" clear record.

5. Your counsel urges me to fine you as opposed to sending you to prison. However in a case as serious as this a fine is not appropriate, nor does he tell me how much you would be able to pay. He urges me to consider the present policy in place of rehabilitation when passing sentence on you.

6. He made an impassioned and eloquent plea with reference to the effect on your "poor" mother and your two baby daughters who will suffer on your incarceration.

Analysis

7. This is an offence of the utmost severity. You have admitted being part of a plan to transport a very large quantity of drugs from the drug fields of Viti Levu to Macuata. These drugs would be sold for profit, probably to the young people of this region and would in turn lead to violence and behaviour which this community should not have to tolerate.

8. There is evidence from the media in Fiji that illicit drugs are becoming an ever increasing problem and a message must be sent to those involved that the Courts will no longer extend mercy to convicts.
Although it is quite important that you be sentenced only for the crime for which you are convicted (possession), it is open to me to consider the scale, circumstances and size of the seizure.

9. You have gone to great lengths to plan this shipment by buying drugs, buying your sister’s vehicle, hiding the drugs in concealed channels and having another drive it to your garage in Labasa. The drugs contained in 19 packages amount to 4.8kg which is one of the largest seizures in Fiji to date. I regard this sophisticated planning as a very serious aggravating feature in your case.

10. On top of that you have shown not one shred of remorse. Your counsel did not refer to remorse and your demeanour in Court up until now belies any remorse on your part.

11. The circumstances of your daughters and your mother are irrelevant. While the Court has sympathy for your family circumstances, it has been often said that they can not be factors to consider in sentencing. It is perhaps something you should have considered before embarking on this nefarious project.

12. The legislature have obviously considered this to be a very serious offence by imposing a maximum term of imprisonment of life imprisonment or a fine of $1,000,000. The Courts must defer to Parliament’s will and pass sentences which reflect that severity.

13. In the case of State v Kini Sulua [2008]FJHC182, Goundar J. passed a sentence of 8 years on the convict who was in possession of 5203 gms of marijuana. He had got on board a public vehicle travelling to Sigatoka when apprehended with the sack of leaves. That case can be distinguished from the present case in that there was no degree of sophistication of planning even though the drugs seized were a little more than you possessed.

Sentence.

14. Considering the amount of drugs you were found to be in possession of, I take a starting point of 9 years. For your "technical" clear record I deduct from that 1 year. There are serious aggravating features in your case. There was a degree of sophisticated planning involved, there was the attempt to profit by this shipment and there was the latent risk to the people of the Northern District being supplied from Viti Levu. For these aggravating factors, I add two years, making a total term of imprisonment you will serve to be 10 years.

15. That is the Judgment of the Court.

16. I order that the drugs be photographed and destroyed within 14 days and that State Counsel file a report to that effect.

P.K. Madigan
Judge

Dated: 15/10/09
At Labasa