State v Meloma [2010] FJHC 105; HAC024.2010 (1 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

HIGH COURT CRIMINALCASE NO: HAC 024 OF 2010
CRIMINAL CASE NO.: 45 OF 2009

BETWEEN:

STATE
PROSECUTION

AND:

TUI MELOMA
ACCSUED PERSON

Counsel: State - Ms. Ana Lomani
Accused Person - Ms. M. Lemaki (Legal Aid)

Date of Hearing: 30th April, 2010.
Date of Sentence: 1st April, 2010.

SENTENCE

Tui Meloma you were charged for the offence of being in possession without lawful authority of 2917.7 grams of illicit drugs namely cannabis sativa.

You pleaded guilty to the charge and after admitting the summary of facts you were convicted on your own plea of guilty.

Summary of facts you admitted are as follows:

On 14/12/2009 Police Officers raided your house at Naroi Village and found a bag of green leaves believed to be marijuana under a cupboard. You were then arrested for questioning. On 15/12/2009 you showed the Police the site you cultivate marijuana at Noavatu in Uciwai. On 17th December 2009 when you were interviewed under caution you admitted having being found in possession of marijuana and further you admitted harvesting the said marijuana on 12th December 2009 from Uciwai. Also you admitted cultivating marijuana since you left school.

The green leaves found in your possession were sent to Government Analyst and it was confirmed that it contained 2917.7 grams of cannabis sativa.

The legislature has decided that the maximum punishment for this offence to be a fine not exceeding $1000000 or imprisonment for life or both. This shows how seriously the legislature expects the court to approach the offence. Undoubtedly this large quantity is not for consumption by you but for commercial purposes. Further you have admitted that you cultivate same.

Illicit drugs especially marijuana has become a serious problem in Fiji and considerable number of people have become addicts.

Drug offenders are described into three categories in Meli Bavesi v The State Criminal Appeal HAA 027 of 2004.

Category 1 - The growing of a small number of cannabis plants for personal use by an offender or possession of small amount of cannabis coupled with "technical" supply of the drug to others on a non-commercial basis. First offender a short prison term, perhaps served in the community. Sentencing point 1 to 2 years.

Category 2 - Small scale cultivation of cannabis plants or possession for a commercial purpose with the object of deriving profit, circumstantial evidence of sale even on small scale commercial basis. The starting point for sentencing should generally be between 2 to 4 years. However, where sales are limited and infrequent and lowest starting point might be justified.

Category 3 - Reserved for the most serious classes of offending involving large scale commercial growing or possession of large amounts of drug usually with a considerable degree of sophistication, large numbers of sales, circumstantial or direct evidence of commercial involvement the starting point would generally be 5 to 6 years.

I am inclined to follow the guidelines given in this case. Based on the above facts I take 5 years of imprisonment as starting point.

The aggravating factors are the quantity of drugs and therefore the fact that those were for commercial purposes and for that you cultivate same. On these factors I increase your sentence by 3 years making a total of 8 years of imprisonment.

Counsel for defence made submissions on mitigation.

You are 22 years old, unmarried, your level of education, that you are a farmer, you hold the responsibility of supporting the family and that your family is really dependant on you.

For your early plea of guilty I reduce 32 months from your sentence making a total of 5 years and 4 months.

For all your above mitigating factors I reduce another 1 year and for your previous good behavior I give you another discount of 4 months.

Therefore finally you are ordered to serve 4 years of imprisonment forthwith.

Further I order the drugs be disposed of under the supervision of the Officer-in-charge of the High Court Registry within 7 days.

You have 30 days to appeal.

Priyantha Fernando
Puisne Judge
01/04/2010