State v Yunus [2011] FJHC 700; HAC012.2010 (28 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 012 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

MOHAMMED YUNUS
ACCUSED PERSON

Counsel: Ms. Lomani and Ms. Tikoisuva for the State
Mr. I Khan for the Accused

Dates of Hearing: 19th, 20th and 21st October 2011

Date of Summing Up: 24th October 2011

Date of Judgment: 25th October 2011

Date of Sentence: 28th October 2011

SENTENCE

1. The accused, Mohammed Yunus, you have been convicted for being in possession without lawful authority 5.7 kg of cannabis an illicit drug.
   
2. On the request of your uncle Mohammed Sheik, you agreed to carry the suitcase containing the illegal drugs from the vehicle at the Narayan Jetty to the Sullivan ship. As you entered the ship carrying the suitcase, the police officer arrested you with the drugs.
   
3. Undoubtedly this large quantity of drugs is not for consumption by you, but for commercial sale. Consuming Marijuana has become a serious threat to the society especially to the young generation. The punishment to this offence should reflect the denouncement of this court for this public menace. A further aggravating factor is that you carried the bag containing drugs to the ship for your uncle, so that police apprehension could be avoided.
   
4. Your mitigating factors submitted by counsel are, that you are 29 years of age and you are a first offender. You are married with 3 children aged 7 years, 3 years, and 9 months. You are a "Maulavi" in the mosque and also you work as a teacher. You earn $150 - $200 per week as a taxi driver and you are the sole bread winner of the family. You are remorseful.
   
5. As per section 5(a) of the Illicit Drugs Control Act, the maximum punishment for the offence of unlawful possession of illicit drugs is, a fine not exceeding $100,000 or imprisonment for life or both.
   
6. In case of Ravesi v. State [2007] FJHC 93; HAA 0027. 2004 (14 August 2004), referring to the categorization of offences in case of R v Tarawa: (1999) 3NZLR 62, giving concern to the offenders degree of involvement divided the offending to 3 categories. They are:
   
   1. Category 1 – The growing of a small number of cannabis plants for personal use by an offender or possession of a 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 to 1 to 2 years.
      
   2. Category 2 – Small scale cultivation of cannabis plants or possession for a commercial purpose with the objective 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.
      
   3. Category 3 – Reserved for the most serious cases of offending involving large scale commercial growing or possession of large amounts of drug usually with a considerable degree of sophistication, large number of sales, circumstantial or direct evidence of commercial involvement the starting point would generally be 5 to 6 years.
      

In this case the quantity of drugs involved is a large quantity being 5.7 kilograms.

7. In State v. Kini Sulua HAC 023 of 2008 where the accused was convicted for possession of 5.2 kg and where the accused was 33 years of age married with 2 children aged 1 month and 3 years, without previous convictions was sentenced to 8 years imprisonment.
   
8. In this case, I also consider that your involvement was only to carry the bag containing drugs from the car to the ship for your uncle Mohammed Sheik.
   
9. I take 5 years as the starting point. Add another 3 years for the aggravating factors making the total to 8 years. For all your mitigating factors including that you are a 1st offender I reduce 3 years, making the final sentence of 5 years imprisonment.
   
10. Considering the circumstances of this case and your involvement in possessing the drugs, I order a non parole period of 4 years, during which period you are not eligible to be released on parole.
    
11. Your sentence is 5 years imprisonment with a non-parole period of 4 years.
    

Priyantha Fernando
Judge

At Suva
28th October 2011