State v Balaggan - Sentence [2012] FJHC 1147; HAC049.11 (4 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 049 of 2011 (Ltka)

STATE

v.

1. MUSKAN BALAGGAN
2. ELTON XHEMALI

Hearing Dates: 21 – 31 May 2012
Summing Up: 31 May 2012
Judgment: 1 June 2012
Sentence: 4 June 2012

SENTENCE

[1] Muskan Balaggan and Elton Xhemali, after trial, were convicted of attempt to export an illicit drug, namely cocaine, contrary to sections 4 and 9 of the Illicit Drugs Control Act 2004. Balaggan was convicted of an additional charge of unlawful possession of the same illicit drug, contrary to section 5(a) of the Illicit Drugs Control Act 2004. I use the attempt to export an illicit drug as the principal offence for sentencing.

[2] The facts as revealed by evidence led by the State at the trial show the offence was well planned and organized. It was a sophisticated crime. Xhemali arrived in Fiji on 12 January 2011 using an American passport. A day earlier, a reservation was made for him to stay at the Hexagon International Hotel, Nadi. He checked into the hotel on the same day he arrived in the country. Twelve days later, on 24 January 2011, he informed the hotel manager that he was expecting to meet an Indian girl who was supposed to arrive on that day.

[3] As expected by Xhemali, Balaggan arrived in Fiji on 24 January 2011 using an Indian passport from Melbourne, Australia. She checked into the hotel on the same afternoon. When she arrived at the hotel Xhemali came down to the reception and paid for her room with cash.

[4] Balaggan was scheduled to depart Fiji on 25 January 2011, but instead, she changed her departure date to 26 January 2011. Later on the same afternoon, Xhemali booked himself on the same flight as Balaggan.

[5] On 26 January 2011, Balaggan and Xhemali checked out of the hotel together, but they travelled in separate taxis to Nadi International Airport, to avoid any suspicion. The association between Balaggan and Xhemali at the hotel was part of their common plan to take an illicit drug from Fiji to Australia. He was the facilitator and she was the courier.

[6] By 26 January 2011, the authorities in Fiji had been tipped off about Balaggan. After Balaggan had checked in her luggage, she was detained by the customs officers. Her bag was searched and seized.

[7] The clothes inside Balaggan's bag were soaked with crystal like residues. The substance was extracted and tested in Australia. The tests revealed presence of minimum 521.6 grams of pure cocaine.

[8] In the drugs world, cocaine is classified as the "rich man's speed". Cocaine is administered either by snorting or injecting. In R v Farlane [1992] 3 NZLR 424, Cooke P in delivering the judgment of the New Court of Appeal stated the effects of cocaine use at p.426:

"An effect of the drug is rapid and intense but short-lived euphoria, which may be followed by a 'crack' with severe depressions and paranoia. In turn a craving for and psychological dependence on the drug may arise. Regular users face increased risks of heart attacks and strokes from bleeding into the brain resulting from high blood pressure. Among pregnant woman who use cocaine there is a high incidence of miscarriages and their babies may have cocaine related disorders. Hallucinations, as of insects crawling under the skin, occur in heavy users."

[9] Further on at p.426, Cooke P went on to say:

"Addicts spend heavily to obtain their weekly supplies and sometimes are driven to crime to support their habit. The high profits also attract criminal elements....In addition to the social dangers of increased cocaine use, there is the cost to the community of detection and enforcement measures."

[10] The modern approach to sentencing uses as a reference point a starting point on an objective seriousness of the offence. Upward and downward adjustment is then made to the starting term to take into account aggravating and mitigating features of the offending.

[11] To my knowledge, this is the second case of cocaine that has been brought before the court under the Illicit Drugs Control Act 2004. In State v Bravo FJHC 172; HAC 145.2007L (12 August 2008), this Court imposed a sentence of 8 years' imprisonment for importing 2kg of cocaine (73.1% purity) on a 46 year-old woman, after trial. She appealed her sentence to the Court of Appeal. In refusing her leave to appeal, Powell JA said at paragraph 11:

"Not only would an appeal be bound to fail there would be a real risk that a cross-appeal on sentence would see the sentence increased." (Bravo v State FJCA 72; AAU0094.2008S (5 November 2008)

[12] The two other drug trafficking cases in Fiji were under the old law.

[13] The first is the infamous Christina Doreen Skipper's case (Skipper v Reginam [1979] FJCA 6; Criminal Appeal No. 70 of 1978 (29 March 1979). On 20 July 1978, Skipper flew into Fiji from Singapore with two suitcases. When the customs officers searched her bags at Nadi International Airport, they found 4.4lbs of heroin and 44lbs of Indian hemp. Skipper was charged for importing Indian hemp and heroin under the Dangerous Drugs Ordinance, Cap. 95 (now repealed). After a trial in the Magistrates' Court, Skipper was convicted and sentenced to 4 years' imprisonment for importing heroin and 1 year for importing Indian hemp. The sentences were made consecutive and therefore the total sentence was 5 years' imprisonment.

[14] In State v Wong Kam Hong & anr. [2002] FJHC 273; Criminal Case 2.2001 (8 February 2002), Fatiaki J (as he then was) sentenced the principal offender to a total sentence of 12 years' imprisonment for importing heroin, being in possession of heroin and attempting to export heroin (to Australia) under the Dangerous Drugs Act (now repealed). In that case, the quantity of heroin was in access of 300kg with an average purity of 70%. The maximum penalty that was available under the Act was 8 years imprisonment for each offence. Regarding the maximum penalty, Fatiaki J said at p. 3:

"On that basis there is much to be said about the urgent need in this country for our legislators to consider the existing penalties for offences involving Part V drugs which include 'morphine' and 'cocaine'."

[15] The Illicit Drugs Control Act 2004 was enacted in response to the concerns regarding the inadequate penalties for hard drugs. The new Act, albeit, not perfect, has increased the penalties for hard drugs, significantly.

[16] Under the Illicit Drugs Control Act 2004, the maximum penalty for an attempt to export cocaine is 14 years imprisonment or a fine of $500,000.00 or both. Sentencing guideline cases from other jurisdictions are not helpful because they have different sentencing regimes. But, one principle is common in the English, Australian and New Zealand cases, that is, those who deal in hard drugs in substantial quantities must expect to be punished harshly.

[17] When sentencing drug-smugglers, regard must be made to the circumstances that exist in Fiji. Fiji does not have a sophisticated intelligence service to detect drug-smuggling. Our boarder security measures are not apt to deal with sophisticated drug-smuggling. Unless there is a tip off, it is easy to sneak in and out, hard drugs. In all cases, the hard drugs were for the overseas market. So Fiji is just being used by the drug-smugglers as a transit point for the reasons I have mentioned. Any punishment for dealing in hard drugs must therefore reflect the vulnerability of Fiji becoming a hub for the international drug-smugglers.

[18] Half a kilo of pure cocaine is a significant amount. Depending on the percentage purity, the market value of the drugs would be between A$200,000.00 to A$500,000.00. The offence was committed with a high degree of planning and sophistication. These features aggravated the offending.

[19] In assessing their culpability, I draw no distinction between the roles played by Balaggan and Xhemali. Both were acting in concert as couriers. I have been told that both are first time offenders. At the time of the offending, Balaggan was 20 years old and Xhemali was 26 years old.

[20] In Aramah (1983) 76 Cr.App.R.190, the English Court of Appeal remarked that the good character of a courier, as he usually was, is of less importance than the good character of an accused in other cases. The Court took the view that drug-smuggling organizers deliberately recruit persons who will exercise the sympathy of the court. The point the Court makes is that the personal circumstances of an accused are secondary because of the deterrent element to sentences imposed in respect of drug-smuggling offences.

[21] I use 10 years imprisonment as my starting point based on an objective seriousness of the offence of an attempt to export cocaine.

[22] I increase the sentence by 4 years to take into account the aggravating features. I make a downward adjustment by 2 years to reflect the offenders' previous good character and personal circumstances.

[23] In this case, Balaggan has spent time in custody on remand from 26 January 2011 (date of arrest) to 11 February 2011 (date bail granted) and from 19 August 2011 (date bail revoked) to 29 September 2011 (date Balaggan became a serving prisoner in another case). Balaggan's total remand period is two months. Xhemali has been in custody on remand since 26 January 2011. His total remand period is 16 months. I take these into account. The disparity in sentences will be due to the different length of remand periods applicable to the offenders.

[24] On each count, I sentence Balaggan to 11½ years' imprisonment with a non parole period of 9 years, to be served concurrently. Balaggan is serving a sentence of 18 months imprisonment for an offence that she committed while she was on bail in this case. That sentence was imposed on 29 September 2011. If I make her pre-existing sentence concurrent, her total sentence for two separate offences would be almost the same as the sentence imposed on Xhemali for one offence, after taking into account his remand period. It would be wrong in principle and also unfair to Xhemali, if Balaggan's pre-existing sentence is made concurrent. In my judgment, a total term of 13 years imprisonment for two separate offences does not offend the totality principle. The sentence in this case is to be served consecutively with the pre-existing sentence.

[25] For an attempt to export an illicit drug as convicted on count 1, I sentence Xhemali to 10 years imprisonment with a non-parole period of 8 years.

Daniel Goundar
JUDGE

At Suva
4 June 2012

Solicitors:
Office of the Director of Public Prosecutions for State
1st Accused in person
Office of Mamlakah Lawyers for 2nd Accused