State v Drose [2012] FJHC 1379; HAM 012.2012S (19 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

CRIMINAL REVIEW CASE NO. HAM 012 OF 2012S

STATE

vs

TANIELA DROSE

Counsel : Mr. S. Vodokisolomone for State
Accused in Person
Hearing : 1st October, 2012
Ruling : 19th October, 2012

RULING ON REVIEW OF SENTENCE

1. On the 11th February, 2012, you appeared in the Suva Magistrate Court on the following charge:
   

FIRST COUNT

Statement of Offence

UNLAWFUL CULTIVATING OF ILLICIT DRUGS: contrary to section 5(a) of Illicit Drugs Act, 2004.

Particulars of Offence

TANIELA DROSE on the 2nd day of February, 2012, at Rara Ni Yalo Farm, Namalata Village, Kadavu in the Eastern Division, without lawful authority, cultivated 121 plants weighing 421.4 grams of Cannabis Sativa, an Illicit Drug.

SECOND COUNT

Statement of Offence

UNLAWFUL CULTIVATING OF ILLICIT DRUGS: contrary to section 5(a) of Illicit Drug Act, 2004

Particulars of Offence

TANIELA DROSE, on the 2nd day of February, 2012, at Yadaku Farm, Namalata Village, Kadavu, in the Eastern Division without lawful authority, cultivated 50 plants weighing 4000 grams known as Cannabis Sativa, an Illicit Drug.

2. You waived your right to counsel. The charges were put to you. You said, you understood them. You pleaded guilty to both counts. The summary of facts were read to you by the prosecutor, on 27th June, 2012. You said, you understood the summary of facts, and you admitted them. In other words, you admitted the particulars of offence on both counts. The court found you guilty as charged on both counts, and convicted you accordingly. As far as your convictions were concerned, it cannot be faulted. The Learned Resident Magistrate followed the proper procedure and law, in convicting you.
   
3. As for your sentence, I have carefully read and considered the Learned Resident Magistrate's sentencing remarks. Meli Bavesi v The State, Criminal Appeal No. HAA 027 of 2004, High Court, Suva, should no longer be considered good law in the light of the majority decision in Kini Sulua, Michael Ashley Chandra v The State, Criminal Appeal No. AAU 0093 of 2008 and AAU 0074 of 2008, Fiji Court of Appeal. The Learned Resident Magistrate had correctly identified the four categories mention in AAU 0093 and 0074 of 2008. Count No. 1, in this case, is a category 2 case, with a tariff of between 1 to 3 years imprisonment. Count No. 2 is a category 3 case, with a tariff of between 3 to 7 years imprisonment.
   
4. I note the mitigating factors accepted by the Learned Resident Magistrate, that is, your guilty plea, you are a first offender, you are 27 years old and looking after your grandparent, you cooperated with police, you have been remanded in custody for 5 months and you are remorseful. The aggravating factors are as follows. You are obviously actively engage in cultivating Indian hemp plants in a large scale. You are the person that starts the drug cycle by doing the same. This is an aggravating factor.
   
5. Using my revisionary powers on count no.2, I start with 5 years imprisonment. I increase the same by 2 years for the aggravating factors to 7 years imprisonment. I decrease the same by 2 years for the mitigating factors, to 5 years imprisonment.
   
6. On count no. 1, using my revisionary powers, I start with 2 years imprisonment. For the aggravating factors, I increase the same by 1 year to 3 years imprisonment. I decrease the same by 2 years to 1 year imprisonment, for the mitigating factors.
   
7. On count no. 1, I sentence you to 1 year imprisonment. On count no. 2, I sentence you to 5 years imprisonment. Both sentences are consecutive to each other, that is a total sentence of 6 years imprisonment. I sentence you to 6 years imprisonment, with a non-parole period of 5 years imprisonment, effective from 29th June 2012. I order so accordingly.
   

Salesi Temo
JUDGE

Solicitor for State : Office of Director of Public Prosecution, Suva
Solicitor for Accused : In Person