State v Dabea [2012] FJHC 1380; HAM 013 of 2012S (19 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

CRIMINAL REVIEW CASE NO. HAM 013 OF 2012S

STATE

vs

1. PAULA DABEA
2. OSEVATI LEVA
   

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

RULING ON REVIEW OF SENTENCE

1. In reviewing your cases, I am only concerned with count no. 1, wherein you two were charged with the following offence:
   

FIRST COUNT

Statement of Offence

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

Particulars of Offence

PAULA DABEA and OSEVATI LEVA, on the 4th day of February, 2012 at Natumaidaku Farm, Namalata Village, Kadavu in the Eastern Division, without lawful authority, cultivated 133 plants weighing 2521.7 grams of Cannabis Sativa, an Illicit Drug.

2. On 11th February 2012, both of you appeared in the Suva Magistrate Court. You both waived your right to counsel. The charge was put to you two. You both pleaded guilty to count no. 1. The summary of facts were read to you two on 17th May 2012. You both admitted unlawfully cultivating 133 plants, weighing 2,521.7 grams of cannabis sativa. In other words, you both admitted the particulars of offence. The court found you two guilty, and convicted both of you, on count no.1.
   
3. In sentencing you two on count no. 1, the Learned Resident Magistrate correctly referred to the binding majority decision in Kini Sulua, Michael Ashley Chandra v The State, Criminal Case No. AAU 0093 of 2008 and AAU 0074 of 2008, Fiji Court of Appeal. The Learned Resident Magistrate correctly identified the four categories mentioned in the above case. Since you were both found guilty of cultivating illicit drug plants weighing 2,521.7 grams of cannabis sativa, your case is a category 3 type case, with a tariff of 3 to 7 years imprisonment.
   
4. I have carefully considered the Learned Resident Magistrate's sentencing remarks. I agree with the mitigating and aggravating factors he mentioned in his remarks. But the final sentence of 43 months imprisonment, with a non-parole period of 23 months defeats the deterrent effect of the sentence in count no.1. The offence is a serious matter in our community, and a corresponding sentence must be given as a warning to would-be offenders. Drugs are a menace to our society, and those who deliberately deal with the matter, must expect severe sentence, in an effort to protect the community.
   
5. Using my revisionary powers under the Criminal Procedure Decree 2009, I agree with the Learned Resident Magistrate starting sentence of 5 years imprisonment. I would add 2 years for the aggravating factors making a total sentence of 7 years imprisonment. For all the mitigating factors, I would deduct 3 years, leaving a balance of 4 years. I would sentence both accuseds to 4 years imprisonment on count no. 1, with a non-parole period of 3 years imprisonment.
   
6. The sentence in the Magistrate Court on count no. 1 is quashed and set aside. In substitution thereof, I sentence both accuseds to 4 years imprisonment, with a non-parole period of 3 years imprisonment, effective from 27th June 2012. The above sentence is concurrent to the Magistrate Court's sentence in count no. 2. I order so accordingly.
   

Salesi Temo
JUDGE

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