State v Boleitamana [2012] FJHC 876; HAC334.2011 (17 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 334 of 2011

STATE

v.

KITIONE BOLEITAMANA

Date of Hearing: 07th February 2012

Date of Sentence: 17th February 2012

Counsel: Mr. Prasad Y for the State
Ms. Nawasakitoga N for Accused

SENTENCE

1. Kitione Boleitamana, you stand convicted on your own plea of guilty of the offence of Unlawful Cultivating Of Illicit Drugs, contrary to section 5 (a) of Illicit Drug Control Act.
   
2. Summary of facts you admitted are as follows:
   

On 15/02/2011, the Crime Officer of Levuka Police Station after a tip off went with his team of six police officers and uprooted 23 plants believed to be cannabis sativa from, a farm at Sinuda settlement.

The police team took the pictures of the farm and then uprooted the plants before bringing it to Levuka Police Station.

The plants uprooted then were sent to Fiji Forensic Laboratory in Koronivia to authenticate the police findings.

The government analyst confirmed that the 23 plants raided was cannabis sativa and weighed in total to 10.5kg. At the time of the police raid, the plants were measured to be from 25cm to 2.8 meters.

The farm police raided belong to the accused Kitione Boleitamana who admitted in his caution interview that he planted the cannabis sativa for commercial purpose in order to enable him to renovate his house.

The accused was charged for the offence of cultivating 10.5 kilograms of cannabis sativa contrary to section 5 (a) of illicit drugs control act of 2004.

3. In mitigation, Counsel submitted that you are 44 years of age with 4 children aged 6, 5, 4 years and youngest is 8 months old.
   
4. You are the sole bread winner of the family. Currently you are employed as a carpenter and handyman with a weekly salary of $120.00 which is sent to the family who live in Levuka.
   
5. Further the Court is informed by the Counsel that you planted this marijuana to use the income to buy raw materials to fix the roof of the house which was leaking.
   
6. I also consider that you have no previous convictions within the last 10 years.
   
7. The maximum punishment for this offence is life imprisonment or a fine not exceeding $1,000,000.00 or both. This shows how serious the legislature has considered this offence. The quantity of the illicit drug involved is 10.5kg, which is a large quantity.
   
8. You admitted in the summary of facts that you cultivated these illicit drugs for commercial purpose. Adults as well as children get addicted to these drugs and it has become a menace in Fiji.
   
9. Drug offending was divided into 3 categories in case of Meli Ba Vesi v State Criminal Appeal No. 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

The category most appropriate to this case is category 3 as the quantity cultivated is large which is 10.5 kg.

10. In case of State v Lose Helu HAC 034 of 2006S where the accused possessed 291.2 grams of cannabis sativa was sentenced to 18 months imprisonment where it was decided to be in the 2nd category of the above.
    
11. In case of Sekonaia Yabaki v State HAA 0025.2005 (13 May 2005) the sentence of 18 months was affirmed for having in possession of 19 cannabis cigarettes, total weight of 5.7 grams, which was decided to be in the 1st category of the above.
    
12. In case of State v Nateru FJHC 239; HAC004.2010 (9 July 2010) Hon. Justice Madigan sentenced the 1st Accused to 10 years imprisonment for cultivation of 2335 plants which weighed 455 kilograms.
    
13. I take 5 years of imprisonment, as the starting point. For your early guilty plea I reduce the sentence by 1½ years making a total of 3½ years.
    
14. The aggravating factors are that you cultivated these drugs for commercial purpose and the quantity is large which is 10 kilograms. However, as these aggravating factors reflect in the starting point, I will not add anything more.
    
15. For all the mitigating factors mentioned above including your previous good behavior, I deduct 5 months imprisonment and now your sentence is 3 years and 1 month. I further deduct 1 month considering your period in remand.
    
16. Therefore your final sentence is 3 years. It is not appropriate to give a non custodial sentence in this case. You are not eligible to be released on parole until you serve a minimum period of 2½ years.
    
17. 30 days to appeal.
    

Priyantha Fernando
JUDGE

At Suva
Friday 17th February 2012