State v Lata [2013] FJHC 136; HAC83.2010 (25 March 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 83 OF 2010

BETWEEN:

STATE

AND

ROSHNI LATA

Counsel : Mr. T. Qalinauci for the State
Mr. Anil Singh for the Accused

Date of Judgment : 25 March 2013

SENTENCE

[1] The Accused above named is charged in one count of Possession of 1990.4 grams cocaine punishable under section 5(a) of the Illicit Drugs Act 2004.

[2] After the trial all 3 assessors unanimously found the Accused guilty. Being convinced with the evidence this court also found the Accused guilty to the charge and convicted for as charged.

[3] According to the available evidence the Police Drugs Unit received information that the Accused (convict) is dealing with drugs. When investigated it was found that the Accused kept the drugs at her ex maid's place. When the police came to the Accused she took them to the maid's house, brought the drugs out opened the padlock and showed them the drug parcels, police found 4 parcels. The Accused gave evidence in Court and said that she received 8 parcels initially. The maid gave evidence and said among other things that the Accused sent parcels from the black knapsack to Suva through Pacific Transport. It is noted that the Accused sent those parcels under the name of the maid. This shows that the Accused had knowledge of the content she was possessing.

Law:

[4] Section 5(a) of the Illicit Drugs Control Act, 2004 which carries a maximum penalty of fine not exceeding $1,000,000 or imprisonment for life or both.

Tariff:

[5] There are only two cases of cocaine which are tried under the Illicit Drugs Control Act, 2004 by the Fiji High Courts. However, there are no tariffs set in regards to hard drugs namely; cocaine. In the case, Suluva v State [2012] FJCA 33; AAU0093.2008 (31 May 2012), the Fiji Court of Appeal, states:

"Guidelines for dealers or personal users can be obtained from precedents within the mainstream common law jurisdictions. These are usefully set out and digested at Blackstone (2011) paragraph B19.109. These guidelines are in respect of possession and supply of Class A "hard" drugs such as heroin and cocaine".

[6] In State v Bravo [2008] FJHC 172; HAC 145.2007L (12 August 2008) the Court said:

"Cocaine is a powerful stimulant contained in the leaf of the coca plant. The dangerous effects of cocaine are enormous. Cocaine can be a lethal drug. It creates psychological dependency and addiction for the users".

[7] In another case, State v Balaggan [2012] FJHC, HAC049.11 (4 June 2012), Goundar J cited the case, R v Farlane [1992] 3 NZLR 424 which describe about the effects of cocaine:

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."

[8] In the World Drug Report 2012 provided by the United Nations Drug Office on Drugs and Crimes. 'At the global level, cocaine use is generally stable, with the number of estimated annual cocaine users in 2010 ranging from 13.3 million to 19.7 million, corresponding to 0.3-0.4 per cent of the global adult population (persons aged 15-64).

The report stated that 'heroin, cocaine and other drugs kill around 0.2 million people each year, shattering families and bringing misery to thousands of other people. Illicit drugs undermine economic and social development and contribute to crime, instability, insecurity and the spread of HIV'.

The report also noted about the emerging cocaine markets:

'Some data suggest that emerging and expanding markets for cocaine exist in subregions such as Eastern Europe, South East Asia and Oceania; while those markets are still small, they have growth potential and/or risk factors that favour an increase in cocaine use'.

In addition, to the report it also indicates that the usage of cocaine in the region is closer to home thus:

The major markets for cocaine continue to be in North America, Europe and Oceania (mainly Australia and New Zealand) ....Latest data from Australia show an increase in cocaine use.

The reports also discussed about people who are vulnerable are at a risk of substance abuse:

Children and adolescents who suffer from neglect, abuse, household dysfunction, exposure to violence and instability are at particular risk of substance abuse.

According to the World Drug Report 2010, the third largest cocaine market, in economic terms, is the Oceania region, worth an estimated US$6 billion due to very high retail prices.

[9] In State v Balaggan (2012) FJHC 1147 the Court used the starting point as 10 years imprisonment.

[10] As discussed above there is no tariff set out for these types of cases. Considering the sentencing principle in some of the jurisdictions, death sentence is mandatory. Some jurisdiction gives an option between death sentence and life imprisonment. Considering our tariff in similar sentence cases I am of the view when there is a possession, trafficking of commercial quantity the tariff should be between 15 years to 20 years.

[11] Considering the quantity of possession of cocaine (1990.4 grams) I commence your sentence at 17 years imprisonment.

[12] If a person murder another person it will cause the lost of a life, the family and few others will suffer but when the drugs are sent among the society there is large number of people especially the youth of our society were destroyed. Simply someone to make money destroying of many families in the society is unpardonable. I find this as an aggravating factor and increase your sentence by 4 years. Now your sentence is 21 years imprisonment.

[13] Mitigating Circumstances

1. You are a first offender;
2. You have a young daughter who is an asthmatic patient;

100. You submit you are willing to pay a fine of $10,000 instead of a custodial sentence;

4. You are religious and regularly attending church.
   

Considering all mitigating circumstance I reduce your sentence by 3 years now your sentence is 18 years imprisonment.

[14] Your counsel suggests several alternative methods of sentencing. Considering the gravity of the offence I do not find those are appropriate in this given circumstances. The Court should consider not only the interest of the Accused but also the best interest of the society at large.

[15] I act under Section 18(1) of the Sentencing and Penalties Decree and impose 16 years as non parole period.

[16] You are sentenced to 18 years imprisonment with 16 years non parole period.

[17] I would like to place on record the useful submissions filed by the State Counsel Mr. Timoci Qalinauci. I used some of these reference in this sentencing remarks.

[18] You have 30 days to appeal to Court of Appeal.

S. Thurairaja
Judge

At Lautoka

25 March 2013

Solicitors: The Office of the Director of Public Prosecution for the State
Anil J Singh Lawyers for the Accused