State v Draiva [2015] FJHC 194; HAC43.2014 (18 March 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 43 OF 2014

BETWEEN:

STATE

AND:

IOWANE APISAI DRAIVA,
TREVOR MERVYN TAMBLYN

Counsel : Mr. Singh. A. for State,
The First Accused is in person,
Ms. Malimali. B. for the Second Accused Person,

Date of Hearing : 3rd – 12th of March 2015
Date of Summing Up : 16th of March 2015,
Date of Judgment : 17th of March 2015,
Date of Sentence : 18th of March 2015.

SENTENCE

1. You, Iowane Apisai Draiva and Trevor Mervyn Tamblyn stand convicted for one count of Importation of Controlled Chemicals contrary to Section 6 (b) of the Illicit Drugs Control Act, ( hereinafter referred as The Act) which carries a maximum penalty of life imprisonment or fine not exceeding $ 1,00,000 or both.
   
2. Subsequent to the hearing of this charge and the majority guilty verdict of the three assessors for the first accused and the unanimous guilty verdict of the assessors for the second accused, the court found both of you are guilty and convicted for this offence of importation of controlled chemicals.
3. It was proved at the conclusion of the hearing that first and the second accused, acting in joint enterprise imported (pseudo) ephedrine into the country in a package pretending that it contains a bottle of Jonson & Jonson baby powder and toys. It was detected and tested by the custom officers at the Nadi Air Port. Subsequently the powder was tested by the Principle Scientific Officer and confirmed it contains (pseudo) ephedrine.
   
4. The learned counsel for second accused person submitted in mitigation that the court should not consider the general adverse impact of importation of illicit drugs into the country as an aggravating factor against the accused, which I concur with her. However, these factors are relevant and need to be considered in order to determine the purpose of sentencing the offender in this nature.
   
5. Every nation in the world vigilantly and jealously protect their borders and shores from the intrusion of illicit drugs and chemicals in to their lands as it can adversely and negatively affect the people, social structure and also the economic progress of the nation. The Illicit Drugs Control Act reflects the Fiji's intention of protecting its border and shores from this menace of illicit drugs and chemicals.
   
6. Accordingly, the main purpose of sentencing the offenders under the Illicit Drugs Control Act must be founded on the principles of deterrence and the protection of the community in order to deter the offenders and other persons from committing offences of this nature. I am mindful of the principle of rehabilitation, however the court must give priority to the principles of the deterrence and protection of the community in order to demonstrate that society denounce the committing of the offences in this nature without any reservation.
   
7. The learned counsel for the second accused invited the court to consider the sentencing guideline set out by Justice Temo in Kini Sulua and Michael Ashley Chandra v The State ( 2012) FJCA 33; AAU0093.2008 (31 May 2012).
   
8. Justice Temo in Sulua has discussed the impact of marijuana and cannabis and set down guideline for tariff for the possession of cannabis under section 5 (a) of the Illicit Drugs Control Act. His Lordship then extended the application of these guideline not only for the possession, but also for acquires, supplies, produce, manufactures, cultivates, uses, or administers of illicit drugs. Justice Temo further held that "the weight of the particular drugs will determine which category the case falls under, and the applicable penalty will apply". His lordship then extended the application of these guidelines to the offences under section 5 (b) of the Act as well.
   
9. However, it appears that the offences under section 6 of the Act constitute two main components. The first is that imports, exports, manufactures, possesses or supplies of any controlled chemical without lawful authority. The second component is the knowledge or the recklessness of the person who exports, manufactures, possesses or supplies such controlled chemical that the chemical will use or for the commission of an offence under section 5 of the Act.
   
10. Accordingly, the composition of the offences under section 6 is different to the offence stipulated under section 5 of the Act. Wherefore, it is my opinion that the tariff guidelines set out by Justice Temo in Sulua are not directly applicable to the offences under section 6 of the Act. This opinion of mine is not only founded on the different composition of the offences under section 6, but also on the sentencing remarks of Justice Kumarathnam in The State v Isikeli Tamani and Amena Aribulu [2013] FJHC 512; HAC059.2011 (4 October 2013). Justice Kumarathnam in Tamani having discussed relevant sentencing policy, took 8 years as his starting point for an offence of importation of controlled chemicals namely pseudo ephedrine hydrochloride weighting approximately 2. 680 kg contrary to section 6 (b) of the Illicit Drugs Control Act.
    
11. I do concur with the observation made by Justice Temo in Sulua where his lordship held that the weight of the particular illicit drug should determine the applicable tariff and the penalty for it. Justice Goundar in State v Balaggan ( 2012] FJHC 1147; HAC049.11 (4 June 2012) has discussed the applicable approach of determining the starting point in sentencing, where his lordship stated that;
    

"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".

12. Having considered the above discussed principles, the serious nature of this offence and the weight of the illicit controlled chemical involved in this action, I select 4 years as my starting point.
    
13. I now turn to the aggravating factors. It was proved during the hearing that you have acted in joint enterprise and planned this offence. It is true that each of you may have played different roles and parts in planning and committing this offence, but since you have acted in join enterprise both of your criminal culpabilities in this crime are equally same. The illicit chemical was concealed in a baby powder bottle and sent with five miniature toys in order to divert the suspicion of the officers. By committing this offence, both of you have demonstrated that you have no respect to the law and order of this country.
    
14. The first accused extended his apology and remorse during his mitigation submissions. He stated that his family and his reputation have been shattered after this incident. Pastor Ilaisa Tamata stated in court that first accused person is a devoted and religious person and he can be trusted. He got two young daughters and his family now resides with his wife's sister in Suva.
    
15. The second accused person is 69 years old and he is suffering from many health conditions. He is presently under medication. He got eight children and younger four of them have been taken away by the State due to his incarceration in this case. The learned counsel of the second accused person submitted that the second accused also expresses his remorse and apology.
    
16. Having considered the above mentioned aggravating factors, I increase 2 years to reach 6 years of interim imprisonment period. In considering the mitigating factors which I discussed above, I reduce 1 year to reach the final sentence of 5 years for the offence. I reduce further 12 months for the second accused person considering the 12 months of his remand period prior to the sentencing.
    
17. Accordingly, Mr. Iowane Apisai Draiva, I sentence you five (5) years of imprisonment period for the offence of Importation of Controlled Chemicals contrary to section 6 (b) of the Illicit Drugs Control Act, 2004.
    
18. Mr. Trevor Mervyn Tamblyn, I sentence you four (4) years of imprisonment period for the offence of Importation of Controlled Chemicals contrary to section 6 (b) of the Illicit Drugs Control Act, 2004. Both of you are not eligible for parole for a period of 3 years pursuant to section 18 (1) of the Sentencing and Penalties Decree.
    
19. 30 days to appeal to Court of Appeal.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka

18th of March 2015

Solicitors : Office of the Director of Public Prosecutions
The first accused person,
Pacific Chambers, Counsel for the second accused person.