State v Rabuka - Sentence [2015] FJHC 617; HAC017.2015LAB (27 August 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 017 OF 2015LAB

STATE

V

TOMASI RABUKA

Counsels : Ms. A. Vavadakua for State
Mr. P. Lomaloma for Accused

Hearings : 21 and 25 August, 2015
Sentence : 27 August, 2015

SENTENCE

1. On 21 August 2015, in the presence of your counsel, you pleading guilty to the following information:
   

Statement of Offence

UNLAWFUL CULTIVATION OF ILLICIT DRUGS: Contrary to section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

TOMASI RABUKA and AKUILA KUBOUTAWA between the 1st day of January 2015 and the 21st day of March 2015 at Viani Village, Savusavu in the Northern Division, without lawful authority cultivated illicit drugs namely Cannabis Sativa weighing 10.9 kilograms.

2. The prosecution then read the following summary of facts:
   

The First Accused in this matter is Tomasi Raikivi Rabuka who is charged with another for unlawful cultivation of illicit drugs in Savusavu, contrary to section 5 (a) of the Illicit Drugs Control Act 2004.

On the 21st day of March 2015, a team of Police Officers raided the house of the First Accused. They entered and searched the house of the First Accused with a search warrant. Thereafter, the First Accused then voluntarily led the Police Officers to his farm where he with another person had been cultivating plants believed to be marijuana.

When the First Accused Tomasi Raikivi Rabuka was Caution Interviewed by the Police on the 21st day of March 2015, he admitted to the Police freely and voluntarily that he was planting marijuana plants about 5 kilometres away from the village of Viani, at Nawasasali, Savusavu. He also admitted that the number of plants were about 148. He further admitted that he and another person had farmed marijuana plants on that piece of land and that this was the first time for him to plant marijuana.

That Police then uprooted a total of about 147 plants believed to be marijuana from that farm that was shown by the First Accused. The Police then sent these 147 plants to the Savusavu Police Station. The Police Station then had the plants analysed at the Fiji Police Forensic Laboratory where it was confirmed that the plants were indeed marijuana plants or cannabis sativa and that analysis Report dated 22nd March 2015 also confirmed that the plants weighed 10.9 kilograms.

3. The court then checked with your counsel on your behalf, to see whether or not you have admitted all the elements of the offence of "Unlawful Cultivation of Illicit Drugs", contrary to section 5 (a) of the Illicit Drugs Control Act 2004. On your behalf, your counsel admitted the above summary of facts. In particular, your counsel admitted on your behalf, that you cultivated 147 plants of cannabis sativa, weighing 10.9 kilograms, without lawful authority, on 21 March 2015, at Savusavu in the Northern Division. As a result of the above, the court found you guilty as charged, and convicted you accordingly.

4. "Unlawful cultivation of Illicit Drugs" is viewed seriously by Parliament, the representative of the people of this country. The evils of drugs had been highlighted in various publications. Parliament had prescribed a maximum sentence of life imprisonment, a $1,000,000 fine, or both (section 5 (a) of Illicit Drugs Control Act 2004), for those found guilty of the offence. On 31 May, 2012, in a majority judgment in the Court of Appeal, that is, Kini Sulua, Michael Ashley Chandra v The State, Criminal Appeal No. AAU 0093 and 0074 of 2008, a new sentencing guideline for those found cultivating more than 4 kilograms of cannabis sativa was set. The tariff was set between a sentence of 7 to 14 years imprisonment (category 4). The actual sentence will depend on the mitigating and aggravating factors.

5. The mitigating factors in this case were as follows:

(i) Although you pleaded guilty three months after first call in the High Court, you nevertheless saved the courts time;
(ii) At the age of 26, this was your first offence;
(iii) During the investigation, you co-operated fully with the police;
(iv) You had been remanded in custody since 24 March 2015, that is 5 months 3 day ago.

6. On the facts presented, there does not appear to be any aggravating factors.

7. In choosing a starting point, I must take on board the sentences issued in the two known cases of cannabis sativa offendings over 4 kilograms. The first was State v Sheik Mohammed, Criminal Case No. HAC 033 of 2008, Labasa High Court, where the accused was found with 4.8 kilograms of cannabis sativa. He got a sentence of 10 years imprisonment. The second was State v Kini Sulua, Criminal Case No. HAC 023 of 2008, Lautoka High Court. In this case, the accused had 5.2 kilogram of cannabis sativa. He got a sentence of 8 years imprisonment. In this case, the accused was found cultivating 10.9 kilograms of cannabis sativa, which appeared to be "double" the amount of cannabis sativa involved in the above two cases. I therefore start with a sentence of 14 years imprisonment.

8. For pleading guilty, I deduct 3 years. For being a first offender, I deduct another 1 year. For time already served for being remanded in custody, I deduct another 6 months. For co-operating with the police, I deduct another 6 months. Total deduction is 5 years. For the total 14 years imprisonment minus the total 5 years deduction, leaves a balance of 9 years imprisonment.

9. Mr. Tomasi Rabuka, for cultivating 10.9 kilograms of cannabis sativa plants on 21 March 2015 at Savusavu in the Northern Division, I sentence you to 9 years imprisonment, with a non-parole period of 6 years, effective forthwith. I cannot suspend any part of your sentence because a message ought to be sent out to the youths of Fiji not to cultivate illicit drugs.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : P.Lomaloma, Barristers & Solicitor, Labasa