State v Nandan - Sentence [2016] FJHC 133; HAC31.2012 (1 March 2016)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 31 of 2012

STATE

V

1) ARNOLD VILASH NANDAN

2) VIMLESH CHAND

Counsel : Mr. S. Vodokisolomone & Ms. S. Tamanikayaroi for the State
Ms. L. Lagilevu and Mr. E. Radio for 1st Accused
Ms. S. Vaniqi for 2nd Accused
Dates of Hearing : 11th February – 19th February 2016
Date of Summing Up : 24th February 2016
Date of Judgment : 26th February 2016
Date of Sentence : 01st March 2016

SENTENCE

1. The first accused stands convicted of being in possession of an illicit drug, namely cannabis sativa contrary to section 5(a) of the Illicit Drugs Control Act 2004. According to the evidence led in this case the weight of the drugs found in his possession was 6430.7 grams.
   
2. The second accused was convicted of being in possession of 4.1 kilograms of cannabis sativa contrary to section 5(a) of the Illicit Drugs Control Act 2004.
   
3. The maximum penalty stipulated under section 5 of the Illicit Drugs Control Act 2004, is a fine not exceeding $1,000,000 or imprisonment for life or both.
   
4. Both the prosecution and the defence highlighted the judgment in the case of Sulua v State [2012] FJCA 33 as the guideline judgment to be followed in sentencing offenders for the possession of cannabis sativa.
   
5. It is pertinent to note that the aforementioned judgment identifies four categories based on the weight of the drugs involved. The 4th category which prescribes an imprisonment term between 7 – 14 years applies when the weight of the drugs involved is above 4 kilograms.
   
6. Upon a search conducted inside a room occupied by the 1st accused at No. 67, Shalimar Street Samabula, two twenty litre yellow drums and a yellow bag filled with cannabis sativa were seized by the police on 13th December 2011. The weight of the drugs found inside those containers was 6430.7 grams.
   
7. I consider the offence of being in possession of 4 kilograms of cannabis sativa is a serious offence which should attract a starting point of 7 years in light of Sulua v State (supra).
   
8. Since the total weight of cannabis sativa found in the possession of the 1st accused is 6.4 kilograms, I commence the sentence of the 1st accused with an imprisonment term of 7 years and 6 months.
   
9. I cannot discern any aggravating factor from the evidence presented in this case or from the submissions made by the prosecution which would not overlap with the factors I considered to select the starting point. Since I have used the weight of cannabis sativa found in the possession of the 1st accused to select the starting point, I cannot again consider the fact that the quantity of drugs seized was large as an aggravating factor as pointed out by the prosecution in their sentencing submission.
   
10. In mitigation, the following were highlighted by the counsel for the 1st accused;
    
    1. The 1st accused is 37 years old who is currently a livestock farmer;
    2. He supports his 72 year old sick mother;
    100. His de facto partner is two months pregnant and he supports her two children where one of them is mentally challenged;
    4. He is remorseful;
    5. No previous convictions.
       
11. I accept the above as mitigating factors and would accordingly deduct 2 years in view of those factors.
    
12. The evidence lead in this case revealed that the 1st accused cooperated with the police. Even during the trial he assisted to narrow down the issues for the trial by admitting all the other elements except 'possession'. Further, the 1st accused was arrested for this offence in December 2011 and therefore he has been grappling with this case for more than 4 years before the conviction.
    
13. I would consider the above factors as further mitigating circumstances and would deduct a further 18 months on account of same.
    
14. Arnold Vilash Nandan, I hereby sentence you for an imprisonment term of 4 years. I order that you are not eligible to be released on parole until you serve 30 months of that sentence pursuant to the provisions of section 18 of the Sentencing and Penalties Decree 2009.
    
15. Section 24 of the Sentencing and the Penalties Decree reads thus;
    

"If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender."

16. It was brought to my notice that you have spent 73 days in remand since you were arrested in relation to this case on 13th December 2011 and further 4 days after conviction. The period you were in custody shall be regarded as a period of imprisonment already served by you pertaining to the sentence imposed on you in this case. I hold that the period to be considered as served should be 3 months.
    
17. Accordingly the time remaining to be served by you is 3 years and 9 months and the remaining non-parole period is 27 months.
    
18. Further, in view of the provisions of section 5 of the Illicit Drugs Control Act 2004, I consider that a fine should also be imposed.
    
19. It was submitted by your counsel that you have the means to pay a fine of $10,000 - $15,000. Considering the above, I order you to pay a fine of $ 3000. I find that you have the means to pay that amount.
    
20. Now I turn to consider the sentence for the 2nd accused.
    
21. The 2nd accused was found with two bags containing 4.1 kilograms of cannabis sativa on 13th December 2011.
    
22. I pick an imprisonment term of 7 years as the starting point.
    
23. For the same reasons stated in paragraph 09 above, I do not find any other aggravating factor concerning the offence committed by the 2nd accused apart from what I considered to select the starting point.
    
24. In mitigation on behalf of the 2nd accused, the following were highlighted by his counsel;
    
    1. He is 42 years old, single and is employed as a labourer/ fisherman;
    2. He is a first offender;
    100. He looks after his 72 year old mother who is having a heart condition and he is responsible for taking her for the monthly medical reviews;
    4. He also supports his two unemployed brothers;
    5. He had to live with uncertainty and his life was on hold since December 2011 while he awaited the trial in this case;
    6. He is involved with charity work;
       
25. On the issue whether the 2nd accused can be considered a first offender, the prosecution admits that the 2nd accused does not have any relevant previous convictions.
    
26. According to the evidence, the 2nd accused also had cooperated with the police. He also assisted in narrowing down the issues in the trial against him by admitting all elements except 'possession'. Therefore, I consider all these factors as mitigating circumstances and would accordingly deduct 3 years.
    
27. Vimlesh Chand, I hereby sentence you for an imprisonment term of 4 years. I order that you are not eligible to be released on parole until you serve 30 months of that sentence pursuant to the provisions of section 18 of the Sentencing and Penalties Decree 2009.
    
28. It was brought to my notice that you have spent 73 days in remand since you were arrested in relation to this case on 13th December 2011 and further 4 days after conviction. Pursuant to section 24 of the Sentencing and Penalties Decree, the period you were in custody shall be regarded as a period of imprisonment already served by you pertaining to the sentence imposed on you in this case. I hold that the period to be considered as served should be 3 months.
    
29. Accordingly the time remaining to be served by you is, 3 years and 9 months and the remaining non-parole period is 27 months.
    
30. Further, in view of the provisions of section 5 of the Illicit Drugs Control Act 2004, I consider that a fine should also be imposed against you.
    
31. It was submitted by your counsel that you have the means to pay a fine of $5000. Considering the above, I order you to pay a fine of $ 2000. I find that you have the means to pay that amount.
    
32. In the result;
    
    1. A fine of $3000 is imposed against the first accused and he is also sentenced to 4 years imprisonment with a non-parole period of 30 months;
       

In view of the period spent in remand, the time remaining to be served by the first accused is;

Head Sentence - 3 years and 9 months

Non-parole period - 27 months

2. A fine of $2000 is imposed against the second accused and he is also sentenced for 4 years imprisonment with a non-parole period of 30 months;
   

In view of the period spent in remand, the time remaining to be served by the second accused is;

Head Sentence - 3 years and 9 months

Non-parole period - 27 months

33. I further order that the cannabis sativa seized by the police pertaining to this case to be destroyed by the police at the expiry of the appeal period.
    
34. Both accused to pay their respective fines on or before 01st April 2016.
    
35. 30 days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the 1st Accused : Lagilevu Law, Suva.

Solicitor for the 2nd Accused : Vaniqi Law, Suva.