State v Voravora - Sentence [2016] FJHC 431; HAC052.2015S (20 May 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 052 OF 2015S

STATE

vs

JOJI VORAVORA

Counsels : Mr. M. Vosawale and Ms. S. Sharma for State
Accused in Person
Hearing : 17 May, 2016
Sentence : 20 May, 2016

SENTENCE

1. On 16 May 2016, you waived your right to counsel and said that you would represent yourself. On 17 May 2016, the following information was put to you:
   

Statement of Offence

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

Particulars of Offence

JOJI VORAVORAon the 16^th day of January 2015, at Vunivetau Farm, Kadavu, in the Southern Division, without lawful authority, cultivated 438 plants of cannabis sativa an illicit drug, weighing 33.7 kilograms.

2. The information was read and explained to you, and you said you understood the same. You then pleaded guilty to the charge. The prosecution then read their summary of facts in court. Basically they were as follows:

“...On the 16^th of January 2015 a group of Police Officers conducted a drug raid at Vunivetau farm, Naikorokoro, Kadavu. On this farm they uprooted a total of 438 marijuana plants, upon further investigation Police found that the farm belonged to Joji Voravora of Namara, Sanima, Kadavu.

Joji Voravora was caution interviewed on the 16^th of January 2015 by Detective Constable Luke, in his interview he admitted that he planted 400 and something plants on his own at Vunivetau Farm (please refer to Question 61 and Question 62, Question 63, Question 64). The accused admitted during caution interview that he knew cultivating marijuana was wrong (please refer to Question 90).

The 438 marijuana plants were brought to Suva and tested by Police Principal Forensics Officer Ms. Miliana Werebauinona on the 22^nd of January 2015. An analysis was conducted which confirmed the plants to be cannabis sativa weighing a toral of 33.8 kg...”

3. The court then checked with you to see that you are admitting all the elements of the offence of “unlawful cultivation of illicit drugs”, contrary to section 5 (a) of the Illicit Drugs Control Act 2004. You then told the court that, you admitted the particulars of offence in the information. You also said that, you admitted cultivating 438 cannabis sativa plants at Vunivetau farm, Kadavu on 16 January 2015. You admitted you had no lawful authority to do the same, and that the above illicit drugs weighed a total of 33.7 kilograms. On the basis of the above admissions, the court found you guilty as charged and convicted you accordingly.
   
4. The law makers of this country view the “unlawful cultivation of illicit drugs” very seriously, and had prescribed a maximum sentence of a fine not exceeding $1,000,000 or a sentence of life imprisonment, or both. (see Section 5 (a) of the Illicit Drugs Control Act 2004).
   
5. In the guideline judgment of the majority in Kini Sulua, Michael Ashley Chandra v The State, Criminal Appeal No. AAU 0093 and AAU 0074 of 2008, the Fiji Court of Appeal set down the following sentencing guidelines in paragraph 115:

“...115 In summary, the four categories are as follows:

(i) Category 1: possession of 0 to 100 grams of cannabis sativa – a non-custodial sentence to be given, for example, fines, community service, counselling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short sharp prison sentence be considered.

(ii) Category 2: possession of 100 to 1,000 grams of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with those possessing below 500 grams, being sentenced to less than 2 years, and those possessing more than 500 grams, be sentenced to more than 2 years imprisonment.

(iii) Category 3: possessing 1,000 to 4,000 grams of cannabis sativa. Tariff should be a sentence between 3 to 7 years, with those possessing less than 2,500 grams, be sentenced to less than 4 years imprisonment, and those possessing more than 2,500 grams, be sentenced to more than 4 years.

(iv) Category 4: possessing 4,000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment...”

6. In this case, you were convicted of unlawfully cultivating 33.7 kilograms of cannabis sativa plants on 16 January 2015. In terms of the above sentencing guidelines, that brings your case within category 4, where the tariff is a sentence between 7 to 14 years imprisonment. The evils of illicit drugs had been well debated in Parliament during the passage of the “Illicit Drugs Control Bill in May 2004, and I refer you to paragraph 111 of Kini Sulua, Michael Ashley Chandra v The State (supra) which contained the then Attorney General’s comments on the reasons for the Bill. However, the actual sentence will depend on the aggravating and mitigating factors.
   
7. The aggravating factor in this case was as follows:
   • (i) The amount of illicit drugs cultivated was huge, that is, 33.7 kilograms. This was approximately 7 times the illicit drugs found on Kini Sulua in the Court of Appeal case mentioned in paragraph 5 above.
     
8. The mitigating factors were as follows:
   • (i) At 48 years old, this is your first offence;
     
   • (ii) You pleaded guilty to the charge on the first day of the trial, and this was 1 year 3 months 11 days after the first call. Nevertheless, you saved the court’s time;
     
   • (iii) You had been remanded in custody since 24 January 2015, that is, approximately 1 year 4 months ago
     
9. I start with a sentence of 12 years imprisonment. For the aggravating factor, I add 4 years, making a total of 16 years imprisonment. For the time already served while remanded in custody, I deduct 1 year 4 months, leaving a balance of 14 years 8 months imprisonment. For being a first offender, I deduct 8 months, leaving a balance of 14 years imprisonment. For pleading guilty, I deduct 1 year, leaving a balance of 13 years imprisonment.
   
10. Mr. Joji Voravora, for cultivating 33.7 kilograms of cannabis sativa plants, an illicit drug, on 16 January 2015, at Vunivetau Farm, Kadavu in the Southern Division, I sentence you to 13 years imprisonment, with a non-parole period of 11 years imprisonment, effective forthwith.
    
11. The drugs are to be destroyed at the end of the appeal period to the Court of Appeal, or as the Court of Appeal directs.
    

Salesi Temo

JUDGE

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

Solicitor for Accused : In Person