State v Rahman - Sentence [2021] FJHC 288; HAC063.2019 (12 October 2021)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 063 OF 2019

BETWEENSTATE

V

JOSHUA AZIZ RAHMAN

Counsel: Dr A Jack, Ms S Kiran & Ms M Naidu for the State

Mr D Sharma, Mr S Deo & Mr A Nandan for the Accused

Date of Hearing: 22 March – 26 March, 29 March – 31 March, 1 April 2021

Date of Judgment : 16 April 2021

Date of Sentence : 12 October 2021

SENTENCE

[1] Joshua Aziz Rahman, you are appearing before this Court for sentence after been convicted of being found in possession of cocaine contrary to section 5(1) of the Illicit Drugs Control Act.

[2] My duty is to explain to you and the public the sentence which I am going to impose on you today. I have decided to use an intuitive process of reasoning for commuting your sentence. This method of commuting sentence is known as instinctive synthesis, which only requires the enunciation of all factors properly taken into account and the proper conclusion to be drawn from the weighing and balancing of those factors (Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015)).

[3] In commuting your sentence, I take into account the relevant common law sentencing principles such as the proportionality and uniformity principles. I also take into account the provisions of the Sentencing and Penalties Act and in particular sections 4 and 5. Regard must be made to both the subjective features of the offender and the objective circumstances of the offence.

[4] The subjective factors are that you are a Canadian national with Fijian heritage. You were born to a Fijian father and a Canadian mother in Canada on 8 January 1995. You told the court that your parents separated one year after you were born and that you reconnected with your father after completing your High School. This was a time when your father had moved to live in Fiji.

[5] In November 2017, your father took on a tenancy of a residential dwelling at Caubati Road. In 2018, you frequently visited your father in Fiji and lived with him at Caubati Road.

[6] You came under the police radar on 9 February 2019 when you were seen having a face to face meeting with three foreign nationals on two different locations in Suva. You were not aware that those individuals that you were having a meeting with were persons of interest for the police. The surveillance photographs of the meeting and the evidence of the surveillance officers reveal your close connection with those individuals, contrary to your claim that you did not know them.

[7] After meeting the three foreign nationals, you returned to your home at Caubati Road. On 12 February 2019, you travelled to Nadi and checked into a hotel. The same evening you were arrested and detained in police custody. You were escorted to Suva the following morning and interviewed under caution. You voluntarily answered the questions but you did not make any admissions. That was the extent of your cooperation with police.

[8] Your home at Caubati Road was searched on the evening of 14 February 2019. At the time you were the sole occupant of the house as your father had left for New Zealand on 8 February 2019.

[9] The drugs were concealed inside the master bedroom of the house. They were made of bars and wrapped with plastic and duct tape. One bar was found inside the bedside drawer while 38 bars were found inside a cavity underneath the bed. Your father occupied the master bedroom while you occupied the adjacent room. However, you had access to all the rooms. The rooms were not locked when the discovery of drug was made.

[10] This Court found you criminally liable for joint possession of drugs with your father. Your level of criminality is same as your father.

[11] I did not believe your evidence that you did not know about the drugs in the house. You had a close association with your father at a time when he was involved with illicit drug transactions in New Zealand. You also had association with foreign nationals linked with international drug offences a few days before the drugs were discovered in your home.

[12] Cocaine is a hard drug that can cause significant social and psychological harm to the public. It is a highly addictive drug that can cause severe form of mental illness and increase risks of heart attacks and strokes for regular users (R v Farlane [1992] 3 NZLR 424, 426 per Cooke P).

[13] The statutory maximum sentence available for possession of an illicit drug is life imprisonment and or a fine of $1m. In assessing the gravity of the offence the court must have regard to the maximum sentence prescribed by the Parliament for the offence. In this case the offence is objectively serious because the Parliament has prescribed imprisonment for life as a penalty.

[14] The aggravating factors are that the cocaine found is of a large quantity (39.5 kg) and with an average purity of 81% and worth about $39.5m. The quantity suggests the drug was possessed for commercial purpose. There is no suggestion that the offender is a user. The drugs were concealed inside a cavity underneath a bed, which indicate a high degree of planning was involved to avoid detection.

[15] In sentencing you I take into account the mitigation put forward on your behalf by your counsel. You are now 26 years old. Before this case, you did not have a criminal record. Generally, previous good character mitigates an offence, but in drug cases, the courts give less importance to these factors because youth and good character are the tools used by the offenders to exercise the sympathy of the court (Aramah (1983) 76 Cr App R 190, Balaggan v State Criminal Case No HAC049 of 2011(Ltk)). You had the option to live a decent and honest life but you chose the path of crime. You now have to bear the consequences of that choice.

[16] Drug offenders should not expect the courts to exercise much mercy in sentence. The courts duty is to send a clear message that soft options are not available for drug offenders. In your case, the primary purposes of sentence is to denounce your crime, deter you and others from committing similar offences in the future, and to protect the community.

[17] Rehabilitation is of little value when an offender takes no responsibility for his crime and is not genuinely remorseful. But the court must not lose sight of the prospect of rehabilitation for a first time young offender even when he takes no responsibility for his crime. I will take this factor into consideration when fixing a non-parole period for you.

[18] I use the case of Abourizk v State [2019] FJCA 98; AAU0054.2016 (7 June 2019) as a guideline sentence. In this case, the two offenders were tried and convicted of being found in possession of 49.9 kg of cocaine. The High Court sentenced them to 14 years imprisonment with a non-parole period of 12 years. The State appealed the sentence to the Court of Appeal. The Court of Appeal by a majority judgment allowed the State’s appeal and substituted a sentence of 25 years imprisonment with a non-parole period of 20 years.

[19] Further, the Court of Appeal pronounced the following guidelines for the sentencing courts at [145]-[146]:

[145] Having considered all the material available and judicial pronouncements in Fiji and in other jurisdictions, I set the following guidelines for tariff in sentences for all hard/major drugs (such as Cocaine, Heroin, and Methamphetamine etc.). These guidelines may apply across all acts identified under section 5(a) and 5(b) of the Illicit Drugs Control Act 2004 st to t to relevant provisions of law, mitigating and aggravating circumstances and sentencing discretion in individual cases.

Category 01: – Up to 05g –½ years to 04 ½ y89; years’ imprisonment.

Category 02: – More than 05g up to 250g - 03 ½ years to 10 years’ imprisonment.

Category 03:– More than 250g up to 500g - 09 years to 16 years’ imprisonment.

Category 04:– More than 500g up to 01kg – 15 years to 22 years’ imprisonment.

Category 05 – More than 01kg - 20 years to life imprisonment

[146] In my view, the sentencing court should consider an appropriate fine in addition to the imprisonment as permitted under section 05 of the Illicit Drugs ConAct 2004 depending oing on the quantity involved, nature of the act and the degree of involvement of the accused. (per Prematilaka JA).

[20] In this case, there is very littlermation available to make aake an assessment whether the offender has means to comply with an order for payment of fine. An order for fine only is also inappropriate given the nature and gravity of the offence.

[21] Possession of 39.5 kg of cocaine falls under category 5 of the recommended tariff by the Court of Appeal in Abourizk. I am mindful of the principle that after all factors are properly taken into account the punishment must fit the crime. After taking all these into consideration I have come to a decision that a term of 23 years imprisonment is an appropriate sentence.

[22] The final factor that I am obliged to consider is your remand period. You have been in custody on remand since 12 February 2019 – a total of 2 years and 8 months. I further discount your sentence by 4 months for the delay - post-charge and pre-sentence delay. I make a downward adjustment of 3 years to your sentence to reflect your remand period and the delay.

[23] You are sentenced to 20 years imprisonment with a non-parole period of 14 years.

[24] You have a right of appeal to the Court of Appeal within 30 days from the date of your sentence.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:

Office of the Director of Public Prosecutions for the State

R Patel Lawyers for the Accused