State v Ramzan - Sentence [2022] FJHC 65; HAC151.2019S (18 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 151 OF 2019S

STATE

vs

MOHAMMED RAMZAN

Counsels : Ms. S. Tivao and Mr. M. Rafiq for State
Ms. E. Radrole and Mr. A. Barinisavu for Accused
Hearings : 14, 15 and 16 February, 2022.
Judgment : 17 February, 2022.
Sentence : 18 February, 2022.

SENTENCE

1. In a judgment delivered yesterday, you were found guilty and convicted of the following information:

“Statement of Offence

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

Particulars of Offence

MOHAMMED RAMZAN on the 27^th day of November 2017 at Sigatoka in the Western Division, without lawful authority had in his possession 5.5 kg of Illicit Drugs known as Cannabis Sativa.”

2. The brief facts were as follows. On 27 November 2017, at about 11.30 pm, you were driving a rental vehicle registration number LR 4303 from Suva to Nadi. It was a black Honda vehicle. No one else, but you were in the vehicle. The police were conducting a road block operation at Korolevu Community Police Post. The police stopped your car, searched the same and found two bags in the boot containing dried leaves. The same was later analysed by a government analyst, and it was confirmed that the dried leaves were cannabis sativa, weighing 5.5 kg. You were caution interviewed by police on 28 and 29 November 2017, and you admitted carrying the dried leaves in your rental cat at the material time, but denied knowledge of the same. You had been tried and the court had found that you physically possessed the illicit cannabis sativa drug at the material time in your car, and you knew at the time it was an illicit drug.
   
3. The maximum sentence for “Unlawful Possession of cannabis sativa, an illicit drug”, is a fine of $1,000,000 or life imprisonment or both (section 5 (a) of the Illicit Drugs Control Act 2004). Society, through Parliament, viewed the offence seriously. In Kini Sulua, Michael Ashley Chandra v State [2012] Fiji Law Reports, Volume 2, page 111, at paragraph 115 on page 143, the majority in the Court of Appeal laid down the following sentence guideline:
   
   • (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 gram 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.
     
4. The weight of the drugs in this case being 5.5 kilograms, it makes the case a Category 4 case. The tariff is therefore a sentence between 7 to 14 years imprisonment. However, the final sentence will depend on the aggravating and mitigating factors.
   
5. In this case, there appears to be only one aggravating factor, that is, the drugs found on you were huge.
   
6. The mitigating factors were as follows:
   • (1) At the age of 46 years, this was your first offence;
   • (2) You were remanded in custody for 3 months;
   • (3) This charge had been hanging over your head for the last 4 years 3 months, a punishment in itself.
     
7. I start with a sentence of 7 years. I add 1 year for the aggravating factor, making a total sentence of 8 years. For time already served while remanded in custody, I deduct 3 months, leaving a balance of 7 years 9 months. For mitigating factor no. 3, I deduct 9 months, leaving a balance of 7 years. For being a first offender at the age of 46 years, I deduct 2 years, leaving a balance of 5 years imprisonment.
   
8. Mr. Mohammed Ramzan, for possessing 5.5 kg of cannabis sativa, an illicit drug, in your rental car, on 27 November 2017, at Sigatoka in the Western Division, I sentence you to 5 years imprisonment, with a non-parole period of 3 years, effective forthwith.
   
9. The Illicit Drugs, which had been tendered at the trial as Prosecution Exhibit No. 4, are to be destroyed by the Chief Registrar’s Office, with the assistance of the police, as soon as possible. Before the destruction, the drugs are to be photographed, and the photos to be part of the record. The above is done, as the exhibit is deteriorating.
   
10. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Legal Aid Commission, Suva.