State v Wasawasa - Sentence [2022] FJHC 66; HAC069.2021S (18 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 069 OF 2021S

STATE

vs

KITIONE WAME WASAWASA

Counsels : Mr. N. Sharma for State
Mr. T. Cagilaba for the Accused
Hearings : 16 and 23 April, 2021.
Sentence : 18 February, 2022.

SENTENCE

1. On 16 April 2021, the following information was read over and explained to the accused, in the presence of his counsel:
   

“[Count 1]

Statement of Offence

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

Particulars of Offence

KITIONE WAME WASAWASA, on the 13^th day of October, 2020 at Muanisolo Village, Naceva, Kadavu in the Southern Division, without lawful authority, cultivated 227 plants of Cannabis sativa, an illicit drug, weighing 10.73 kilograms.

[Count 2]

Statement of Offence

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

Particulars of Offence

KITIONE WAME WASAWASA, on the 13^th day of October, 2020 at Muanisolo Village, Naceva, Kadavu in the Southern Division, without lawful authority, possessed 114 grams of Cannabis sativa, an illicit drug.

[Count 3]

Statement of Offence

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

Particulars of Offence

KITIONE WAME WASAWASA, on the 13^th day of October, 2020 at Muanisolo Village, Naceva, Kadavu in the Southern Division, without lawful authority, possessed 10.1 grams of Cannabis sativa, an illicit drug.”

2. He said, he understood the same and out of his own free will, he pleaded guilty to the same.
   
3. The prosecution then presented their summary of facts. Briefly they were as follows. On 13 October 2020, the police were conducting a drug operation in Kadavu. They were searching for suspected marijuana farms. At about 10 am, a team of police officers were travelling in a police vehicle heading towards a suspected marijuana farm at Muanisolo Village, Naceva, Kadavu. They met the accused on the way. He was acting in a suspicious manner. The police then searched him and found some dried leaves in the front left pocket of his pants. He was also carrying a bag. The police also searched the same, and found some dried leaves in the same. The accused also took police to his house and showed them some dried leaves and seeds in his house. The accused later admitted cultivating marijuana and he took police to his marijuana plants and they uprooted the same. The accused was arrested. The green plants and the dried leaves were later analysed by a government analyst. They were confirmed to be cannabis sativa and weighed 10.73 kg (count no. 1). When caution interviewed on 14 October 2020, the accused admitted the allegations against him. He was formally charged on 18 October 2020, he also admitted the allegations against him.
   
4. 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.
     
5. The weight of the drugs in this case being 10.73 kilograms (count no. 1), 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.
   
6. In this case, there appears to be only one aggravating factor, that is, the drugs found on you were huge.
   
7. The mitigating factors were as follows:
   • (i) At the age of 33 years, this is your first offence;
   • (ii) You pleaded guilty on the third call in the High Court, thus saving the court’s time;
   • (iii) You co-operated with the police during their investigation. You showed police your marijuana farm. You fully admitted the offences when caution interviewed and formally charged by police.
     
8. I will start with count no. 1, the most serious of your offending. I start with a sentence of 7 years. I add 2 years for the aggravating factors, making a total of 9 years imprisonment. For being a first offender, I deduct 1 year, leaving a balance of 8 years. For pleading guilty early, I deduct 1 year, leaving a balance of 7 years. For your full co-operation with the police, I deduct 3 years, leaving a balance of 4 years imprisonment. Co-operation with police should be encouraged and a huge deduction of sentence will be given, as a reward. On count no. 1, I sentence you to 4 years imprisonment.
   
9. On count no. 2, I sentence you to 1 year imprisonment.
   
10. On count no. 3, I sentence you to 1 day in prison.
    
11. The summary of your sentences are as follows:
    • (i) Count No. 1 – Unlawful cultivation – 4 years imprisonment.
    • (ii) Count No. 2 – Possession – 1 year imprisonment.
    • (iii) Count No. 3 – Possession – 1 day imprisonment.

All the above sentences to be concurrent to each other.

12. Mr. Kitione Wame Wasawasa, for unlawfully cultivating 10.73 kg of cannabis sativa, and possessing a total of 124.1 grams of cannabis sativa, on 13 October 2020, at Munaisolo Village, Naceva, Kadavu in the Southern Division, I sentence you to 4 years imprisonment, with a non-parole period of 2 years imprisonment, effect forthwith.
    
13. The illicit drugs are to be destroyed forthwith under the Chief Registrar’s supervision, with police assistance.
    
14. 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 : Toganivalu Legal, Suva.