State v Tikotikoca - Sentence [2023] FJHC 386; HAC16.2023 (15 June 2023)

IN THE HIGH COURT OF FIJI

AT LABASA

CRIMINAL JURISDICTION

Criminal Case No. HAC 16 of 2023

BETWEEN: THE STATE

AND: MOSESE TIKOTIKOCA

Counsels: Ms. M. Lomaloma for the State

Accused in Person

Date of Plea: 28^th April 2023

Date of Sentence: 15^th June 2023

SENTENCE

1. Mosese Tikotikoca you have pleaded guilty to the charge in the following information: -

INFORMATION BY THE

DIRECTOR OF PUBLIC PROSECUTIONS

MOSESE TIKOTIKOCA is charged with the following offence:

COUNT ONE

Statement of Offence

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

Particulars of Offence

MOSESE TIKOTIKOCA on 30^th day of March 2022, at Moumici settlement, Taveuni in the Northern Division, without lawful authority, cultivated 22 plants of Cannabis Sativa, an illicit drug, weighing 6, 194.8 grams.

2. The facts, which you accept, are as follows: -

1. On the 30^th of March 2022, PC 7801 Watisoni Raikadroka received a report of criminal intimidation at Moumici settlement. Taveuni. You, Mosese Tikotikoca, called the police to lodge a report against your brother Niko because he had threatened you with a cane knife.
   
2. On receiving the report, PC Raikadroka and two other officers left out for Moumici Settlement and upon arriving, Niko informed the Police officers that you had a marijuana farm.
   
3. When questioned you did not deny this and you then voluntarily showed PC Watisoni and the other officers where your marijuana farm was located. At the farm the officers uprooted a total of 21 green plants. The officers also discovered fresh uprooted plant materials 10 metres away from where they had uprooted the 21 green plants.
   
4. The plants were taken to the Taveuni Police Station and it was sent for analysis at the Fiji Police Forensic Chemistry Laboratory where it was tested positive for cannabis sativa weighing a total of 6, 194 grams or 6.194 kilograms.
   
5. You were arrested and escorted to the Taveuni Police Station where you were interviewed under caution. You have made full admissions to the allegations against you – particularly in question and answer 36 – 38 and from question and answer 43 to 45.
   
6. You were then charged with one count of Unlawful Cultivation of Illicit Drugs under the Illicit Drugs Control Act 2004 and initially produced in the Taveuni Magistrate’s Court and the case was later transferred up to the High Court in Labasa.
   

3. You are a first offender with no previous convictions and you have offered the following plea in mitigation.

Mitigation

1. You are 36 years of age, married with 6 children.
   
2. You are a farmer by profession and your income on average is $200 fortnightly and you reside in Tavuki settlement, Taveuni.
   
3. Three of your six children are attending primary school – Years 4, 3 and 1 and the rest are still at home.
   
4. Your wife does not work and you are the sole breadwinner in the home.
   
5. You seek the Court’s forgiveness and in addition to your family, you also support your two brothers with their tertiary education. You also support your sickly father who lives with you.
   

4. The State has also filed sentencing submissions as follows.

Sentencing Recommendations

1. The maximum penalty for the offence of Unlawful Cultivation of Illicit Drugs is life imprisonment and/or a maximum fine of $1, 000, 000 (one million dollars.)
   
2. The tariff for this offence was set out by the Court of Appeal in the case of Kini Sulua, Michael Ashley Chandra –v- State Criminal Appeal No. AAU 093 of 2008 – pages 37 and 38 laid down the following sentencing guideline on drug offenders:
   

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

Category 2: Possession of 100 to 1000 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 to be sentenced to more than 2 years imprisonment.

Category 3: Possessing 1000 grams to 4000 grams of cannabis sativa. Tariff should be a sentence between 3 to 7 years with those possessing less than 2500 grams be sentenced to less than 4 years imprisonment and those possessing more than 2500 grams ne sentenced to more than 4 years.

Category 4: Possessing 4000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years of imprisonment.

3. The State submits that although the above guidelines were in a case for Unlawful Possession of Illicit Drugs, they are also applicable in cases of Unlawful Cultivation of Illicit Drugs as “section 5 (a) of the Illicit Drugs Control Act treated the verb “acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug:” equally. All the verbs are treated equally. In other words all of the offending verbs or offending actions are treated equally, and none of the offending actions are given any higher or lower standing as section 5 (a) of the Illicit Drugs Control Act 2004 was concerned” (as per Justice Temo.)
4. The Accused cultivated up to 22 green plants of cannabis sativa which amounted to 6, 194.8 grams, the weight of the drugs falls within Category 4 of the guidelines highlighted in the case of Kini Sulua (supra) the Category recommends a sentence between 7 to 14 years.
   
5. The State submits that the punishment in this case should be to the extent and in a manner that is just in all the circumstances of the case. The State also seeks a sentence that is fair which would address public denunciation and also prevent the public from engaging in the commission of such offences.
   

5. The State submits the following as aggravating factors: -

- The Accused had planted 22 plants of marijuana also known as cannabis sativa, this is a considerable amount of plants and it should be considered as an aggravating factor.

- There is an increase in the number of similar offences in the community, as more men are engaging in the cultivation of cannabis sativa in the country.

- There is public outcry, as these drugs are now on our streets and the accessibility to this drugs are easier for young people to engage themselves in.

- In order to deter and prevent people from committing similar offences in the future, a custodial sentence would warrant as a preventative measure towards people who are engaging and also thinking of engaging in the committal of similar offences.

6. The Accused is a first offender and he has pleaded guilty therefore saving the Court’s time and resources.
   
7. The State respectfully submits that the Court should put a sentence which is designed to punish the Accused in a manner which is just in all of the circumstances, in order to protect the community from people like the Accused, to deter would be offenders and also to signify that the Court and the Community denounces such behavior.
   
8. The State submits that the recent trend of sentencing for cultivation of illicit drugs in Fiji indicates that a custodial sentence would constitute a truly deterrent measure in all of the circumstances of this case.

The latest Development

9. On the 14^th of June, just before the date of sentencing, State counsel forwarded to the Court the case of Jone Seru -v- The State Criminal Appeal No. AAU 115 of 2017 (25^th May 2023) where the Court of Appeal has set out guideline tariff for the offence of Unlawful Cultivation of Illicit Drugs. This Court of Appeal decision was arrived at as a result of the disparity in sentences meted out by different Courts throughout the years and the need for consistency in sentencing for such offences.
10. The Court of Appeal formulated the following sentencing guideline for cultivating illicit drugs: -
    1. Culpability – demonstrated by the offender’s role in the offending – leading role, significant role, or lesser role) and more particularly explained as follows: -
       

Leading Role

• Owner, organiser, initiator or principal party in the venture. Involved in setting up of the operation, for example obtaining the lands, premises, workers and equipment with which to carry out the cultivation. May have one or more such ventures.
• Directing or organizing production/cultivation on a commercial scale.
• Substantial links to, and influence on others in a chain
• Close links to original source
• Expectation of substantial financial or other advantage
• Uses business as cover.
• Abuses a position of trust or responsibility.

Significant Role

• Play a greater or dominant part. Running the operation
• Operational or management function within a chain. May make arrangements for

the plants to be brought in, and the crop to be distributed. They may help to run more than one operation and be involved in making payments, such as rental payments, albeit again on instructions from those running the operation.

• Involves others in the operation whether by pressure, influence, intimidation or reward.
• Expectation of significant financial or other advantage (save where this advantage is limited to meeting the offender’s own habit) whether or not operating alone.
• Some awareness and understanding of scale of operation.
  

Lesser Role

• Secondary party, sometimes as “gardeners” tending the plants and carrying out what might be described as the ordinary tasks involved in growing and harvesting the cannabis. Simply be doing their tasks on the instructions of above in the hierarchy. May get paid for the work or subsistence.
• Performs a limited function under direction.
• Engaged by pressure, coercion, intimidation, grooming and/or control.
• Involvement through naivety, immaturity, or exploitation
• No influence on those above in a chain
• Very little if any, awareness or understanding of the scale of the operation.
• If own operation, solely for own use (considering reasonableness of account in all

the circumstances)

• Expectation of limited if any, financial advantage, (including meeting the

offender’s own habit.)

Harm

The second sentencing consideration is to assess the harm, output or potential output as determined by the amount of plants/scale of operation. The Court should determine the offence category from among the 4 categories given below: -

• Category 1 – Large scale cultivation capable of producing industrial quantities for commercial use with a considerable degree of sophistication and organisation. Large scale commercial quantities. Elaborate projects designed to last over an extensive period of time. High degree of sophistication and organisation. 100 or more plants.
  
• Category 2 – Medium scale cultivation capable of producing significant quantities for commercial use i.e., with the object of deriving profits. Commercial quantities. Over 50 but less than 100 plants.
  
• Category 3 – Small scale cultivation for profits capable of producing quantities for commercial use. 10 to 50 plants (with an assumed yield of 55 grams per plant).
  
• Category 4 – Cultivation of small number of plants for personal use without sale to another party occurring or being intended. Less than 10 plants (with an assumed yield of 55 grams per plant).
  

11. The Court of Appeal then sets out the sentencing table for the offence of cultivation of illicit drugs as follows: -

Culpability/Harm	Leading Role	Significant Role	Lesser role
Category 1	Starting Point 18 years custody Category Range 12 – 16 years custody	Starting Point 14 years custody Category Range 12 – 16 years custody	Starting Point 9 years custody Category Range 7 – 12 years custody
Category 2	Starting Point 14 years custody Category Range 12 – 16 years custody	Starting Point 14 years custody Category Range 12 – 16 years custody	Starting Point 5 years custody Category Range 3 – 7 years custody
Category 3	Starting Point 9 years custody Category Range 7 – 12 years custody	Starting Point 5 years custody Category Range 3 – 7 years custody	Starting Point 18 months custody Category Range 1 – 3 years custody
Category 4	Starting Point 5 years custody Category Range 3 – 7 years custody	Starting Point 18 months custody Category Range 1 – 3 years custody	Starting Point Category Range Non-custodial– suspended sentence

12. The Court of Appeal also set out the aggravating and mitigating features (not an exhaustive list.)

Statutory Aggravating Factors: -

• Previous convictions having regard to

(a) Nature of the offence to which conviction relates and relevance to the current
(b) offence; and
(c) Time elapsed since conviction (see Naureure vs State [2022] FJCA 149; AAU 151 of 2020 (12 December 2022) paragraphs 32 -39 for a detailed discussion on this aspect.)

• Offence committed on bail.

Other aggravating factors include: -

• Exploitation of children and/or vulnerable persons to assist in drug related activity.
• Exercising control over the home of another person for drug related activity.
• Nature of any likely supply.
• Level of any profit element.
• Use of premises accompanied by unlawful access to electricity/other utility supply

of others, where not charged separately.

• Ongoing/large scale operation as evidenced by presence and nature of specialist

equipment.

• Exposure of drug user to the risk of serious harm over and above that expected by

the user, for example through the method of production/cultivation.

• Exposure of third parties to the risk of serious harm, for example, through the

location of the drug related activity.

• Attempts to conceal or dispose of evidence where not charged separately.
• Presence of others, especially children and/or non-users.
• Presence of weapons, where not charged separately.
• Use of violence (where not charged as separate offence or taken into account at step

one.)

• Failure to comply with current court orders.
• Offence committed on license or post sentence supervision.
• Offending took place in prison (unless already taken into consideration at step 1).
• Established evidence of community impact.
• Use of sophisticated methods or technologies in order to avoid or impede detection.
• Use of indoor growing system (hydroponic method) to increase growth and

harvesting period and THC in the plants.

• Growing for personal use but supplying to others on a non-commercial basis.
• Period over which the offending has continued.
• Estimated value of the crop, if available.
• Assumed yield or the weight of the dried cannabis.
• Supply to others on a non-commercial basis in Category 4.

Factors reducing seriousness or reflecting personal mitigation

• Involvement due to pressure, intimidation or coercion falling short of duress (as opposed to being a willing party), except where already taken into account at step one. Acting under duress or undue influence.
• Isolated incident.
• No previous convictions or no relevant or recent convictions.
• Offender’s vulnerability was exploited.
• Remorse.
• Good character and/or exemplary conduct.
• Determination and/or demonstration of steps having been taken to address addiction (whose offending sits at the lower end of the scale in terms of seriousness) or offending behaviour.
• Serious medical conditions requiring urgent, intensive, or long-term treatment.
• Age and/or lack of maturity.
• Mental disorder, impairment, or diminished responsibility short of insanity or learning disability.
• Personal circumstances, sole or primary carer for dependent relatives only in relation to Category 4
• Assumed yield or the weight of dried cannabis.
• Sales are infrequent and of limited extent in Category 3.
  

Sentencing Remarks

13. Mosese Tikotikoca you have pleaded guilty to the offence of Unlawful Cultivation of Illicit Drugs contrary to section 5 (a) of the Illicit Drugs Control Act 2004.

14. You are a first offender and a person of previous good character.

15. You are the sole breadwinner and you support your family, your wife and six children as well as your sickly father and you also support your two brothers in their tertiary studies. You have sought the Court’s forgiveness and you readily admitted the offending to the Police at the scene and your cooperation led to the recovery of the illicit drugs.
16. In sentencing you the Court is mindful of the guidelines for sentencing as set out at section 4 of the Sentencing and Penalties Act 2009. For the offending on the Information before the Court, the Court is required to first of all denounce the offending as these types of cultivation offences are on the rise, especially in Vanua Levu. This sentence is also aimed at deterring likeminded offenders (general deterrence) as well as you personally from repeating this offending in the future (specific deterrence.) The Court is also mindful of the need to encourage your personal rehabilitation and your cooperation with the police and early guilty plea is a positive indicator of your willingness to rehabilitate yourself.
17. The only mitigation in your favour is your previous good conduct as a first offender. The other matters raised in mitigation relate to your own personal circumstances and do not mitigate the offending. You did enter the guilty plea and you will get credit for this in the sentence.
18. You were always on bail therefore there will be no further deductions for any time spent in custody.
19. You cultivated 22 plants with a total weight of 6, 194.8 grams (6. 194 kilograms) which places this offending in Category 3 of drug offences. In terms of your personal culpability, the Court finds that you played a significant role in the offending and the tariff under the new guidelines ranges from 3 – 7 years imprisonment.
20. In sentencing you I adopt a starting point of 5 years imprisonment. There are no special aggravating factors from the facts of the offending. You appear to be the sole cultivator and you cooperated with the authorities culminating in your guilty plea.
21. The mitigating factors are your guilty plea and your previous good character as a first offender.
22. After making the above adjustments, the Court arrives at a final sentence of 3 years imprisonment with a non- parole period to be served of 2 years.
    

This is your Sentence

1. Mosese Tikotikoca for the offence of Unlawful Cultivation of Illicit Drugs you are sentenced to 3 years imprisonment with a non-parole period of 2 years imprisonment.
2. I further direct that any drugs in police custody are to be destroyed at the end of the appeal period.
3. 30 days to appeal.
   

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

U. Ratuvili

Acting Judge

Labasa High Court

Solicitors:

Director of Public Prosecutions Office for the State

Accused in Person