State v Kumar [2013] FJMC 209; Criminal Case 65.11 (27 May 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 65/11

BETWEEN:

THE STATE

AND:

AJESH KUMAR

Prosecution: Inspector Nadolo
Accused: In Person

SENTENCE

1. Ajesh Kumar you pleaded guilty voluntarily to the offence of Unlawful Cultivation of an Illicit Drug contrary to section 5(a) of the Illicit Drug Control Act 2004.
   
2. You waived your right to counsel and pleaded voluntarily to the charge when it was read and explained. You also accepted the facts tendered by prosecution.
   
3. On 11th May 2010 police operation team from Tavua were doing marine patrol when they came across your boat. You were confronted by police as to whether you were in possession of illicit drugs. Police then came on board your boat to check the boat. Upon searching police found dried leaves believed to be marijuana wrapped in aluminium foil inside a red container. You were arrested and brought to the police station whereby you were cautioned interviewed and charged later. The alleged dried leaves were also sent to Koronivia for analysis and the leaves weighing 4.2grams were confirmed to be marijuana or cannabis sativa an illicit drug.
   
4. You have pleaded guilty, married with 2 children and a fisherman.
   
5. This type of offending is prevalent in community and I take this as an aggravating factor.
   
6. The maximum prescribed penalty for the said offence would be life imprisonment or fine of $1000,000 or both.
   
7. The tariff for drug related offences was stated in the recent FCA matter of Kini Sulua & Micheal Chandra v State Criminal Appeal No. AAU0093 & AAU0074 of 2008 at page 57 by majority decision it was accepted as follows:
   

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 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.

8. The offending in this case falls into category 1 i.e. possession of between 0-100 grams, non-custodial sentences such as fines, community work, counselling, discharge with a strong warning etc.
   
9. Considering that this being your first drug offence and the amount being 4.2 grams, I will exercise my discretion and order that you sign a good behaviour bond with the court in the sum of $500.00 and not to commit another offence for a period of 12 months.
   
10. I'm also going to give you a stern warning that if you appear before this court again convicted for any similar offence in future, this court will not be lenient with you.
    
11. 28 days to appeal.
    

__________________________
Samuela Qica
Resident Magistrate

27th May 2013