State v Colati [2013] FJMC 308; Criminal Case 987.13 (12 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA
Criminal Case No. 987/2013

STATE

–v-

GAUNA COLATI

For the State : Mr. Ralulu J.
For the Accused : Present

SENTENCE

1. GAUNA COLATI you were charged with the offence of Unlawful Possession of Illicit Drugs Contrary to section 369 (1) of the Crimes Decree No.44 of 2009 and the particulars of offence is as follows;
   

On the 29th May 2013 at Suva, without lawful authority possessed 3.9 grams of Cannabis Sativa.

2. The summary of facts of the case that was submitted by the prosecution and admitted by you.
   
3. I have considered mitigating factors and your personal background submitted by you which were brought before me in your oral mitigation.
   
4. Statutory Indication:
   

Section 5 reads; Any person who without lawful authority-

(a) acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug; or

(b) engages in any dealings with any other person for the transfer, transport, supply, use, manufacture, offer, sale, import or export of an illicit drug;

commits an offence and is liable on conviction to a fine not exceeding $1,000,000 or imprisonment for life or both.

The Tariffs

I draw my attention to the recent Judgment Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012).

Their Lordships have analyzed 50 cases prosecutions for "possession of cannabis" contrary to section 5 (a) of the Illicit Drugs Control Act 2004 to assist to draw up a Sentencing guideline proposing the following four categories; 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, counseling, 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 – 1000 grams of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with hose 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.

Consequently, the four categories mentioned above, apply to each of the verbs mentioned in section 5 (a) of the 2004 Act mentioned above. The weight of the particular illicit drug will determine which category the case falls under, and the applicable penalty that will apply".

5. Sentence
   

I now proceed to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.

In Sentencing you, I consider and acknowledge your early guilty plea and Mitigating Factors including your personal background and your antecedents'; you have four previous convictions. I also note that you are remorseful. You also stated that the reason for possession is for your personal use.

6. In this case, you fall into the first Category. See (Sulua v State-supra) considering all the circumstances' of this case impose a fine of $100.00 (01 penalty units) in default 10 days imprisonment.
   
7. Considering all the circumstances I order you to pay a fine of 100.00 [01 penalty unit] in default 10 days. You have 28 days to pay. I further make an order that if there are any drugs remaining in police custody, I hereby direct that such drugs are to be destroyed and a certificate confirming the same is to be forwarded to the Court for the record.
   
8. Right to Appeal
   

28 days to pay.

..........................
Lakshika Fernando
Resident Magistrate

On this 12th day of July 2013.