State v Motokilagi [2014] FJMC 24; Criminal Case 44.2014 (19 February 2014)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 44/14

BETWEEN:

THE STATE

AND:

SAKIUSA MOTOKILAGI

Prosecution: PC Dinesh
Accused: In Person

SENTENCE

1. Sakiusa Motokilagi you were charged for two counts of Illicit Drugs matter pursuant to section 5(a) of the Illicit Drug Control Act 2004.
   
2. The particulars of the charge as follows:
   

First Count

Sakiusa Motokilagi on 10th February 2014 at Talakei Settlement Nakorotubu Ra in the Western Division without lawful authority cultivated 14 plants weighing 2124.2grams of cannabis or Indian hemp.

Second Count

Sakiusa Motokilagi on 11th February 2014 at Talakei Settlement Nakorotubu Ra in the western Division without lawful authority had in his possession 13.6 grams of cannabis or Indian hemp.

3. You waived your right to counsel and opted to defence yourself. The two counts were read and explained and you fully understood the nature of the offence you were being charged with. Your plea was also taken and you pleaded guilty voluntarily. The facts were also read and explained which you accepted.
   
4. The court being satisfied that your guilty plea was unequivocal convicted you as charged.
   

Facts

5. Prosecution tendered facts that on 10th February 2014 at 4am at Talakei Settlement Verevere Village, police received information that there were plants believed to be marijuana planted at accused farm. PC 3917 Paul and other police officers went to accused farm and uprooted 14 plants believed to be marijuana. The height of the plants ranged from 86cm to 164cm. All the plants weighed 2124.2grams. The plants were seized by police and taken for tests.
   

Further on 11th February 2014 at 4.30am PC 3917 Paul led a team of police officers to accused house to arrest him. They were informed by accused wife that he was not at home. Police went pass a goat shed belonging to accused and saw dried leaves believed to be marijuana being dried at the shed. The dried leaves weighing 13.6grams were seized by police and taken for tests.

The alleged plants and dried leaves were tested and confirmed to be cannabis sativa an illicit drug (see GA report).
The accused was later arrested interviewed under caution and charged for the two counts.

Mitigation

6. You mitigated and I taking the following in your favor:
   • Early guilty plea.
   • First offence.
   • Seeks forgiveness and promised not to re-offend or appear in court again.
   • Sole breadwinner and family background.
   • Time in custody (5 days).
     

Tariff

7. The maximum prescribed penalty for the said offence would be life imprisonment or fine of $1000,000.00 or both.
   
8. The tariff for drug related offences was stated in the 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.

Sentence

9. The offending in this case as suggested in Kini Sulua & Michael Chandra v State (supra) falls into category 3 i.e. possession of between 1,000 to 4,000 grams sentence should be 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.
   
10. In your case for the first count I take a starting point of 4 years. I don't see any aggravating factors except elements of the offence.
    
11. This being your first offence and other mitigation I reduce the sentence by 1 year. For your guilty plea I further deduct the sentence by 1 year 4 months.
    
12. You sentence for the first count is 2 years 8 months.
    
13. For the second count considering the circumstances of offending and giving appropriate discount for mitigating factors I sentence you to 3 months imprisonment.
    
14. Both counts are to be served concurrently hence in total your sentence will be 2 years 8 months. I reduce 5 days for your time in custody thus your final sentence will be 2 years 7 months & 25 days.
    
15. I've considered whether to suspend your sentence. Although this is your first offence, the offending is prevalent in community and there is a need to impose a sentence to deter other would be offenders and also act as a lesson for you. Further I don't see any exceptional circumstance to suspend your sentence. Your sentence will not be suspended.
    
16. You will serve an immediate imprisonment term of 2 years 7 months & 25 days.
    
17. I further order that you serve a non-parole period of 1 year 10 months before being eligible for parole.
    
18. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

19th February 2014