State v Tabanikau [2014] FJMC 45; Criminal Case 22.2014 (26 March 2014)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 22/14

BETWEEN:

THE STATE

AND:

RATU JASONI TABANIKAU

Prosecution: WPC Poonam
Accused: In Person

SENTENCE

1. Ratu Jasoni Tabanikau you were charged for the offence of Unlawful Cultivation of an Illicit Drug contrary to section 5(b) of the Illicit Drug Control Act 2004.
   
2. The particulars of the offence as follows:
   

"Ratu Jasoni Tabanikau & another on 28th day of November 2013 at Toki, Nakorotubu Ra in the Western Division without lawful authority cultivated 14 plants of Cannabis Sativa or Indian Hemp with height from 5cm to 124cm and weighing 64.6grams an illicit drug."

3. The charge was read and explained which you understood and pleaded guilty voluntarily to the same. You also accepted the facts tendered by prosecution.
   
4. The court being satisfied of your guilty plea as being unequivocal convicted you as charged.
   

Facts

5. According to prosecution on 28th November 2013 at 5.40pm, a team of police officers led by DC 4166 Petero raided the farm of accused and another at Vo Settlement, Toki Nakorotubu Ra. Police upon searching located one plant about 124cm in height beside the cassava plantation and also located another 13 plants between 5cm - 8cm in height beside the farm house.
   
6. All the plants were uprooted and seized by police. The plants were escorted to Koronivia for analysis and positively confirmed to be Cannabis Sativa an Illicit Drug. The total weight of the drugs was 64.6 grams (see government analysis report).

The accused was then cautioned interviewed and then charged accordingly.

Mitigation

7. I have considered your mitigation and consider the following in your favour:
   
   • Your guilty plea.
   • Remorseful and seek forgiveness of the court.
   • You've looking after your children.
   • Your time in custody (2 months & 3 days).
     

Tariff

8. The maximum prescribed penalty for the said offence would be life imprisonment or fine of $1000,000.00 or both.
   
9. 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.

Sentence

10. Considering the circumstances of offending I commence my sentence at 12 months. I don't see any aggravating factor hence your sentence stands at 12 months.
    
11. For the guilty plea and other mitigation I reduce your sentence to 4 months. Your final sentence is 8 months imprisonment.
    
12. The offending in this case falls into category 1 i.e. possession of between 0-100 grams whereby non-custodial sentences such as fines, community work, counselling, discharge with a strong warning, suspended sentence or short sharp imprisonment would be appropriate as noted in the case authority of Kini Sulua & Micheal Chandra v State (supra).
    
13. I note that this is not your first drug offence hence you cannot expect any leniency from the court. The total weight of the drugs you planted weighed 64.6 grams. An immediate imprisonment term is warranted in the public interest. Your sentence will not be suspended.
    
14. However from your 8 months sentence I will further deduct 2 months 3 days for time in custody. Thus you will have to serve an immediate prison term of 5 months 27 days.
    
15. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

26th March 2014