State v Kumar [2015] FJMC 14; Criminal Case 299.2014 (6 February 2015)

IN THE MAGISTRATE’S COURT OF THE WESTERN DIVISION
AT SIGATOKA
CRIMINAL DIVISION

Criminal case No. 299/2014

THE STATE

–v-

SANJAY SANDEEP KUMAR

Before :Resident Magistrate, Tomasi Bainivalu
For the Prosecution : Sgt Shamim
For the Accused : In person
Date of Sentence : 06th February, 2015

SENTENCE

1. You, SANJAY SANDEEP KUMAR are here today to be sentenced on admission of guilt on your own accord for the following offence namely:
   
   • Unlawful Possession of Illicit Drugs: Contrary to section 5[a] of Drug Control Act 2004.
     
2. The particular of offence which you had pleaded guilty to on the 02/02/105 on your own free will and accord stated thus; that on 06th day of May, 2013 at Korolevu, Sigatoka in the Western Division, without lawful authority had in possession of 3.2 grams of cannabis sativa or Indian Hemp, an illicit drug.
   
3. You also admitted the summary of fact outlined in court by the prosecution; i.e. upon the search made by the police on petrol on the day in question at Korolevu Community Post, a sachet believed to be marijuana was found underneath the drivers’ seat.
   
4. According to Section 5 (a) of the Illicit Drugs Control Act 2004 that "any person who without lawful authority acquires, supplies, possesses, produces, manufactures, cultivates, uses, or administers 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".
   
5. Section 2 of the Illicit Drugs Control Act 2004 interprets "illicit drugs" as any drug listed in Schedule I, in this case, for the possession of an illicit drug namely, Cannabis Sativa.
   
6. You pleaded guilty to the said charge and I hereby convicted you accordingly on the same, to reflect seriousness of the said offence.
   

The Mitigating Factors

7. Your LAC Counsel had filed your mitigating submissions with attached authorities, which I have thoroughly perused and take them all into considerations; in sentencing you today.
   
8. Very briefly I noted the following being your personal circumstances:
   
   1. 32 years of age;
   2. Separated from your wife;
   100. Tile layer for Fletcher construction Company;
   4. C/O/O-drive long hours & drugs was for your personal use only to boost your strength when working/driving;
   5. Sole bread winner in the family & lives with elderly parents & 2 younger siblings;
   6. Cooperated with police during investigations and first offender;
   7. Promised not to reoffend & had stopped using marijuana;
   8. Remorseful for what he had done and apologize for not abiding by the law; pleaded guilty early and the court to consider the sentencing guidelines in relation to category 1 as set in the case of Sulua v State[2012].
      
9. You have pleaded guilty to the charge at the earliest possible opportunity and in so doing you have saved the courts time and resources and accordingly you will receive some discount on your sentences.
   
10. You’re a first offender and for your previous good behavior you will receive some discount on your sentences as well.
    
11. In view of the Criminal Procedure Decree 2009 and the decision of His Lordship Justice Goundar in State v Ilatia Wakeham HAC 001/2010, the Magistrates’ Court had the jurisdiction to hear and determine case under the Illicit Drugs Control Act No 09 of 2004.
    
12. The recent leading authority was set by the Fiji Court of Appeal when it determined two matters being Kini Sulua v. State and Michael Ashleigh Chandra v. State which were dealt together as they were both appeals against sentence. In granting leave to appeal, Powell JS, with the agreement of State Counsel, noted the following:
    

“It seems to me that it is time the Fiji Court of Appeal handed down some sentencing guidelines for drug offences which, inter alia, categorize the seriousness of the offences according to types and quantities of drugs. Counsel for the State agrees that this appeal is a suitable vehicle for handing down such guidelines.”

13. The Fiji Court of Appeal in determining an appropriate sentencing guideline were split 2:1 with Temo JA and Fernando JA dissenting from Marshall JA who proposed that the most visited drug precedent being Meli Bavesi v. State Criminal Appeal No. HAA 027 of 2004 be revised by noting that:
    

“It has for years in Fiji had the baneful effect of perpetuating the handing down of sentences in respect of possession and/or supply of cannabis which were wrong in principle. It caused the errors that have resulted in the sentences on Kini Sulua and Michael Ashley Chandra which must be revised in allowing their appeals.”

14. However, Temo JA dissented with the support of Fernando JA in advancing the following categories at paragraph 115 of the judgment as guidelines, inter alia:
    

“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, 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 to 1,000 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, 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”.

15. At paragraph 117 of the said judgment, it was stated that :
    

“Section 5(a) of the Illicit Drugs ol Act 2004&#004 treated thbs "acquiresuires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug " ey.all>All the verbs arbs are treated equally. Inr words, all the offe offending verbs or offending actions are treated equally. "Supplies, possesses, manufactures and cultivatre tr equally, and nond none of e of the offending actions are given any higher or lower standing, as far as section 5(a) of the Illicit Drugs Control Ac4&#004 was concerned. Illicit Drugs Control Act 2004 . Consequently, our four categories mentioned above, apply to each of the verbs mentioned in section 5(a) of the 2004 Act mentioned above. The w of the particular Illicit drug will determine which category the case falls unls under, and the applicable penalty that will apply. It is also suggested that, the application of the four categories mentioned in paragraph 115 hereof to section 5(a) e Illicit Drugs Control trol Act 2004 , be extended to thendifending verbs or offending actions in section 5(b) of the Illicit Drugs Control Act 2004. This will introduce some measure of consistency in how sentences are passed for offending against on 5(a) and 5(b) of the e Illicit Drugs Control Act 2004

14. At paragraph 188, His Lordship Justice Temo further commented that:
    

" Categories numbers 1 to 4 merely sets the tariff for the sentence, given the weight of the illicit drugs involved.

15. Though, there was no indication put forth by the prosecution in court whether the illicit drugs found in your possession was for consumption or for sales; however, I have noted in the mitigating submissions from your counsel that it was only for consumption; i.e. to boost your energy when working/driving.
    
16. The health hazards of drug abuse are well known and explain why many young people of both sexes are admitted to Saint Giles Hospital for treatment today. As indicated via the mitigating submissions that you used such dangerous drugs to boost your energy, I must press to you SANJAY SANDEEP KUMAR, that this lethal booster, it invoke poisonous to your blood and end result can affect your mental capacity. However, I have noted that you had shown great remorse to court and had told the court that you now stopped using such illicit drugs; I hope you're genuine with it.
    
17. In view of the above considerations, your sentence is aimed at driven by deterrence principle to send a clear message that this court takes a hard stance on drugs related cases and also to denounce your behavior in not respecting the law in general.
    
18. SANJAY SANDEEP KUMAR, the weight of illicit drugs found in your possessions on the day in question falls at Category 1; i.e. "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 beconsidered.
    
19. I decided therefore, considering you being a first offender together with your guilty plea at the very earliest available instance, which is a sign of remorse to this court, I will spare you a custodial term today; but invoked a Fine of $500.00 in default 3 months imprisonment. This fine is to be paid in a months' time from the date of this Sentence.
    
20. I further 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 its record purpose.
    
21. Right of Appeal, within 28 days from to date.
    
22. Review Date on the 09th March, 2015
    

.......................................
Mr Tomasi Bainivalu
Resident Magistrate
Sigatoka.

Copies:
Prosecution
Accused
File copy: C/NO. 299/2014