State v Ratu [2015] FJMC 91; Criminal Case 432.15 (12 August 2015)

IN THE MAGISTRATES COURT AT SUVA

Criminal Case No. 432/15

STATE

-v-

JOVILISI RATU

WPC Priti for the prosecution
For the Accused Ms. Mishra (LAC) appeared.

SENTENCE

1] You, Jovilisi Ratu, has pleaded guilty to the following charge;

UNLAWFUL POSSESSION OF ILLICIT DRUGS: Contrary to Section 5 (8) of the Illicit Drug Act No. 9 of 2004.

2]JOVILISI RATU on the 25th day of February 2015 at Munia Street, Samabula, Suva in the Central Division with unlawful authority possessed a sachet of illicit drugs namely Indian Hemp botanically known as Cannabis Sativa weighing at 0.2 grams.

3] The summary of facts, you admitted on 20/3/15 before this court could be reproduced as follows. That On 25/2/15 at about 1535 hours Police Constable no. 3687 Rakeshwar Singh (A1) received information that a group of youths are smoking marijuana along Munia Street, Samabula.A1 then drove out F/77 with Constable 2612 Opeti A2 to attend to the report.A2 then stopped in front of Palms Medical Centre in Munia Street in which both A1 and A2 got off and went straight to a vacant house at the back of the Palms Medical Centre.At the driveway of the Palms Medical A1 and A2 approached four (4) male youths when suddenly they saw one the youths threw a piece of aluminium foil to the ground.A2 then told Jovilisi Ratu Accused to pick up the aluminium foil that he threw.A1 then searched the aluminium foil in which it contains dried leaves believed to be marijuana.A1 and A3 arrested Jovilisi Ratu Accused and others and escorted them to Samabula Police Station.The dried leaves were sent for analysis which confirms to be Indian Hemp botanically known as Cannabis Sativa and its weight was 0.2 gramms.Jovilisi Ratu accused was interviewed under cautioned and admitted the offence.The accused was charged or one count of Found in Possession of Illicit Drugs Contrary to Section 5(A) of Illicit Drugs Act 2004.

4] Section 5 (a) of the Illicit Drug Act No. 9 of 2004 states as follows;

"5. 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."

5] Tariff for possession of illicit drugs has recently been set by His Lordship Justice Madigan in Criminal Miscellaneous Case Nos. HAR 002 of 2012 to HAR 006 of 2012 Mesulame Koroi and others on 20th April 2012. In that His Lordship considered all previous relevant authorities and set a tariff according to the quantity found on detection from the accused. Madigan J categorized the starting point of the offence as follows;

(i) Possession of up to 100 grams or cultivation of no more than 5 plants, non-custodial sentences at the discretion of the court.
(ii) Possession of 100 – 1000 grams and cultivation of 5 – 50 plants; custodial sentences in the range of one year to six years.
(iii) Possession of more than 1000 grams and cultivation of more than 50 plants, custodial sentences of six years or more.
(iv) For possession of very large quantities (5 kg or more) custodial sentences in the range of ten to fifteen years.

6] You plead guilty for the charge and there are no aggravating factors.

7] In your mitigation you said; that you are 18 years old and 1st year student of Fiji National University where you are acquiring a Trade Diploma in Electric Engineering. You reside with your grandparents. It was submitted that you are sorry for what you have done. You are genuine in remorse. You pleads guilty to the offence, saving the Court's time and expenses. You promised to this Court that you will not re-offend. You asked non-custodial sentence.

8] In Lal v State [2013] FJHC 602; HAA020.2013 (12th November 2013). His Lordship Justice Bandara referred to the case of Waqasaqa v The State [2005] FJHC 115; HAA0061.2004 (20th May 2005) where Justice Winter stated:

"In my view the best mitigation is an early guilty plea. Courts have often recognized that sparing victims the agony of re-living the terror of the event through an adversarial process in trial deserves full recognition; In addition the assistance to the due process of justice by sparing the expense of trial deserves a significant discount. Against that total term an appropriate discount needs to be given for an early guilty and co-operation with the Police. A one third discount would appear to be appropriate reducing the sentence then to 6 years imprisonment".

9] The police found 0.2 grams of Cannabis Sativa from your possession. There is no indication of cultivation. Quantity shows that you are a possible user.

10] In Prasad v State [1994] FJHC 132; HAA0032j.94s (30th September 1994) S W Kepa J stated:

"In my view the fact that appellants are first offenders ought to be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the Court has explored and exhausted all other alternative sentences".

11] In Prasad v State [1994] FJCA 19; Aau0023u.93s (24th May 1994) the Fiji Court of Appeal held:

"...Courts ought to bend backwards to avoid immediate custodial sentence for first offenders....We do not have any legal restrictions in this country with regard to imprisonment of persons seventeen years and over. Where imprisonment is an option the matter is left to the discretion of the sentencing Court. However, criminologists recognized that a prison sentence should be the last resort especially where a first offender is concerned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. The brutalizing effect of imprisonment on a first offender especially where imprisonment is for a long period is now well-recognized..."

12] In Singh v State [2000] FJHC 115; Haa0079j.200s (26th October 2000) Her Ladyship Justice Shameem stated:

"However as a general rule Leniency is shown to first offenders, young offenders and offenders who plead guilty and express remorse".

13] Further Her Ladyship Justice Shameem in Nariva v State [2006] FJHC 6; HAA0148J.2005S (9th February 2006) stated the following:

"The Courts must always make every effort to keep young first offender out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment"

Section 15(3) of Sentencing and Penalties Decree 2009 No: 42 Of 2009

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

14] This offence is falling under category 01. Therefore after considering above guiding principles and judgments, I act under section 45 of the SPD subject to below mentioned conditions I will formally issue non conviction on next court date. Charge will be dismissed.

A] That you will pay $ 100 fine within 1 month from today and in default 10 days imprisonment will be applicable to you.

B] Further you will engage in community work for 5 days from 9:00 am to 2:00 pm at Samabula Police station. Unless another 5 days imprisonment will be applicable to you and this will run consecutively to any other imprisonment if available. The Station officer of Samabula Police Station must report the progress.

15] Illicit drugs to be destroyed after 28 days.

16] 28 days to appeal.

On 12th August 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate