State v Chandra [2016] FJMC 14; Criminal Case 279.2016 (9 February 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case : 279/2016

STATE

V

LAWRENCE PRANESH CHANDRA

For the Prosecution: PC Williame
The Accused : In person
Date of Sentence : 09th of February 2016

SENTENCE

1. LAWRENCE PRANESH CHANDRA, you were charged with one count Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004 and one count of Bribery of Public Official contrary to section 134(1) of the Crimes Decree No 44 of 2009.
   
2. Bribery of Public Official is an electable offence and you elected this court and pleaded guilty for both counts. Admitted summary of facts shows that on 04/02/2016 the police searched you near the Holiday Inn and found 0.5 grams of Cannabis Sativa in your possession. When you were escorted to the Police Station you offered $30.00 to the PC 3001 Bilitaki and later increased that to $50.00 in return of not to arrest you.
   
3. I am satisfied that you pleaded guilty on your own free will and convict you for the charge.
   
4. The maximum penalty for Possession of Drugs is life imprisonment/ $100,000.00 fine.
   
5. In Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) his Lordship Justice Temo set down the tariff for this offence in the following manner.
   

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.

6. For the Bribery of Public Official the prescribed penalty is 10 years imprisonment. In Fiji Independent Commission Against Corruption [FICAC] v Mohammed [2015] FJHC 479; HAC349.2013 (24 June 2015) his Lordship Justice Madigan said:
   

"The U.K. Sentencing Council has set out useful considerations on bribery sentences and based on their recommendations, this Court would now set the following parameters for sentencing of bribery under the Crimes Decree, 2009.

In cases of high culpability (Category 1) sentences of between 5 and 8 years should be passed.

An offender considered to be highly culpable would be one who:

Plays a leading role where there is group activity.

Involves others through pressure or influence.

Abuses a position of significant power or trust.

The intended corruption is of a senior Government Official performing a public function.

There is sophistication of the offence or substantial planning over a period of time.

Is motivated by the expectation of substantial financial commercial or political gain.

Lesser offending (Category 2) would apply to an offender

Is involved through coercion, intimidation or exploitation.

Is not motivated by personal gain.

Plays a peripheral roll.

Is opportunistic, with a "one-off" offence with little or no planning.

Has limited awareness or understanding of the extent of the corrupt activity.

Sentences for Category 2 offending should be within the range of 18 months to 4 years.

So bribery offences would raise two tariffs for sentencing.

5 to 8 years for Category One and 18 months to 4 years for Category 2(emphasis added)."

7. Based on the facts in this case I find that you fall in to the second category and select 30 months as the starting point for the Bribery of Public Official.
   
8. From the facts I do not find any aggravating factors and therefore would not enhance your sentence. In your oral mitigation you said you are married with children and remorseful of you behavior. For these I deduct 03 months to reach 27 months imprisonment.
   
9. For pleading guilty on the first day I deduct 1/3 to reach 18 months imprisonment. For the 1st count I sentenced you to 03 months imprisonment. Considering these were committed in same transaction the sentences to be concurrent.
   
10. Bribery and Corruption in society should not be treated leniently and warrants a custodial sentence to denounce the behavior of offenders as well as to deter future offenders. Therefore there is no reason to suspend this sentence. .
    
11. Accordingly I sentence you to 18 months imprisonment for these offences.
    
12. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate