State v Singh [2016] FJMC 167; Criminal Case 10.2016 (7 July 2016)

IN THE MAGISTRATE COURT
SITTING AT TAILEVU

Criminal Case No. 10 of 2016

State

v

Joytika Vikanshi Singh

Prosecution : Sgt Rao

Accused : Present – Mr S. Raikanikoda

Sentence

Joytika Vikanshi Singh, this is your sentence. You pleaded guilty on your own free will after seeking legal advice and you also admitted the statement of facts. You are charged with being in possession of Illicit drugs. The quantity was 50.84 grams.

The Law and the Tariffs

Section 5 of the Illicit Drugs Control Act 2004 reads as follows:

"...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".

In Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) Hon. Justice Temo set out the tariff and guideline in relation to drug related offences 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.”

Mitigation

Your mitigation is that you are 36 years old, in a defacto relationship with 2 children (aged 1 year 9 months and 9 months old), owner/proprietor of restaurant, early guilty plea, seeking leniency, seeking to pay fine and promising not to re-offend.

The Starting Point and Calculation of Sentence

This Court adopts the Tariff as set out by Justice Temo in the Sulua case in the Fiji Court of Appeal. The quantity of the drugs in this case falls in category 1. The tariff suggested is suspended imprisonment to short sharp prison sentence.

The accused told the Court drugs were for sale. This accused had a previous matter (CF70/15) before this Court where she was fined $500 for being in possession of 34.7 grams of Marijuana. She was sentenced in August last year. This Court finds that the accused does not wish to rehabilitate despite being given a chance. She is resorting to selling drugs to supplement her earnings.

For the offending which is in category one, this court takes a starting point of 6 months, for the guilty plea the Court gives 2 months discount. For the mitigation and time spent in custody the court gives further 1 month discount. For the aggravating factor which includes possession for commercial supply (sale to others) this court will increase the sentence by 2 months. The sentence for the accused is 5 months imprisonment.

This Court has carefully considered whether to suspend the sentence for the accused or not. The accused is not a first offender. She was recently fined for a similar offending but has failed to learn lessons from that sentence. The accused is resorting to commercial supply, which is sale of drugs. Drug is a menace to the Fijian Society. It must be taken seriously. This Court will not suspend the imprisonment term for the accused as she must realize and learn that she was given a chance and she needed to change her ways. She chose not to do so and re-offend.

Summary:

5 months imprisonment.

The drugs are to be destroyed.

Any party aggrieved with this sentence has 28 days (from today) to appeal this sentence to the High Court.

Chaitanya Lakshman

Resident Magistrate

7/7/2016