State v Qalubau [2016] FJMC 173; Criminal Case 430.2016 (18 July 2016)

IN THE MAGISTRATE COURT
SITTING AT NAUSORI

Criminal Case No. 430 of 2016

State

v

Eliki Qalubau

Prosecution : Sgt Rao

Accused : Present – In Person

Sentence

Eliki Qalubau, this is your sentence. You pleaded guilty on your own free will after waving right to legal counsel and you also admitted the statement of facts. You are charged with unlawful cultivation of Illicit drugs. The quantity was 4 plants weighing 250 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

The accused’s mitigation was that he is 30 years old, Married with one child, wife currently pregnant, farmer, earning $80/month.

The Starting Point and Calculation of Sentence

This Court adopts the Tariff as set out by Justice Temo. The quantity of the drugs in this case falls in category 2. The tariff suggested is 1 to 3 years imprisonment.

Noting the nature of offending and the quantity of the drugs the Court takes 2 years (24 months) as a starting point. For the guilty plea, time spent in custody and mitigation the court gives 11 months discount. The accused is to serve 13 months in prison.

The simple message to drug cultivators is that they will get custodial sentence as per the tariff set out by the Courts they cannot expect any mercy from the Court. For this reason your sentence will not be suspended. The drug problems need to be eradicated and our society must be drug free.

Summary:

13 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

18/7/2016