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State v Tokoni [2018] FJMC 32; Criminal Case 100.2015 (4 April 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT TAILEVU

Criminal Case : 100/2015

STATE
V
VAIRUSI TOKONI

For the Prosecution: WPC Siteri

The accused: In person

Date of Hearing: 03rd of April 2018

Date of Sentence : 04th of April 2018

SENTENCE

  1. VAIRUSI TOKONI, you were charged with one count of Unlawful Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004(“ Illicit Drugs Control Act”) and one count of Unlawful Cultivation of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act .
  2. You initially pleaded not guilty after represented by the Legal Aid. But on 26th March 2018 you waived right to counsel and pleaded guilty for both counts. On 03rd April 2018 when the prosecution filed an amended charge, again you pleaded guilty.
  3. You also admitted the following summary of facts presented by the prosecution:

On the 31st day of October 2015 at Delakado, Dawasamu, Tailevu in the Central Division one VAIRUSI TOKONI (B-1) 27 years, farmer of Delakado village was arrested for Unlawful Possession of Illicit Drugs and also Unlawful Cultivation of Drugs.


Briefly on the above mentioned date and place (B-1) was initially arrested for being found with possession of dried leave to be marijuana. Upon interrogation at the Police Station (B-1) admitted to DC3768 Marika Mare(A-1) Police officer, that he is also cultivating plants believed to be marijuana.


(A-1) with other Police offcer proceeded to (B-1)s plantation at the village, and uprooted all the marijuana plants they saw. All the plants were to the Fiji Police Forensics Chemistry Lab in Navosa for testing and were botanically proven to be of Indian Hemp or Cannabis Sativa.


(B-1) was caution interviewed and he was formally charged for Unlawful Possession of illicit Drugs and Unlawful Cultivation of Drugs.


  1. I am satisfied that your plea was made voluntarily after understanding the legal consequences and convict you for this charge.
  2. The maximum penalty for Possession of Illicit Drugs as well as Cultivation of Drugs is a fine not exceeding $1,000,000 or imprisonment for life or both.
  3. In Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) his Lordship Justice Temo set down the tariff for Unlawful Possession of the Illicit Drugs 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.

  1. But it appears that presently there are various decisions suggesting different tariffs for Cultivation of Drugs.
  2. In State v Ratokabula - Sentence [2018] FJHC 163; HAC360.2016S (9 March 2018) his Lordship Justice Temo said :

“The maximum sentence for “Unlawful Cultivation of cannabis sativa plants, an illicit drug ”, is a fine of $1,000,000 or life imprisonment or both (section 5 (a) of the Illicit Drugs Control Act 2004 ). Society, through Parliament, viewed the offence seriously. In Kini Sulua, Michael Ashley Chandra v State [2012] Fiji Law Reports, Volume 2, page 111, at paragraph 115 on page 143, the majority in the Court of Appeal laid down the following sentence guideline:


(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.

Although the above sentence guidelines apply to possession of cannabis sativa drugs , they also apply to unlawful cultivation of cannabis sativa plants. Please, refer to paragraph 116 and 117 of Kini Sulua, Michael Ashley Chandra v State (supra) in pages 143 and 144.”

  1. In State v Dukubure [2017] FJHC 310; HAC076.2017 (28 April 2017) his Lordship Justice Perera observed :

“ In the case of Tuidama v State [2016] FJHC 1027; HAA29.2016 (14 November 2016) this court decided to apply the following tariff for the offence of unlawful cultivation of illicit drugs;

  1. The growing of a small number of plants for personal use by an offender on a non-commercial basis - 1 to 2 years imprisonment;
  2. Small scale cultivation for a commercial purpose with the objective of deriving a profit - 3 to 7 years imprisonment;
  1. Large scale commercial cultivation - 7 to 14 years imprisonment.

Cultivating up to 10 plants can be considered as non-commercial cultivation if there is no other evidence to the contrary. Cultivating more than 10 plants up to 100 plants can be considered as a small scale commercial cultivation and cultivating more than 100 plants can be considered as a large scale commercial cultivation.”

  1. In Dibi v State [2018] FJHC 86; HAA96.2017 (19 February 2018) his Lordship Justice Madigan said :

“For ease of reference those tariffs as suggested by the U.K. Sentencing Council and adopted by this Court in Koroi are:


(i) Possession of up to 100 grammes or cultivation of no more than 5 plants, non custodial sentences at the discretion of the Court

(ii) Possession of 100-1000 grammes and cultivation of 5-50 plants; custodial sentences in the range of one year to six years

(iii) Possession of more than 1000 grammes and cultivation of more than 50 plants, custodial sentences of six years or more

(iv) Possession of very large quantities (5kg or more) custodial sentences in the range of 10 to 15 year


20.] There will be times when the plants are many, but small, yielding a minimal weight (as in the present appeal) and a balance will have to be struck between use of the above categories.

  1. In State v Vuicakau [2018] FJHC 12; HAC01.2018 (19 January 2018) his Lordship Justice Goundar said:

“Weight of Cannabis Sativa plants can be affected by whether the plants are in green or dried state and whether the stems and roots were detached before the weight was determined. In the case of cultivation, it is not the weight but the number of plants and maturity of the plants that are relevant.”

  1. In State v Vuicakau( supra) the court sentenced the accused to 04 years imprisonment for unlawfully cultivating 21 Cannabis Sativa plants.
  2. Based on the above observation in State v Vuicakau( supra) I find the for the offence of Cultivation it would be better to adopt the tariff in Tuidama v State( supra) which have dealt exclusively with the number of plants in deciding the sentence.
  3. You planted 20 plants with a height of 67cm – 135cm and fall in to the second category with the tariff of 3-7 years imprisonment.
  4. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) the Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

  1. Considering the objective seriousness I select 05 years as the starting point for your offence of Cultivation.
  2. There are no aggravating factors and in mitigation you submitted the following :
    1. You are 29 years old;
    2. Married with 2 children ;
    1. Farmer ;
    1. Wife is suffering from kidney problem;
    2. Seeking forgiveness.
  3. Even though in State v Vuicakau( supra) the court held that in Drug cases personal circumstances of the offender carry little value in sentencing, for the above mitigating factors and your past good behavior I deduct 01 year to reach 04 years imprisonment.
  4. You first appeared in the court in 2015 and pleaded guilty only in 2018. But even at this stage by your progressive approach you have saved the time and resources of the court. Hence I deduct 01 year from your sentence to reach 03 years imprisonment.
  5. For Possession of Unlawful Drugs I sentenced you to 03 months imprisonment to be concurrent to the sentence for cultivation.
  6. Your final sentence are as follows :
    1. Unlawful Possession of Illicit Drugs (1st count) – 03 months imprisonment.
    2. Unlawful Cultivation of Illicit Drugs (2nd count) – 03 years imprisonment.
  7. In the beginning you were remanded from 10/11/2015 to 05/09/2016 (nearly 11 months) and again from 26/03/2018 up to now you are in remand. Pursuant to section 24 of the Sentencing and Penalties Act I consider this period as the term of imprisonment you have already served.
  8. It is a common practice in remote areas in this country for the people to engage in drugs cultivation for personal consumption or commercial purposes. Even though the law enforcement agencies are regularly conducting raids it appears that it has not deterred the people from engaging in these unlawful practices. Hence custodial sentences would be meted out for anyone who is convicted for cultivating the drugs irrespective of their personal mitigating factors to denounce their behavior and to control this menace from spreading further in the country. VAIRUSI TOKONI, for these reasons I sentenced you to 03 years imprisonment with anon-parole period of 02 years.
  9. Considering the period you were in remand you have to serve 02 years for this charge with a non-parole period of 01 year imprisonment.
  10. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate

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