State v Prasad [2018] FJMC 67; Criminal Case 482 of 2018 (6 July 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case : 482/2018

STATE
V
REGINALD PRASAD

For the Prosecution: WPC Siteri

The accused: In person

Date of hearing: 27^th of June 2018

Date of Sentence : 06^th of July 2018

SENTENCE

1. REGINALD PRASAD, you pleaded guilty to one count Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.
2. Admitted summary of facts shows that on 25^th of June 2018 you had in your possession 0.01 grams of Methamphetamine which is commonly known as ICE. The police stopped a taxi after noticing it traveling in suspicious manner and found the drugs at the bottom of the passenger seat where you were sitting. In your caution interview you admitted to this offence.
3. I am satisfied that your plea was voluntary and unequivocal. Accordingly I convict you for this charge.
4. The maximum penalty for Possession of Drugs is life imprisonment/ $100,000.00 fine.
5. His lordship Justice Temo in State v Vakula (Criminal Case No HAC 247 of 2016s) said :

In R v Fatu (supra), the New Zealand Court of Appeal said the guidelines mentioned in paragraphs 6, 7, and 8 hereof, apply only to offending involving methamphetamine . Both counsel for the State and the accused in this case appear to be submitting that, we follow the sentencing guidelines laid down in R v Fatu (supra), pending a review of the same by the Fiji Court of Appeal and/ or the Supreme Court of Fiji in future. I agree with both counsels, In State v Aniars Kreimanis, Criminal Case No HAC 225 of 2011L, High Court, Lautoka, His Lordship Mr. Justice S. De. Silva, on 15 October 2013, said, there was no tariff for possession of methamphetamines in Fiji. In that case, His Lordship sentenced the accused to 13 years imprisonment, with a non- parole period of 12 years, for possessing 5.6. kilograms of methamphetamine .

In my view, given the above, as an interim measure, we need to adopt the sentencing guidelines expounded in R v Fatu (supra) above. Methamphetamine , as an illicit drugs, is new to Fiji. However, the New Zealand Courts had been dealing with this problem for a while, and it was only fair in the public interest, that we learn from their experiences and adopt their sentencing guidelines in Fiji, pending a review in the future by our Superior Courts.”

6. His lordship then went on discussing the tariff limits expounded in R v Fatu (supra), and said that:

“The New Zealand Court of Appeal came up with the following sentence guidelines after much discussion on previous New Zealand sentencing guidelines. For cases involving the sale or supply of methamphetamine , the sentence guideline were as follows:

1. Band one – low-level supply (less than 5 g) – two years’ to four years’ imprisonment.
2. Band two – supplying commercial quantities (5 g to 250 g) – three years’ to nine years’ imprisonment.
3. Band three – supplying large commercial quantities (250 g to 500 g) – eight years’ to 11 years’ imprisonment.
4. Band four – supplying very large commercial quantities (500g or more ) – ten years’ to life imprisonment.

We emphasise that these are starting points, before taking into account aggravating and mitigating factors relating to the offender (as opposed to the offending). We also note that supply in small quantities where there is no commerciality and no other aggravating features may call for starting points less than those indicated as appropriate for band one...” (page 80)

In cases involving the importation of methamphetamine , the sentence guidelines were as follows:

1. Band one – low level importing (less than 5 g) – two years six months’ to four years six months’ imprisonment.
2. Band two – importing commercial quantities (5 g to 250 g) –three years six months’ to ten years’ imprisonment.
3. Band three – importing large commercial quantities (250 g to 500 g) – nine years’ to 13 years’ imprisonment.
4. Band four – importing very large commercial quantities (500g or more) – 12 years’ to life imprisonment.

As indicated, in cases where small quantities of methamphetamine have been imported for personal consumption, it is open to sentencing Judges to treat band one as not applicable. We emphasise that these bands are otherwise applicable to all who import methamphetamine , including those whose roles are as “mules”. Obviously the more significant the role of the offender in any importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band...” (page 81)

In cases involving the manufacturing of methamphetamine , the sentence guidelines were as follows:

1. Band one – not applicable for reasons given in para [42].
2. Band two – manufacturing up to 250 g – four years’ to 11 years’ imprisonment.
1. Band three – manufacturing large commercial quantities (250 g to 500 g) = ten years’ to 15 years’ imprisonment.
2. Band four – manufacturing very large commercial quantities (500 g or more ) – 13 years’ of life imprisonment.

The sentence imposed must reflect not only the quantity of the drug involved, but also the role of the particular offender in the manufacturing ring in question...” Page 82).”

7. In State v Nand [2018] FJHC 499; HAR03.2017 (12 June 2018) the court held that tariff limit expounded in R v Fatu (supra) in respect of sales and supply of methamphetamine would appropriately apply to the offence of possession of methamphetamine as stipulated under the illicit Drug Control Act.
8. Considering the small quantity of drugs (0.01grams) and as there is no evidence of the commerciality, I select 15 months as the starting point for your sentence.
9. The drugs were concealed at the bottom of the passenger seat to prevent from exposing to the authorities. This shows some planning from your part. I consider this as aggravating factor and add 05 months to reach 20 months imprisonment.
10. In mitigation you submitted that you are 30 years old, mechanic with an income of $200.00 fortnightly. You have no previous convictions. For these I deduct 05 months to reach 15 months imprisonment.
11. You pleaded guilty early without wasting the time and resources of this court and for that I deduct 1/3 to reach 10 months imprisonment.
12. Now I have to consider whether to suspend this sentence.
13. In ATTORNEY GENERAL v. CHING KWOK HUNG([1991] HKCA 17; CAAR 15/1990 (7 May 1991). ) the court observed that :

“We are persuaded that ICE is a drug to be taken very seriously indeed. In ways it is more deleterious to its abusers and to society in general, than is heroin. In our judgment guidelines should emerge now before ICE becomes prevalent in Hong Kong in order to deter both those who would seek to use it and those who would seek to exploit the abuser.”

14. Dangers of methamphetamine to the users are well documented. In National Institute of Justice Journal Issue No. 254 it has been said :

“But a methamphetamine user is not the typical drug user. That is because methamphetamine has acute toxic effects that produce long-term problems for the user and those around him/her. It is a powerful central nervous system stimulant that promotes the release of neurotransmitters that control the brain’s messaging systems for reward and pleasure, sleep, appetite, and mood. However ingested (injected, taken orally, or snorted), methamphetamine produces extended highs and potentially agitated or overenergized states.

Chronic use of methamphetamine causes long-term alterations to users’ brain chemistry and structure that result in impaired memory, mood alterations, impaired motor coordination, and psychiatric problems, even long after terminating use. The short-term management of the agitated user at arrest and the long-term health problems that jails and lock-ups must deal with make methamphetamine users a serious logistical and financial burden, particularly in areas with limited manpower or resources.”

15. In my view the main consideration in sentencing is to deter people in Fiji from using this highly addictive drug which would cause havoc in society. Even though there is no evidence before me to show the use of methamphetamine is wide spread in this country compared to other drugs like cannabis, as Cons, J.A. (as he then was) in The Attorney General v. Leung Pang Chiu [1986] HKLR 608 said: "It is better to eradicate a bad habit before rather than after it has taken a firm hold.”
16. Hence I find a custodial sentence is warranted in this case to deter people from possessing and using this drug and to protect the young people from this menace.
17. REGINALD PRASAD, accordingly I sentenced you to 10 months imprisonment for this charge.
18. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate