State v Bogitini - Sentence [2018] FJMC 83; Criminal Case 483 of 2018 (4 September 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case : 483/2018

STATE
V
VASITI BOGITINI

For the Prosecution: WPC Siteri

For the accused: Mr.Dinati

Date of hearing: 04^th of September 2018

Date of Sentence : 04th of September 2018

SENTENCE

1. VASITI BOGITINI, you pleaded guilty this morning to two counts Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act No 09 of 2004.
2. You also admitted that on 25^th of June 2018 you had in your possession 0.01 grams of Methamphetamine which is commonly known as ICE as well as 14.5grams of Cannabis Sativa. The police raided your house at Vuci Road, Nausori on 25^th June 2018 around 0620hrs and found the drugs inside your room.
3. I am satisfied that your plea was voluntary and unequivocal. Accordingly I convict you for this charge.
4. 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.

5. Your counsel in mitigation submission submitted that you fall in to 1^st category in Sulua v State (supra) and proper sentence would be a fine or a suspended sentence in this case for both counts.
6. This submission is misconceived as for hard drug like Methamphetamine there is a different tariff presently.
7. 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.”

8. 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).”

9. 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.
10. 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 for the possession of Methamphetamine which would be the base sentence in this case.
11. There are no aggravating factors and in mitigation I consider that you are 43 years old, separated from the husband, first offender and mother of two small children. For these mitigating factors I deduct 05 months to reach 10 months imprisonment.
12. You pleaded guilty early without wasting the time and resources of this court and for that I deduct 1/3 to reach 06 months imprisonment.
13. Considering all the circumstances I sentenced you to 02 months imprisonment for the possession of Cannabis. This is concurrent to the 06 months imprisonment.
14. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
15. 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.”

16. 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.”

17. Recently the Fiji police revealed that Nakasi-Nausori corridor has been identified as the main market of methamphetamine in Fiji. Hence I find a custodial sentence is warranted in this case to deter people from possessing and using this highly addictive drug and to protect the young people from this menace in this country. 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.”
18. VASITI BOGITINI, accordingly I sentenced you to 06 months imprisonment for this charge.
19. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate