State v Leitabu [2024] FJMC 41; Criminal Case 49 of 2024 (4 September 2024)

IN THE MAGISTRATE’S COURT AT SIGATOKA

CRIMINAL JURISDICTION

Criminal Case No. 49/2024

The State –v- Isaia Leitabu

For the State: PC Kamea

For the Accused: Mr. Waqavakatoga

SENTENCE

1. Isaia Leitabu you have voluntarily pleaded guilty out of your own free will to the charge of Unlawful Cultivation of Illicit Drugs contrary to section 5 (a) of the Illicit Drugs Act. I take it that your plea of guilty was taken and entered unequivocally.
2. The facts are that on the 24^th January 2024 you had shown the police 42 plants of cannabis sativa otherwise known as marijuana, which is an illicit drug at Tobutaibale Farm off Taunovo Village in Vatulele Island. These plants were cultivated by you. You were then arrested for this offence and interviewed under caution. The 42 plants were analyzed and confirmed to be cannabis sativa, an illicit drug and weighed at 7,020 grams or 7.2 kilograms and 48 to 210 cm in height. You were subsequently charged for this offence.
3. You pleaded guilty and you also admit the summary of facts. You are a first offender. Your plea in mitigation are as follows: -
   • - You are 52 years of age, widower and have 5 children.
   • - You sell tapa and are a farmer and fisherman earning about $100 a week.
   • - You are remorseful and you seek Court’s forgiveness.
   • - You have pleaded guilty and have saved the Court’s time.
   • - You promise not to reoffend.
     

4. The State recommends an appropriate sentence be imposed on you.

5. In passing sentence on you, the Court is guided by Ratu v State [2024] FJSC 10; CAV 24.2022 (25 April 2024).
6. It is clear that the Supreme Court is working on a new Sentencing Guideline on this offence. In the meantime, the Courts are directed to the now binding sentencing range that has been applied in Seru v State [2023] FJCA 67; AAU115.2017 (25 May 2023) for unlawful cultivation offences. This is what the Fiji Court of Appeal said in Seru:

“Sentencing guidelines (Cultivation of cannabis sativa/marijuana) in Fiji

[33] Therefore, considering the offending of cultivation of cannabis sativa/marijuana and sentencing regimes in other jurisdictions, the sentencing guidelines in UK appear most suitable for assistance in formulating sentencing tariff for cultivation of cannabis sativa/marijuana in Fiji as approved by the Supreme Court in Tawake. Under the Illicit Drugs Control Act 2004, the maximum punishment for Unlawful Cultivation is a fine not exceeding $1,000,000 or imprisonment for life or both.

[34] In Zhang v R [2019] NZCA 507 the Court of Appeal of New Zealand made the following remarks on the importance of the role played by the offender in the matter of sentence.

‘Sentencing must achieve justice in individual cases. That requires flexibility and discretion in setting a sentence notwithstanding the guidelines expressed

‘...the role played by the offender is an important consideration in the stage one sentence starting point. Due regard to role enables sentencing judges to properly assess the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending

Although we do not adopt the two grid matrix (involving quantity bands record that, in assessing role, sentencing judges may find it helpful to have regard to the Council’s categorizations of role (into “leading”, “significant” and “lesser”). In considering the individual appeals before us, we make use of those categorizations.’

[35] Firstly, the court should determine the offender’s culpability (role) and then the harm caused (output or potential output). Then, the court should use the starting point given in the Sentencing Table below to reach a sentence corresponding to the role and category identified. The starting point applies to all offenders irrespective of plea or previous convictions. A case of particular gravity, reflected by multiple features of culpability or harm could merit upward adjustment from the starting point. After further adjustment for aggravating or mitigating features a sentence within the range in the Sentencing Table below should be arrived at. Thereafter, reduction for guilty pleas, time in remand, totality principle etc. would complete the sentencing process.

[36] CULPABILITY. Culpability is demonstrated by the offender’s role as given below. In assessing culpability, the sentencer should weigh up all the factors of the case to determine role (leading role, significant role or lesser role). Where there are characteristics present which fall under different role categories, or where the level of the offender’s role is affected by the scale of the operation, the court should balance these characteristics to reach a fair assessment of the offender’s culpability. Thus, it must be borne in mind that these roles may overlap or a single offender may have more than one role in any given situation. The demarcation of roles may blur at times. The sentencers should use their best judgment and discretion in such situations.

Leading role:

• Owner, organizer, initiator or principal party in the venture. Involved in setting-up of the operation, for example obtaining the lands, premises, workers and equipment with which to carry out the cultivation. May have one or more such ventures.
• Directing or organizing production/cultivation on a commercial scale
• Substantial links to, and influence on, others in a chain
• Close links to original source
• Expectation of substantial financial or other advantage
• Uses business as cover
• Abuses a position of trust or responsibility

Significant role:

• Play a greater or dominant part. Running the operation.
• Operational or management function within a chain. May make arrangements for the plants to be brought in, and the crop to be distributed. They may help to run more than one operation and be involved in making payments, such as rental payments, albeit again on instructions from those running the operation.
• Involves others in the operation whether by pressure, influence, intimidation or reward
• Expectation of significant financial or other advantage (save where this advantage is limited to meeting the offender’s own habit), whether or not operating alone
• Some awareness and understanding of scale of operation

Lesser role:

• Secondary party. Sometimes as “gardeners” tending the plants and carrying out what m ight be described as the ordinary tasks involved in growing and harvesting the cannabis. Simply be doing their tasks on the instructions of above in the hierarchy. May get paid for the work or subsistence.
• Performs a limited function under direction
• Engaged by pressure, coercion, intimidation, grooming and/ or control
• Involvement through naivety, immaturity or exploitation
• No influence on those above in a chain
• Very little, if any, awareness or understanding of the scale of operation
• If own operation, solely for own use (considering reasonableness of account in all the circumstances)
• Expectation of limited, if any, financial advantage, (including meeting the offender’s own habit)

[37] HARM. In assessing harm, output or potential output are determined by the number of plants/scale of operation (category 01, 02, 03 or 04). The court should determine the offence category from among 01- 04 given below:

• Category 1 – Large scale cultivation capable of producing industrial quantities for commercial use with a considerable degree of sophistication and organization. Large commercial quantities. Elaborate projects designed to last over an extensive period of time. High degree of sophistication and organization. 100 or more plants.
• Category 2 – Medium scale cultivation capable of producing significant quantities for commercial use i.e. with the object of deriving profits. Commercial quantities. Over 50 but less than 100 plants.
• Category 3 – Small scale cultivation for profits capable of producing quantities for commercial use. 10 to 50 plants (with an assumed yield of 55g per plant).
• Category 4 – Cultivation of small number of plants for personal use without sale to another party occurring or being intended. Less than 10 plants (with an assumed yield of 55g per plant).

[38] SENTENCING TABLE (cultivation of cannabis sativa).

Culpability Harm	LEADING ROLE	SIGNIFICANT ROLE	LESSER ROLE
Category 1	Starting point 18 years’ custody	Starting point 14 years’ custody	Starting point 9 years’ custody
	Category range 16 – 20 years’ custody	Category range 12 – 16 years’ custody	Category range 7 years’ – 12 years’ custody
Category 2	Starting point 14 years’ custody	Starting point 9 years’ custody	Starting point 5 years’ custody
	Category range 12 years– 16 years’ custody	Category range 7 years’– 12 years’ custody	Category range 3 years– 7 years’ custody
Category 3	Starting point 9 years’ custody	Starting point 5 years’ custody	Starting point 18 months’ custody
	Category range 7 years’– 12 years’ custody	Category range 3 years’– 7 years’ custody	Category range 1 year – 3 years’ custody
Category 4	Starting point 5 years’ custody	Starting point 18 months’ custody	Starting point
	Category range 3 years’ – 7 years’ custody	Category range 1 year – 3 years’ custody	Category range Non-custodial – suspended sentence

[39] Aggravating and mitigating features. This is not an exhaustive list.

Statutory aggravating factors:

• Previous convictions, having regard to a) nature of the offence to which conviction relates and relevance to current offence; and b) time elapsed since conviction (see Naureure v State [2022] FJCA 149; AAU151.2020 (12 December 2022) at [32] –[39] for a detailed discussion on this aspect)
• Offence committed on bail

Other aggravating factors include:

• Exploitation of children and/or vulnerable persons to assist in drug-related activity
• Exercising control over the home of another person for drug-related activity
• Nature of any likely supply
• Level of any profit element
• Use of premises accompanied by unlawful access to electricity/other utility supply of others, where not charged separately
• Ongoing/large scale operation as evidenced by presence and nature of specialist equipment
• Exposure of drug user to the risk of serious harm over and above that expected by the user, for example, through the method of production or subsequent adulteration of the drug
• Exposure of those involved in drug production/cultivation to the risk of serious harm, for example through method of production/cultivation
• Exposure of third parties to the risk of serious harm, for example, through the location of the drug-related activity
• Attempts to conceal or dispose of evidence, where not charged separately
• Presence of others, especially children and/or non-users
• Presence of weapons, where not charged separately
• Use of violence (where not charged as separate offence or taken into account at step one)
• Failure to comply with current court orders
• Offence committed on licence or post sentence supervision
• Offending took place in prison (unless already taken into consideration at step 1)
• Established evidence of community impact
• Use of sophisticated methods or technologies in order to avoid or impede detection
• Use of indoor growing system (hydroponic method) to increase the growth and harvesting period and THC in the plants
• Growing for personal use but supplying to others on a non-commercial basis
• Period over which the offending has continued.
• Estimated value of the crop, if available.
• Assumed yield or the weight of dried cannabis
• Supply to others on a non-commercial basis in category 4.

Factors reducing seriousness or reflecting personal mitigation

• Involvement due to pressure, intimidation or coercion falling short of duress (as opposed to being a wiling party), except where already taken into account at step one. Acting under duress or undue influence.
• Isolated incident
• No previous convictions or no relevant or recent convictions
• Offender’s vulnerability was exploited
• Remorse
• Good character and/or exemplary conduct
• Determination and/or demonstration of steps having been taken to address addiction (whose offending sits at the lower end of the scale in terms of seriousness) or offending behavior
• Serious medical conditions requiring urgent, intensive or long-term treatment
• Age and/or lack of maturity
• Mental disorder, impairment or diminished responsibility short of insanity or learning disability
• Personal circumstances, sole or primary carer for dependent relatives only in relation to category 4.
• Assumed yield or the weight of dried cannabis
• Sales are infrequent and of limited extent in category 3.

[40] Cultivation of illicit drugs has been held to be a more serious offence than mere possession in that the latent risk to consumers and potential consumers is dramatically increased. It was held by the English Court of Appeal in Auton [2011] EWCACrim76:

“Cultivation is further widening and socializing the use of an illegal drug and making it available in the circumstances where the risk of detection is reduced.”

[41] In Zhang it was held that:

‘Deterrence, denunciation and accountability are likely to be at the forefront of decisions in drug cases....’

[42] Again in R v Xiong Xu [2007] EWCA Crim 3129 the Court of Appeal (Criminal Division) in UK it was said that:

‘3. ....The fact that these operations are so remunerative means that the court is bound to consider deterrent sentences. Clearly the value of a deterrent sentence may be less in relation to those at the bottom end of the hierarchy,..... But for those with greater involvement, the length of sentence must reflect the fact that they stand to make a substantial profit from their criminal activities....’

[43] In R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62, the Court of Appeal of New Zealand held:

‘[15] The paramount consideration, is, we repeat, the deterrence of others, and by that means to reduce the prevalence of cannabis use and dependence in this country...’

[44] In following this guideline judgment the sentencers should also remember the remarks in Zhang where New Zealand Court of Appeal further stated:

‘[47] The prime justification and function of the guideline judgment is to promote consistency in sentencing levels nationwide. Like cases should be treated in like manner, similarly situated offenders should receive similar sentences and outcomes should not turn on the identity of the particular judge.

[48] Consistency is not of course an absolute and in the guideline judgments, this Court has been careful to emphasise that sentencing is still an evaluative exercise. The guideline judgments are just that, “guidelines”, and must not be applied in a mechanistic way. The bands themselves typically allow a significant overlap at the margins. Sentencing outside the bands is also not forbidden, although it must be justified.’

[45] Sentencing is founded upon two premises that are in perennial conflict: individualized justice and consistency. The first holds that courts should impose sentences that are just and appropriate according to all of the circumstances of each particular case. The second holds that similarly situated offenders should receive similar sentencing outcomes. The result is an ambivalent jurisprudence that challenges sentencers as they attempt to meet the conflicting demands of each premise[8].

[46] Sentencing guidelines are designed to find the correct equilibrium between giving a sentencing magistrates or judges sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases. Justice O'Regan in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) went to significant lengths to highlight the need to avoid a ‘rigid or mathematical approach’.”

7. Bearing the above mind, we now look at 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."

8. According to the tariff in Seru, you qualify as a Category 3 Offender as you cultivated less than 50 plants. I have also assessed your culpability in this matter and in absence of any particular fact adduced by the State, I find you possessed a lessor role in the commission of this offence. I therefore commence imprisonment at 18 months imprisonment. There are no aggravating factors as they are subsumed in the facts. I deduct 4 years for your mitigating factors, leaving you with a balance of 14 months imprisonment. I deduct a further 5 months for your guilty plea. This leaves you with a balance of 9 months imprisonment.
9. Pursuant to section 4 (1) of the Sentencing and Penalties Act 2009, this sentence is designed to punish you in a manner that is just in all the circumstances of the case, to protect the community of Vatulele Island, to deter other would-be offenders and to signify that the court and community denounce the unlawful cultivation of cannabis sativa plants.
   
10. Isaia Leitabu, for the offence of Unlawful Cultivation of Illicit Drugs, you are sentenced to a term of 9 months imprisonment.
    

11. This term is to be served immediately.

12. I also direct that any remaining drugs in police custody are to be destroyed within 21 days before the Officer in Charge of the Sigatoka Court or her delegate.

13. 28 days to appeal.

J Daurewa

Resident Magistrate

4^th September 2024