Republic v Utimawa [2025] KIHC 79; Criminal Case 00313 of 2025 (23 December 2025)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE 2025-00313

BETWEEN: THE REPUBLIC

AND: TOM UTIMAWA

Date of Hearing: 17 September 2025
Date of Judgment: 23 December 2025

Appearances: Mr Tairaki Ioane for the Republic

Mr Banuera Berina for the Accused

SENTENCE

Brief Fact

1. Tom Utimawa pleaded guilty to one count of cultivation of Indian hemp contrary to section 8(a) of the Dangerous Drugs Ordinance, Cap 23. This relevant provision is quoted below;
   

“8. Every person-

(a) Who knowingly cultivates opium poppy, Indian hemp or coca leaf, whether for private use or otherwise; or

Shall be guilty of an offence under this Ordinance.”

2. The offence carries a maximum penalty of a fine of $2000 and imprisonment for 10 years pursuant to section 39(2) of the Dangerous Drugs Ordinance.
   
3. Below are the agreed facts;
   

“On 26 May 2021, around 1500 hrs to 1700 hrs in the afternoon, the Criminal Investigation team carried out a raid at Tom Utimawa’s home in Bonriki Tekaawa camp, following a report about the suspicion of possession of an Indian hemp, which is known as marijuana.

During the raid, the police managed to find dried leaves with branches of Indian hemp (marijuana) kept inside Tom’s sleeping hut and 2 Indian hemp (marijuana) plants being cultivated inside Tom’s backyard garden. The three samples of marijuana found at Tom’s residence were taken to the police station and tested for cannabis. The result of the test proves that the three samples have tested positive and prove that the plants contain cannabis, and conclude that the three samples are Indian hemp or marijuana.

During the interrogation of the accused, he admits that he is the one cultivating the plant and claims that he kept them for his personal consumption (smoking). So, the accused has knowledge that the plant he cultivated is marijuana, and he intends to plant them for his own consumption or smoking.

DATED THIS DAY, 06 OF JUNE 2025.”

4. The prosecution raises a starting point of $1000 and 5 years, as cultivation is a serious crime because it involves multiplying the illegal plant. The accused cultivated two Indian hemp plants in his backyard.
   
5. The accused is also aware that the plant he cultivated was Indian hemp, as he stated it was for his personal use for smoking. He also has two prior convictions: one in 1998 for throwing an object, for which he was fined $10. The second conviction concerned drunk and disorderly and criminal trespass, for which he received the same fine of $10 for both offences. The accused is in his fifties and must demonstrate good character. The Prosecution submits that $200 and 12 months must be added to the starting point for these aggravating factors.
   
6. Mitigating factors are also raised by the Prosecution as follows: the accused’s early plea, which should entitle him to a reduction of 1/3 of the sentence. He also cooperated well with the police during the raid, thus allowing a reduction in his sentence by another $100 and 6 months.
   
7. A delay of prosecution was also raised since the offence was committed in 2021 and the trial happened in 2025; therefore, 6 months and $100 must be deducted. Thus, the end sentence proposed is $600 fine and 36 months imprisonment.
   
8. The prosecution raises the importance of a sentencing principle such as public deterrence. Counsel submits that there is increasing use of this illegal plant by the public, and it is essential to impose a penalty that would deter the accused and members of the public from committing the same offence.
   
9. The Prosecution referred to three cases involving marijuana, namely Republic v Foliki [2021] KIHC 12; Criminal Case 51 of 2020 (25 November 2021), Republic v Morlier [2015] KIHC 82; Criminal Case 09 of 2015 (23 October 2015), and the most recent, The Republic v Takabwebwe Timerita HCCrmC 2025-00309, in which the offender was involved in selling this Indian hemp to a teenager. The Prosecution also noted that in the past, there were only a few marijuana cases and that the High Court had imposed lower sentences. The situation has since changed, with an increase in reports to the Police regarding the use of marijuana.
   
10. The Defense proposes a fine of $100 for the offence committed by the accused. In support of this request, Counsel highlights the early guilty plea, cooperation with police, and argues that the plants were intended for personal use only, not for sale. They also mention that only two plants were cultivated, indicating a limited quantity. Additionally, Counsel raises concerns about the delay in prosecution, noting that the offense was committed in 2021 while the charge was laid more than three years later. Further, it was also submitted that the accused had given up smoking the Indian hemp, knowing that it is a serious crime.
    
11. His personal circumstances as a 55-year-old family man include being married with four children and four grandchildren. They live on the same land, but his eldest, with his family, lives in a different house. His two youngest children are still attending educational institutions. None of them has paid jobs, and their lives depend mainly on subsistence living. He was a seaman before, which is why he started using marijuana, but this has stopped now after this offense. They struggle most of the time to make a living, and his family depends on him to meet their needs.
    
12. The Defense also referred this Court to the case of Foliki, emphasizing the quantity of the plants cultivated, the fact that the accused did not use them, did not hide them, pleaded guilty at the earliest opportunity, and had no previous conviction. The sentence in that case was only a $250 fine.
    
13. Their reply to the submission that the sentence must focus on the principle of deterrence is that there is no need because the offender has learned his lesson from this one offense, having quit smoking marijuana since the day of the raid in 2021, and that there is normally no public media coverage of criminal cases, so the public would not know about this case.
    
14. I have reviewed both submissions and the relevant case authorities, and I concur that deterrence should be considered in the sentencing. We should not wait until an increase in the number of drug users occurs in our country, as deterrence is fundamentally about prevention. Offering lighter penalties for drug use, such as marijuana, could inadvertently encourage others in the community to commit the same offence. Since Kiribati is a small society, news spreads quickly within communities even without media coverage.
    
15. For the reasons stated above, I sentence the offender to 18 months of imprisonment, suspended for two years, and a fine of $600 payable within two weeks. The offender must not commit any offence during the suspension period; otherwise, he will face prosecution for that offence and be imprisoned for the current offence.
    

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice