Regina v Gome [2016] SBMC 6; Criminal Case 10 of 2016 (1 April 2016)

IN THE CENTRAL MAGISTRATE COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 10 of 2016

IN THE MATTER OF: SENTENCE FOLLOWING GUILTY PLEA

BETWEEN: REGINA

AND: BEN GOME

Prosecution: Mr. A. Horesi of Police Prosecutions Office (PPO)
Defence: Mr. C. Ruele of Public Solicitors Office (PSO)
Plea Date: March 23, 2016
Sentencing Submissions: March 30, 2016
Sentence Delivered: April 1, 2016

SENTENCE

1. The accused, Ben Gome, pleaded guilty to one count of growing Indian hemp (marijuana) contrary to section 8(a) of the Dangerous Drugs Act and one count of in possession of Indian hemp (marijuana) contrary to section 8(b) of the Dangerous Drugs Act.
   
2. For each offence, it carries a maximum penalty of fine of $5,000 or 6 months imprisonment pursuant to section 8 schedule 12 of the Penalties Miscellaneous Act 2009 as read together with section 39(2)(b) of the Dangerous Drugs Act.
   
3. The facts of the case revealed that between 1^st of July 2015 and 7^th of July 2015, the accused grew a marijuana plant in a garden close to his dwelling house at Belaga village, Central Islands Province. Police received a report about that illegal planting of the marijuana and attended to his village. Upon arrival, police proceeded to the garden and located few marijuana plants including the one planted by the accused. The other plants were planted by the other suspects who are yet to be arrested. Police then uprooted those plants. When they returned from the garden and approached his house, police discovered a lot a dry braches of the marijuana plants at the veranda of his house. These were then confiscated and taken for destruction. The accused was arrested, taken over to Honiara and remanded in custody since 12^th of January 2016.
   
4. The growing and possession of marijuana is illegal in our jurisdiction. In terms of growing, it is consideredas a seriousoffence under the Dangerous Drugs Act because it encourages the production of the plants to grow in number despite numerous efforts by the police in destroying the plants in the past. Not only that, but those who continue to plant them, they simply undermine the efforts of the lawful authorities to discourage people from using them and are clear obstacles to all efforts to weed out this prohibited drug from our country.
   
5. In your case, despite you grew only one plant, you clearly planned to commit this offence.It was deliberate and a carefully planned offending. This was reflected by the fact that you made a decision and successfully grew it knowing that it is prohibited in our country.Apart from growing, you also carried the braches of the marijuana plants and stored them in your house to ensure they were safe and protected from rain. You possessed the marijuana leaves in a significant quantity described by “a lot of dry branches”. I take judicial notice that there were many leaves in a single branch. The more branches the more leaves they have. The fact that you grew and kept them in your house, you also exposed those individuals who may use them to health risks. I considered these as the aggravating features in your offending.
   
6. On the other hand, I take into account your guilty pleas, you are a first time offender, very remorseful and cooperated well with police. Your cooperative behaviour eventually resulted in your decision to admit these offences by your own unequivocal guilty plea. I also noted that you are 19 years of age and is considered as a young person. I am obliged to consider your youth as a mitigating factor as stated in Oiofa v R.^[1]
   
7. Your lawyer has referred this Court to the case of Warnecke v R^[2] and R v Louise Pamela Kelly^[3]as guidance in terms of the likely penalty to be imposed on you. In the case of Warnecke, the Magistrates Court imposed a sentence of 3 months on the offender who pleaded guilty to growing 7 marijuana plants at Mount Austen. He appealed against his sentence on the basis that it was excessive. The High Court dismissed the appeal and maintained the sentence of 3 months imprisonment. Daly CJ, when dismissing his appeal made these remarks:
   

“It seems to this Court that the observations as to the course to be adopted by courts facing the initial stages of a dangerous drug problem are entirely sound. No country wants prohibited drugs within its shores if it can possibly avoid it and it is the duty of the courts to reflect that view. Solomon Islands has been fortunate in avoiding that kind of problem and we should do everything in our power to retain that fortunate position. I agree with the learned magistrate that in the present situation of Solomon Islands offences of this kind, whoever they are committed by, require deterrent sentences.”^[4]

8. The above statements clearly reflected that the Court’s disapproval when dealing with this type of drug offences which I am bound to follow.
   
9. In the present case, the accused only grew one marijuana plant. Hence, his level of offending is different from the case of Warneckewhere in that case the accused had planted 7marijuana plants. A comparative look at his culpability, his level of offending is minimal compared to the case of Warnecke. However, I noted that this case was decided 18 years ago and this raises the question whether the crime rate for this offending at that time is the same to the present circumstances. In my view, the sentence imposed by that case is no longer relevant taking into account the prevalence of this offending, contemporaneity and the need for the law to adjust itself to the present circumstance experienced by our country.
   
10. In R v Louise Pamela Kelly^[5], the defendant, an expatriate pleaded guilty to possession of a prohibited substance, Indian hemp or marijuana. The sentencing Magistrate imposed a fineof $300 in default 3 months imprisonment. The reason why the Court reached this sentence is unclear from the facts. However, it can be gleaned from that approach that sentencing is a matter entirely in the discretion of the Court taking into account the fact of that case. Since that case has no binding effect on me, I decide to reserve my view whether or not to accept this decision.
    
11. These are offences which require a deterrent message. It requires the Courts to be vigilant when imposing sentences on the offenders who use and possess prohibited drugs in our country. That approach is not only to discourage further commission of these offences by likeminded offenders but to protect the current crop of youths or individuals who are at risk of becoming mentally affected by the use of this harmful substance. Take a look around our streets or even at our various rural areas, it doesn’t take long for any ordinary person to realise that a lot of our youths or potential future leaders have now become mentally retarded from the use of this illicit drug. Unfortunately, they were handicapped and deprived ofliving a life enjoyed by normal persons because of their mental conditions. A mental condition not inherited by birth but developed only through the use of the drug, an unfortunate state of life not wish for by their parents and families. In the present case, you are fortunate that you did not mentally affect at this stage. So perhaps seized this opportunity as your turning point.A point of reflection and positive decision making, knowing that you are still young and have more to offer in life.
    
12. Based on these factors I have alluded to and taking into account all the mitigating and aggravating features, I impose the following sentences in respect to your charges:
    
    • (i) Charge of growing Indian hemp (marijuana) contrary to section 8(a) of the Dangerous Drugs Act –3 months imprisonment.
    • (ii) Charge of in possession of Indian hemp (Marijuana) contrary to section 8(b) of the Dangerous Drugs Act –2 months imprisonment.
      
13. Both sentences will be consecutive since they occurred on separate dates. I order that 1 month is reduced to reflect his youthfulness and guilty plea. The resulting sentence therefore is the accused Ben Gome will serve 4 months in prison. Time spent in custody is to be taken into account.
    

ORDERS OF THE COURT:

(A) Impose 4 months resulting sentence for both offences.
(B) Time spent in custody is to be taken into account.
(C) Any marijuana plants or substances still confiscated by police for this case should be destroyed forthwith as soon as practicable.

....................................................................................
THE COURT

Augustine Aulanga (Mr)

(Principal Magistrate)

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^[1] [2012] SBHC 66
^[2] [1998] SBHC 10
^[3] CMC CRC-538 of 2008
^[4]At page 2
^[5] CMC CRC-538 of 2008