R v Delpech (CO 67/2019) [2020] SCSC 91 (07 February 2020);

Headnote and Holding: 

Cultivation of a controlled drug (4 cannabis plants) - possession of a controlled drug (174.50g cannabis) with intent to traffic – conviction – mitigation-medical condition.

Legislation considered: 

TWOMEY CJ

[1]            The convict has pleaded guilty to two offences namely: possession of a controlled drug contrary to section 6(2) of the Misuse of Drugs Act 2016 (hereinafter MODA) and punishable under the Second Schedule of the said Act; and possession of controlled drug with intent to traffic contrary to section 9(1) read with section 19(1) of the Misuse of Drugs MODA and punishable under section 7 (1) specified in the Second Schedule of the said Act.

[2]            The amount of the drugs cultivated in this case was four cannabis plants and the amount of cannabis found in the convict’s possession was 174.50 grams.

[3]            The statutory punishment for the said offences is for the first count a maximum of twenty years imprisonment and the second count a maximum of fifty years imprisonment. The recommended sentence for the offence as set out in count 2 for a quantity of cannabis of up to 250g is a sentence of imprisonment of up to one year and /or a fine or a suspended sentence.

[4]            I also have at this juncture drawn my attention to section 47 of MODA which provides in relevant part:

“(1) in sentencing a person convicted of an offence under part of this Act, whether upon a guilty plea or following trial, the Court shall have regard to

(a)  the objectives of the Act

(b)  the degree of control to which the relevant controlled drug is subject; and

(c)   the general objectives of transparency and proportionality in sentencing. 

(2) Where an aggravating or mitigating factor identified in section 48 or section 39 applies to the circumstances of an offence, the Court shall expressly identify that factor and give weight to it in considering the appropriate sentence…

[5]            I requested and was provided with a probation officer’s report for the convict. In this regard, I am informed that the convict is a first offender. He is fifty-six years old and lives with his partner with whom he has two children aged 5 years and 3 months. He also has four children from a previous relationship. He is a self-employed mason of over twenty years.

[6]            He claims he is a diabetic, has kidney stones and has prostate cancer. He has explained that since his diagnosis with prostate cancer in 2013 he saw a herbalist who advised him to take a concoction of cannabis leaves with the plant pisar lisyen. It is in this context that he started taking cannabis for its medicinal use at his home. He denied having the drugs for commercial purposes. He insists that the concoction has cured his prostate cancer.

[7]            I have considered all these matters and also the submissions made by learned Counsel concerning the mitigation of the sentence to be passed on the convict. The plank of these submissions are that, in addition to his medical ailments, the convict has pleaded guilty on the very first occasion and has not wasted the court’s time. He also has many dependents as detailed in the probation report and listed above. Counsel has therefore urged the court for leniency in respect of the sentence to be passed on the convict.

[8]            I have looked at the authority of R vs Pascal Robin Malvina, SC 231/2018, for sentence guidance with respect to the cultivation of cannabis. In that case, the convict pleaded guilty to cultivating 95 grams of cannabis and possessing 24 grams of cannabis herbal materials. He was sentenced to a fine SR5, 000 on both counts and a default sentence of two years if he failed to pay the fines within two weeks. The Court referred the convict to the Probation Division for him to engage in an appropriate community-based program.

[9]            In the present case, the amount of drugs is considerably more. I therefore sentence the convict on the first count of cultivation of four cannabis plants to a term of term of one-year imprisonment, which is suspended for two years. On the second count of possession of 174.50 grams of cannabis with intent to traffic, the convict is sentenced to a term of one-year imprisonment that is suspended for two years and to run concurrently with the first count. In respect of the second count, the convict is further sentenced to a fine of SR 10,000 payable by the end of April 2020, in default of which he shall serve six months imprisonment.

[10]          The convict has a right of appeal against the convictions and sentences in this case.

Signed, dated and delivered at Ile du Port on 7th February 2010.

 

 

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Twomey CJ