IN THE HIGH COURT OF FIJI
(At Suva)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.103 OF 1997

BETWEEN:

SEVULONI INIAKOMAI
RESPONDENT

-and-

THE STATE
APPELLANT

Respondent - In Person
DPP - For the State

JUDGMENT

Re: MR. SEVULONI INIAKOMAI

BACKGROUND:

1. This matter concerns an Appeal by the State against the Acquittal and Order made by the Magistrate sitting at Suva on 27 August 1997.

On that day the Respondent Defendant had pleaded guilty to one charge of Possession of Dangerous Drugs: namely 10.4 grammes of Indian Hemp.

The Magistrate discharged the Respondent (presumably under Section 44 of the Penal Code) without a conviction being recorded, and ordered him to pay $40 costs.

GROUND OF APPEAL

2.	The State’s sole Ground of Appeal is that the Magistrate had erred in law and that the Sentence was too lenient. They might well have mentioned that the Orders were in fact in excess of the Magistrate’s jurisdiction.

THE CASE CIRCUMSTANCES

3.	The Circumstances are straight forward.

On 24 July 1997 the Respondent was seen by Police acting suspiciously near to the Metropole Hotel. He was searched and 18 rolls of cigarettes were seized. The contents were analysed and found to contain 10.4 grammes of Indian Hemp.

THE MAGISTRATE’S FINDINGS AND JUDGMENT:

4.	The Mitigation rendered to the Magistrate was that the Respondent served in the Army and was about to depart for Lebanon on peace keeping duties. The Magistrate apparently accepted these as peculiar circumstances (although they related to the Offender rather than the Offence).

The Magistrate then went on to discharge the Respondent with costs.

THE RESPONDENT DEFENDANT’S REPLY:

5.	As the Respondent was unrepresented today, the purpose details of the Appeal was carefully explained to him.

The contents of the Dangerous Drugs (Cap 114) together with the Drug Amendment Decrees (4/90 & 1/91) were also explained. The Respondent made no reply.

APPEAL JUDGMENT:

6.	Unfortunately this is yet another instance of the Magistrate failing to read ‘Statement of Offence’ on the Charge Sheet properly. I would urge Magistrates to always read the contents of the Section(s) under which Charge(s) are brought together with any ancillary legislation. As in earlier similar cases this Appeal would have been avoided if attention had been given to this simple procedure.

The two Decrees mentioned in the Charge Sheet spell out the mandatory. Penalties for breaches of Section 8 of the Drugs Act (Possession of Dangerous Drugs). As a consequence of the Decrees the Magistrate has no jurisdiction to deviate from the penalties prescribed there. Discharges under Section 44 of the Penal Code are not available or applicable where Mandatory Penalties have been prescribed. 

The Magistrate was wrong not to apply the mandatory penalties.

The Mandatory Penalty following conviction for the possession of the amount of Indian Hemp found on the Respondent is an immediate prison sentence of between 3 months and a maximum of 24 months. The only discretion is in the length of sentence between those minimum and maximum levels.

Under the provisions of Section 319 of the Criminal Procedure Code I formally record a Conviction for the offence of Possession of Dangerous Drugs in respect of this Respondent. The Sentence will be 3 months imprisonment. The Order for Costs will be quashed.

SUMMARY

8.	(1) conviction recorded for the Offence charged.
(2) 3 months imprisonment imposed;
(3) the Order for Costs (made on 27 August 1997) by the Magistrate quashed.

[Peter Surman]
Judge
At Suva
9 September, 1998