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Tuinakelo v State [2000] FJHC 163; Criminal Appeal 49 of 2000 (20 June 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 49 OF 2000
(Suva Mag. Ct. Cr. Case No. 2361/99)

Between:

JACK NEIL TUINAKELO
Appellant

And

STATE
Respondent

Appellant in Person
Ms A. Prasad for the State

JUDGMENT

On 24 March 2000 the appellant was on his own plea convicted of the offence of being found in possession of 0.4 grams of dangerous drugs namely Indian hemp contrary to section 8(b) of the Dangerous Drugs Act Cap.114 as amended by Dangerous Drugs Act Decree No. 4 of 1990 and Dangerous Drugs (Amendment) Decree No.1 of 1991 and sentenced to imprisonment for one and a half years.

The appeal is against severity of sentence.

The appellant says that the sentence is harsh and excessive. He submits that the learned Magistrate disregarded the proper sentencing guidelines in respect of the ‘quantity’ namely, 0.4 grams found in his possession. The appellant says that there is disparity in sentencing pointing out that there have been cases for which sentences of one month and 3 months imprisonment have been passed by the very same courts which sentenced him.

The appellant is a 22 year old married man with a 6 month old child. He is a F.I.T. student in graphic designs.

The learned Counsel for the State opposed the appeal and said that the 18 months’ sentence is well within the sentencing range. She said that the Magistrate took into account the mitigating factors before passing sentence. The appellant has 4 previous convictions with one for a similar offence in January 1996. Counsel said it was a proper exercise of discretion on the part of the Magistrate. She said that the appeal should be dismissed.

Upon a careful consideration of the appellant’s submissions and what the State Counsel had to say, I consider that for the very small quantity of drugs found on him the sentence is manifestly excessive.

I am of the view that it was not a proper exercise of discretion on the part of the learned Magistrate. In this regard one has to bear in mind that under s8(b) for being found in possession of Indian hemp the sentence prescribed is that for not exceeding 100 grams the sentence is ‘maximum of 24 months’ and the ‘minimum of 3 months’.

The 24 months would no doubt be for the worst type of offence involving a huge quantity of drugs and 3 months would be for the very minimum. Here only 0.4 grams was involved which is a very small quantity and does not merit a lengthy sentence of 1½ years which is very close to the extreme end of the maximum sentence. Even after taking into account the mitigating factor of guilty plea it would not warrant such a sentence despite the fact that he has a previous conviction for a similar offence. I think the learned Magistrate got carried away because the appellant was found with the drug in Court while appearing in another case and showed "disrespect to the Court". The appellant should be punished for what he is charged with and given an appropriate sentence.

In this case it is with respect that I find that the learned Magistrate has erred in not exercising his judicial discretion properly. It is not that I would have passed a different sentence, but it is a case of the sentence being manifestly excessive. Because he has a previous conviction for a similar offence a longer sentence would be justified.

For these reasons I find that the sentence is harsh and excessive and wrong in principle. I therefore set aside the sentence of 1½ years and substitute it with one of 9 months’ imprisonment.

The appeal is allowed.

D. Pathik
Judge

At Suva
20 June 2000