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Tunidau v The State [2003] FJHC 151; HAA0045J.2003S (24 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0045 OF 2003S

Between:

LEMEKI TUNIDAU
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. N. Lajendra for State

Hearing: 17th October 2003
Judgment: 24th October 2003

JUDGMENT

The Appellant pleaded guilty to the following offence in the Nausori Magistrates’ Court:

Statement of Offence

CULTIVATING INDIAN HEMP: Contrary to Section 8(a) of Dangerous Drugs Act Cap. 114 and Dangerous Drugs Act Amendment Decree No. 4 of 1990 and Dangerous Drugs Act Amendment Decree No. 1 of 1999.

Particulars of Offence

LEMEKI TUNIDAU on the 21st day of February 2003 at Nadave, Nausori in the Central Division grew 16 plants of dangerous drug, namely Indian Hemp.

He was sentenced to 12 months imprisonment. He now appeals against his sentence. His grounds of appeal are that the magistrate failed to give sufficient weight to the fact that he is a first offender, that he expressed remorse and that he was cultivating Indian Hemp to finance his studies. The State opposes the appeal saying that although there was no longer a minimum mandatory term of imprisonment for growing Indian hemp, a term of 12 months imprisonment was neither harsh nor wrong in principle.

The Appellant pleaded guilty on first call, on the 9th of July 2003. The facts were that the Appellant is a student at the Nadave Institute. On 21st February 2003, his friend, one Eseroma saw the Appellant watering a plant under his bed. He reported the matter to a teacher at the Institute, and the matter was reported to the police. The police found a small tin under the Appellant’s bed with 16 plants growing. The plants were taken to the Koronivia Research Station. They were identified as marijuana or Indian hemp. The total weight of the plants was 0.5 grams. The Appellant was charged.

These facts were admitted and the Appellant was convicted. He had no previous convictions. In mitigation the Appellant said that he was 21 years old and a student farmer at the Nadave Institute. He said he planted marijuana to finance his education.

The learned Magistrate said that the Appellant was growing marijuana as a means of livelihood when he was being taught to be a “good business man.” He considered the fact that the Appellant was a first offender and passed “a minimum sentence of 12 months imprisonment.”

The learned Magistrate erred in finding that the offence of Indian hemp carried a minimum mandatory term of 12 months imprisonment. The decision of Prakash J in Harris Ram Swaroop –v- The State HAA0014.2001L was that the minimum terms of imprisonment under the Dangerous Drugs Act Amendment Decree No. 4 of 1990 and No. 1 of 1999 were unconstitutional, and that the courts had a discretion to impose lesser or alternative punishments. The maximum terms under the Decree of 1990 for growing Indian hemp remain.

With the legislative minimum term removed, it must now be for the courts to establish suitable tariffs for drugs offences in Fiji. This is only possible if counsel are able to provide to the courts comparable sentences for similar offences abroad. This has not been possible in this case.

However, in England a sentence of 6 months imprisonment would be considered appropriate for the offence of growing a small amount of marijuana for the purpose of sale. The sentences prescribed for the importation, supply and possession of drugs, by the 1971 Misuse of Drugs Act (U.K.) vary widely. Section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 provides for the only minimum mandatory term of seven years imprisonment for a third offence of the trafficking of Class A drugs. However that section allows the court a discretion not to impose the minimum term where it would be unjust to do so.

Cannabis under the U.K. Act is a “Class B” drug, in respect of which the production and supply may lead to a maximum sentence of 6 months imprisonment (on summary conviction) or 14 years imprisonment and/or a fine (on trial by indictment).

The cultivation of 0.5 grams of cannabis in England would have led to a summary trial and therefore to a maximum sentence of 6 months imprisonment.

Guidelines on sentencing in drug-related offences were issued in R –v- Aramah 76 Cr. App. R. 190, and amended to reflect legislative change in penalties (in respect of Class A drugs) in R –v- Bilinski 9 Cr. App. R.(S) 360 and R –v- Satvir Singh 10 Cr. App. R. (S) 402. Guideline judgments from other jurisdictions need to be approached with caution insofar as they purport to set tariffs because the statutory maximum terms in those other countries may differ from Fiji’s legislative maximum terms. However, the general approach to sentencing can be useful. In particular the English Court of Appeal made the following observations in Aramah:

1. The importation of very small amounts of cannabis (or Indian hemp) for personal use can be dealt with as if it were simple possession.
   
2. Importation of up to 20 kilograms of Indian hemp will lead to sentences of between 18 months and three years imprisonment with the lower range of sentences reserved for pleas of guilty with no or little profit for the courier. Good character is of marginal relevance in this type of case.
   
3. Supply of cannabis (including cultivation) of massive amounts (for example on a farm) will lead to sentences of about 10 years imprisonment for those playing “more than a subordinate role”. For smaller scale supply the tariff should be between one to four years imprisonment. Even where there is no commercial motive, the offence may be serious enough to justify a custodial sentence.
   
4. For possession of small amounts of Indian hemp for personal use, non-custodial measures such as a fine are appropriate. However repeat offenders may expect a custodial sentence.
   

In Fiji, a suitable starting point for the growing of small amounts of marijuana is the former minimum term, in this case 12 months imprisonment. This is also consistent with the suggested tariff in Aramah.

In this case considerable credit should be given for the plea of guilty and other mitigation. I would reduce the sentence to 4 months imprisonment. An aggravating factor is that the Appellant was growing, not for his own use, but for others in order to make money. I arrive at a sentence of 6 months imprisonment.

Are there any other factors relevant to the case which might justify suspension? Although the Appellant’s studies have been cut short because he is serving a custodial sentence, he could potentially have introduced marijuana to others at the Institute and thus hindered their studies. Drugs offences have created a real problem for Fiji society, especially amongst the young, and I do not consider that a suspended sentence is a sentence which reflects the community’s concerns about the growing and selling of dangerous drugs. Nor is financial hardship a mitigating factor. Just as contract killing cannot be mitigated by financial need, so is the growing of marijuana unjustified by the financial hardship of the growers and traffickers.

In all the circumstances a sentence of 6 months imprisonment is appropriate for the Appellant who grew 0.5 grams of marijuana, who was a first offender and who pleaded guilty. I order that the sentence of 12 months imprisonment be quashed and substituted with a term of 6 months imprisonment.

Nazhat Shameem
JUDGE

At Suva
24th October 2003