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Drava v The State [2003] FJHC 83; HAA0095J.2002S (31 January 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0095 OF 2002S

Between:

TOMASI DRAVA
Appellant

And:

THE STATE
Respondent

Hearing: 24th January 2003
Judgment: 31st January 2003

Counsel: Appellant in Person
Mr. D.G. Toganivalu for State

JUDGMENT

The Appellant was convicted of the following offence in the Nausori Magistrate’s Court.

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8(b) and 41(2) of the Dangerous Drugs Act, Cap. 114 as amended by Dangerous Drugs Act (Amendment) Decree number 4 of 1990 and Dangerous Drugs Act (Amendment) Decree number 1 of 1991.

Particulars of Offence

TOMASI DRAVA, on the 11th day of September, 2002 at Navava, Waibalavu, Naitasiri in the Central Division, was found in possession of Dangerous Drug namely 205.3 grams of Indian Hemp.

He pleaded guilty on 12th September 2002. He waived his right to counsel. The facts read out by the prosecution were that the police on 10th September 2002 received information that the Appellant was planting marijuana and also had possession of the drug. A raid was carried out the same day and the police found a parcel of dried leaves under his bed and 3 plants outside his house. The plants and leaves were taken away for analysis and the Government Analyst found that the items contained 205.3 grams of Indian Hemp. The Appellant was interviewed under caution and he admitted the offence.

These facts were admitted by the Appellant. He also agreed that he had 9 previous convictions, which include one offence of act with intent to cause grievous harm and seven offences of throwing object. His last offences are dated February 1992.

In mitigation, the Appellant said that he was 30 years old, was married with a child, and that he was a farmer. He said his father was also in prison (for a similar offence) and that he had assisted the police in their investigation. He expressed remorse.

In sentencing him the learned Magistrate said that there was a minimum mandatory sentence of 12 months imprisonment, imposed by the Dangerous Drug Act (Amendment) Decree No. 4 of 1990 and the Dangerous Drug Act (Amendment) Decree No. 1 of 1991. He said that marijuana had an adverse effect on Fijian youths, many of whom were at St. Giles Hospital. He sentenced the Appellant to 18 months imprisonment.

The Appellant appeals against conviction and sentence on the following grounds:

“(a) The items seized were not in my possession when it was seized as stipulated in the penal code under the section for the alleged offence;

(b) I wasn’t issued with a copy of a search warrant as I the owner of the dwelling house lost a search list after the search;

(c) I wasn’t given a chance to seek Legal Aid or a lawyer whilst investigated;

(d) I wasn’t issued with any analysis report of the confirmation of the substance;

(e) I wasn’t legally arrested by the Officer (police) arresting me.”

Of course, under section 309 of the Criminal Procedure Code, no appeal against conviction may be allowed where an accused person pleaded guilty in the lower court. The only exceptions to this rule are where the plea is equivocal, or where the facts do not disclose the offence, or where the offence itself is not known in law.

The Appellant’s case does not fall into any of these exceptions. In particular, he clearly waived his right to counsel, and clearly and unequivocally pleaded guilty to the charge. I turn therefore to sentence.

It is quite correct that the Decrees of 1990 and 1991, purported to provide for minimum mandatory terms of imprisonment for offences of possession of Indian hemp under section 8(b) of the Dangerous Drugs Act as amended by decree. However, all minimum mandatory terms exist subject to the Constitutional freedom from “disproportionately severe” sentences (section 25). In State –v- Audie Pickering (Misc. Action HAM0007 of 2001S) I found that mandatory minimum sentences need not be automatically unconstitutional, but they had to be subjected to the test of disproportionality under section 25 of the Constitution. The test, in cases of sentences imposed by decree, is particularly vigorous, because decrees are not legislative acts expressing democratic will. Their legislative purpose is therefore difficult to ascertain. In the recent case of Harris Ram Swaroop –v- The State HAA0014.2001L Prakash J considered the third schedule to the Dangerous Drugs Act (Amendment) Decree 1990, which lists quantities of drugs found with corresponding penalties on conviction. In respect of quantities less than 500 grams but more than 100 grams, the Decree lists a maximum penalty of 3 years imprisonment and a minimum of 12 months. He found that the minimum terms imposed were potentially disproportionate to the offending, in breach of the doctrine of the separation of powers, and (in principle) in breach of the principle of the independence of the judiciary. At page 23 of his judgment his Lordship said:

“In considering the Constitution and especially the Bill of Rights provisions it is clear that the provisions of the Dangerous Drugs Act (Amendment) Decrees contravene certain provisions of the Constitution. In particular, the mandatory sentencing provisions breach the separation of powers doctrine, contained in section 117(1) of the Constitution, and the independence of the judiciary vis-à-vis the legislative and executive branches as per section 118 of the Constitution. The setting of pre-determined mandatory sentences further breach the right to a fair trial before a court of law and the right to equality before the law (section 38(1).)”

And at page 24:

“Under section 41 the High Court is required to provide redress if any provisions of the Constitution are contravened. The Court therefore rules that in relation to the Dangerous Drugs Act (Amendment) Decrees No. 4 of 1990 and No. 1 of 1991 as they pertain to the “Third Schedule”, offences relating to the possession of Indian Hemp, the minimum penalties are unconstitutional and invalid. The maximum penalties specified remain.”

It appears that the learned Magistrate was not aware of this decision of the High Court when he sentenced the Appellant. Certainly the penalty for the offence no longer has a minimum mandatory term. The maximum term is 3 years imprisonment.

What is the appropriate sentence? Clearly the Appellant was a habitual user. He admitted being a grower although there is no evidence that he was growing for sale. Nevertheless as D.A. Thomas says in his “Principles of Sentencing” (at p.183): “For the purpose of assessing culpability, offenders are divided into categories according to whether they are users or suppliers, and according to the nature of the substance involved.” The Appellant is not a young offender. Nor is he a first offender. The amount of drugs found on him was substantial and there is evidence of habitual use. Although Indian hemp may not be considered as harmful as drugs such as cocaine or heroin, the learned Magistrate referred to the increased use of the drugs with its psychological consequences in the Vunidawa area. As the sitting Magistrate in the area, he is clearly in the best position to know of prevalence of the offence, and detrimental effects in the Fijian community in Naitasiri.

In the circumstances I consider the 18 month term to be an appropriate term for the Appellant. It reflects community concern, the circumstances of the offending and the individual characteristics of the offender. The sentence is not manifestly excessive and would have been the appropriate sentence even if the learned Magistrate had been aware that there was no minimum mandatory term.

This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
31st January 2003