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Taura v The State [2003] FJHC 86; HAA0103J.2002S (13 February 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0103 & 0104 OF 2002S

Between:

TUKAI TAURA
Appellant

And:

THE STATE
Respondent

Hearing: 7th February 2003
Judgment: 13th February 2003

Counsel: Appellant in Person
R. Singh for State

JUDGMENT

The Appellant appeals against his convictions and sentences imposed in two cases in respect of the following charges:

APPEAL NO: 103/2002

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to Secti`on 8(b) of the Dangerous Drugs Act 114 as amended by Decree Number 4 of 1990 and amendment Decree Number 1 of 1991.

Particulars of Offence

TUKAI TAURA, on the 28th day of September 2002, at Lami in the Central Division, was found in possession of 490.9 grams of Dangerous Drugs namely Indian Hemp.

APPEAL NO. 104/2002

FIRST COUNT

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code Act 17.

Particulars of Offence

TUKAI TAURA, on the 1st day of August 2002 at Lami in the Central Division, broke and entered into the dwelling house of MARGARET AMONAKI and stole therein one Nokia Mobile Phone valued $389.00, one Toaster valued $30.00, one Blender valued $60.00 and one Sandwichmaker valued $40.00 all to the total value of $519.00 the property of the said MARGARET AMONAKI.

ALTERNATIVE COUNT

Statement of Offence

RECEIVING STOLEN PROPERTY: Contrary to Section 313(1) of the Penal Code Act 17.

Particulars of Offence

TUKAI TAURA, on the 28th day of September 2002 at Lami in the Central Division, receives a Nokia Mobile Phone valued $389.00 knowing the same to have been stolen, the property of the said MARGARET AMONAKI.

Because the Appellant argued both appeals together, and because sentences were delivered on the same day, I have found it convenient to deal with both appeals together in one judgment.

The facts of the case on Case No. 103/2002 are that a police team searched the Appellant’s house at Wailekutu, and recovered a bag with dried leaves. The leaves were sent for analysis and they were confirmed to be Indian hemp. The Appellant admitted these facts and 8 previous convictions. The learned Magistrate said that the minimum sentence for being in possession of 490.9 grams of Indian hemp was 12 months imprisonment. He sentenced the Appellant to 3 years imprisonment.

The Appellant now appeals against this sentence. State counsel agrees that there is now no minimum mandatory sentence under the Dangerous Drugs Act, the minimum terms having been struck down by the High Court in Harris Ramswaroop –v- State HAA014/01L. However he submits that the Appellant deserved the 3 years imprisonment imposed because of the large quantity of drugs found and the lack of any mitigating circumstances. In particular he pointed to the Appellant’s two previous convictions for the same offence in 1996 (in respect of which he was discharged without conviction) and in 1997 (in respect of which he was given a 6 months term of imprisonment).

Although the learned Magistrate erred in finding that there was a minimum mandatory term imposed by the Dangerous Drugs Act, he did not err when he said that the maximum set by statute was 3 years imprisonment. Indeed, with his previous convictions for the same offence, which shows that the Appellant was found previously in possession of marijuana, and considering the large amount found on him, I do not consider that he erred. There are no mitigating circumstances, other than the guilty plea that was taken into account.

The sentence imposed was not therefore wrong in principle. Nor is it manifestly excessive.

In respect of Case No. 104/2002, the Appellant submits that his plea of guilty on the alternative count of receiving stolen property was equivocal, and that his sentence, in any event, is manifestly excessive.

The Appellant was brought to court on the 30th of September 2002. He was represented by the Legal Aid Commission. When the plea was taken the Appellant said “I understand the charge. I admit it. Accused admits it on his own free will.” After the facts were read (which the Appellant admitted) the matter was adjourned to another day to allow counsel to prepare for mitigation. On the 14th of October (more than 2 weeks later), the appellant made no attempt to change his plea. Mitigation was heard and he was sentenced. The facts were that a search was conducted by the police at the Appellant’s house on 28th September 2002 when a Nokia mobile phone was found. It was valued at $389 and had been stolen from the complainant’s house on 1st August 2002. The Appellant was asked about the phone and he admitted buying it for $10.00.

I find nothing on the record to show that the Appellant’s plea was not unequivocal. Further, the learned Magistrate’s sentence reflected the plea of guilty and started at 3 years imprisonment. After discount for the plea, the Appellant was sentenced to 12 months imprisonment.

Given the seriousness of the offence of receiving stolen property, I consider that this sentence was not harsh or excessive.

However, the learned Magistrate ordered the two sentences to be served consecutively. The total term of five years imprisonment appears excessive in total and does not reflect the nature of the offending.

Although the two offences are separate and are not factually linked, I consider that the total term must reflect the totality of the offending.

For this reason, I consider that the terms of imprisonment ought to be served concurrently.

This appeal is allowed to that extent. The Appellant will serve a total of 3 years imprisonment.

Nazhat Shameem
JUDGE

At Suva
13th February 2003