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State v Niumatasere [2004] FJHC 95; HAA0007J.2004S (29 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0007 OF 2004S

Between:

THE STATE
Appellant

And:

TOMASI RAWLANDS NIUMATASERE
Respondent

Hearing: 19th April 2004
Judgment: 29th April 2004

Counsel: Mr. B. Solanki for State

The Respondent was charged with and convicted of the following offence:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to sections 8(b) and 41(2) of the Dangerous Drugs Act 114.

Particulars of Offence

TOMASI RAWLANDS NIUMATASERE, on the 7th day of April 2003, at Namara Village, Sanima, Kadavu in the Southern Division, was found in possession of Dangerous Drugs namely 37.6grms of Indian Hemp.

He was sentenced to six months imprisonment suspended for twelve months. The Director of Public Prosecutions appeals against that sentence on the following grounds:

“(a) that the learned Magistrate erred in law and in fact when he imposed a non-custodial sentence and not a custodial sentence;

(b) that aforesaid sentence was wrong in principle and manifestly lenient having regard to all the circumstances of the case.”

The facts of the case were that the police received information that the Respondent was in possession of drugs. A search was conducted in his house on the 7th of April 2003 and some dried leaves were found in his bedroom. The Respondent told the police that “it was marijuana leaves that he smokes to find relief and not to harm anyone.” Upon further search they found a parcel of dried leaves under his mattress. On analysis, it was confirmed that the Respondent had been in possession of 57.6 grams of cannabis sativa or Indian Hemp. Under caution, the Respondent agreed that he had been in possession of the marijuana and that he kept it for his own use.

The Respondent agreed to these facts and was convicted. In mitigation he said that he regretted his actions, had started a family, was a member of the Methodist Church and was married with one son. The learned Magistrate then said: “Sentenced to 6 months imprisonment. As a second offence to be suspended for 12 months.”

The Respondent had one previous conviction of drunk and disorderly in 1989, and one previous conviction of being in possession of dangerous drugs, on 13th October 2000. For the latter conviction, he was ordered to serve a term of 3 months imprisonment.

For the hearing of this appeal, he made written submissions attaching letters written by the head teacher of his children’s school, and the head of his Yavusa, Sivorosi Cawanika. The latter, in a letter addressed to the court, said that the Respondent had changed since he was convicted of the offence, that he took care of his children and was a devoted Catholic. The Respondent himself said that he was a single parent because his wife had left him and the children. He said he started to take marijuana to “drown his misery” but that he no longer took drugs. He asks for a non-custodial sentence for the sake of his children.

State counsel submits that a suspended sentence for a second offence under section 8(b) of the Dangerous Drugs Act is wrong in principle and is manifestly lenient.

In Meli Bavesi v. State Crim. App. HAA0027 of 2004, Winter J considered an appeal against a 2 year term of imprisonment imposed on an appellant found in possession of less than 500 grams of marijuana. The maximum term under the Dangerous Drugs Act is 3 years imprisonment. His Lordship reviewed New Zealand authorities on drug sentences and considered that “the proper focus is the degree of involvement the offender might have in any commercial aspect of his drug possession.” He adopted the guidelines of the English Court of Appeal in R v. Aramah 76 Cr. App. R. 190. In that case the Court said that for possession of small amounts of Indian hemp for personal use, non-custodial measures such as a fine may be appropriate. However repeat offenders should expect a custodial sentence.

In Lemeki Tunidau v. The State Crim. App. HAA0045 of 2003, I suggested that an appropriate starting point would be the former minimum term. In Meli Bavesi v. State (supra) Winter J reviewed a number of drug cases in New Zealand and found that in cases of possession with evidence of sale or supply, sentences ranged from 6 months to 4 years imprisonment. The longer sentences were imposed on offenders who were closely connected with the trade for commercial gain.

In R v. Terewi [1999] NZCA 92; (1999) 3 NZLR 62, the New Zealand Court of Appeal said that a short prison term should be imposed where the offender grew a small number of plants for personal use or non-commercial supply.

There is no evidence to indicate that the Respondent was supplying the drug to anyone. The amount he possessed could quite feasibly be for his own use. He admitted personal use and has one previous conviction for being in possession of marijuana.

In the circumstances, a prison sentence would appear to be inevitable. However, I accept the representations made to me by the pastor of the Methodist Church, and by the head of his Yavusa. In particular I accept that he has made earnest attempts to rehabilitate himself since April of 2003 in order to be a responsible father to his four small children. I also accept that the Respondent is the only care-giver for those children. In the circumstances of this case, I therefore consider that justice is best served by a non-custodial sentence. However I do not consider that a suspended sentence provides sufficient accountability for this offender. I am of the view that a community work order, served under the supervision of the probation officer for Kadavu, would better serve the interests of the community and of this Respondent.

Section 3 of the Community Act provides that where an offence is punishable by a term of imprisonment not exceeding 2 years imprisonment, a court can order between 20 hours and 200 hours community service in lieu of imprisonment. The Respondent consents to such an order and I consider that the hospital, police station and churches on Kadavu can adequately provide suitable work for a community work order.

I therefore sentence the Respondent to a total of 100 hours community work, to be supervised by the probation officer responsible for Kadavu. Within 72 hours of this judgment, the Respondent must report to the Probation Officer so that he or she can arrange for his community work. The Probation Officer must provide a report to the Chief Registrar of the High Court within 14 days of the completion of sentence. The 100 hours must be served within 6 months of the date of this judgment. Any breach of the order is a criminal offence and renders the Respondent liable to prosecution under section 14 of the Act.

Result:

The State’s appeal succeeds. The suspended sentence is set aside and substituted with a sentence of community work for 100 hours in Kadavu under the supervision of the Probation Officer (Kadavu).

Nazhat Shameem
JUDGE

At Suva
29th April 2004