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Baravi v The State [2005] FJHC 344; HAA0144.2005L (12 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0144 OF 2005L

DAIANA BARAVI

v.

THE STATE

Appellant in Person
Mr. K. Tunidau for the State

Date of Hearing: 12 October 2005
Date of Judgment: 12 October 2005

JUDGMENT ON APPEAL

The appellant was convicted by the Learned Magistrate at Sigatoka on the 27^th June 2005 and sentenced to 6 years imprisonment with respect to the following offence:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8 (b) of the Dangerous Drugs Act 114 and section 33 of the Dangerous Drugs Act as amended by Decree Number 4 of the Fiji Republic Gazette Number 10 of 1990 and section 2 of the Dangerous Drugs Act (Amendment) Number 1 Decree 1991.

Particulars of Offence

DAIANA BARAVI on the 10^th day of May 2005 at Vatumali, Navosa in the Western Division was found in possession of 2.4 kilograms of Indian Hemp.

The facts as acknowledged by the appellant and as found by the Magistrate are that on the 10^th May 2005 at 12 noon at Keiyasi, Sigatoka, police officers from Keiyasi Police Station had a roadblock operation when the appellant as a passenger in the valley bus was found a cassava bag at the time and found 2.4 kilograms of dried leaves which was subsequent confirmed by the Government Analyst as cannabis sativa

The appellant admitted the offence and entered a plea of guilty at the first opportunity.

The quantity of drugs involved is indeed very high, 2.4 kilograms is a significant amount. State Counsel puts to the Court that a trend has developed in the Sigatoka valley of using the women as males to transport drugs in the valley to points of sale. This trend has developed as a result of previous police efforts, which have resulted in the men being arrested. It is only police vigilance that has brought about this further attempt to mitigate the drug trade in this country.

It is quite despicable that husbands and partners use their wives and partners to be carriers of drugs and to subject their womenfolk, the mothers of their children, to be arrested and upon arrest being incarcerated for an extensive period of time.

The appellant put before the Learned Magistrate and of course before this Court that she is the mother of 3 children. They are all young and in the care of an aunt and their father. She has no faith in his ability to care. The youngest child is merely 3 years old and for a mother to be taken from the children at such an age is indeed tragic for the children.

The Parliament has however expressed the communities concern by setting maximum penalties for offence of this type of 20 years imprisonment and it is quite inappropriate for this Court or any other Court to ignore the legislation which as I have said is effectively a reflection of the communities attitude.

The Learned Magistrate in his sentencing comments indicates and relied upon Meli Bavesi v The State – Cr. App. No. HAA0027 of 2004 where Mr. Justice Winter had considered a large number of authorities with respect to appropriate sentences for drug offences and concluded that for the most serious cases of offending involving large commercial growing of possession or large amounts of drugs where it is intended for sale, an appropriate starting point would be 5 to 6 years.

The Learned Magistrate used a starting point of 6 years to which he added a term for aggravation and made a reduction for the plea of guilty, the hardship and the other mitigating factors.

Whilst I am of the opinion the penalty the appellant has received will indeed pose hardship on her family and on her, I reiterate that the hands of the Court are tied.

The term of imprisonment of 6 years as imposed by the Learned Magistrate cannot in the circumstances be considered to be wrong in principle or manifestly excessive and accordingly, the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
12 October 2005