Deo v The State [1989] FJHC 14; Haa0032j.1988s (8 December 1989)

IN THE HIGH COURT OF FIJI
AT SUVA
Appellate Jurisdiction

CRIMINAL APPEAL NO. 32 OF 1988

Between:

SACHIN DEO
s/o Ist Deo
Appellant

and

THE STATE
Respondent

Mr. S. Singh for the Appellant
Mr. B.I. Singh for the Respondent

JUDGMENT

The appellant was convicted after trial in the Suva Magistrate Court of the following offence:

Statement of Offence

Found in Possession of Dangerous Drugs: Contrary to Section 8(b) and 41(2) of the Dangerous Drugs Act Cap. 114.

Particulars of Offence

Stanley Senibulu, Sachin Deo s/o Ist Deo and 2 others on the 20th day of January, 1988 at Suva in the Central Division were found in possession of 0.01 grams of Dangerous Drugs namely Indian Hemp.

Upon his conviction on the 26th of May 1988 the appellant was sentenced to 9 months imprisonment.

A week or so later on the 3rd of June, 1988 the appellant was granted bail pending appeal. He has therefore already spent some 8 days in prison.

The appellant's original petition of appeal was against both conviction and sentence however his counsel was permitted at the hearing of the appeal, to withdraw the appeal against conviction which is hereby formally dismissed. The only matter that remains for the court's consideration is the appeal against sentence on the ground that it "...... is harsh and excessive".

In arguing the appeal learned counsel stressed two matters, namely, the quantity of the drug involved and the disparity of the appellant's sentence and that of his co-accused who had earlier pleaded guilty.

In this latter regard the court record discloses that the co-accused was sentenced to 6 months imprisonment suspended for 12 months and placed on probation for 18th months. The record also reveals that the co-accused was previously convicted in August 1987 for a similar offence for which he was imprisoned for 4 days.

The appellant on the other hand is a young first offender 20 years of age who was living with his parents at the time this offence was committed and although the appellant pleaded not guilty to the offence and was convicted after a trial, nevertheless, learned counsel for the State concedes, very properly in my view, that there is some disparity in the sentences.

State counsel also accepts that the quantity of the drug involved might be considered minute but adds: "it's the quality that counts".

Whilst I accept that that may be strictly correct nevertheless Lord Scarman in the House of Lords in Regina v. Boyesen (1982) 75 Cr. App. R. 51 in upholding a conviction for possession of 5 milligrams of cannabis resin said at p.57:

"The question is not usability but possession. Quantity is, however, of importance in two respects when one has to determine whether or not an accused person has a controlled drug in his possession. First, is the quantity sufficient to enable a court to find as a matter of fact that it amounts to something? If it is visible, tangible, and measurable, it is certainly something. The question is one of fact for the commonsense of the tribunal. Secondly, quantity may be relevant to the issue of knowledge..... If the quantity in custody or control is minute, the question arises -was it so minute that it cannot be proved that the accused knew he had it? If knowledge cannot be proved, possession would not be established." (my underlining)

On the other hand there is the earlier decision of the NZ Court of Appeal in Police v. Emirali [1976] 2 NZLR 476 where the quantities of cannabis involved were 1.7 milligrams and 6 milligrams. In dismissing the Crown's appeal against acquittal the Court and affirmed the `usability test' and observed at p.480:

"It is important that the courts should give every proper support to those who have the responsibility of controlling the serious problem of drug abuse, but when one attempts to understand the ambit of s 6 of the Narcotics Act it is necessary to keep in mind that the real purpose of the statute is not to proscribe the existence of narcotics as an end in itself. Instead it is to prevent their illicit use. That general purpose indicates the sort of test that can and should be applied in such a case as this,......... Of course, a decision as to the utility of a given sample of a narcotic substance will depend not merely upon its size or whether it is capable or incapable of measurement by weight but also upon the nature of the narcotic itself, and the condition in which the sample is found. In addition, it may be relevant to consider whether the sample might reasonably be used in the circumstances of the case to supplement a similar sample or samples in order to give efficacy to the whole." (my underlining)

I am satisfied that on both scores the evidence in this case properly supported the appellant's conviction.

As to sentence however, learned State counsel concedes there is some disparity. Additionally this court has already observed that the co-accused had a previous conviction for an identical offence for which he had received a short prison sentence, yet with that background the co-accused was not given an immediate custodial sentence but had extended to him (albeit by a different magistrate) a sentence not carrying the same risks of stigma or of psychological effects as that which the appellant received.

Whilst this court accepts that a guilty plea should normally tell in favour of an accused by a reduction in the length of the sentence imposed it should not be such as to alter the very type or nature of the sentence imposed and give rise to so pronounced an inequality as occurred in this case.

It might be that the learned trial magistrate who dealt with the appellant was unaware of the earlier sentence passed upon the co-accused but whatever the reason or reasons this disparity cannot be allowed to continue.

Accordingly the appellant's appeal against sentence succeeds, the sentence is set aside and in lieu thereof I impose a sentence of 6 months imprisonment suspended for a period of 2 years with effect from the 26th of May 1988.

The appellant is accordingly warned that the period of suspension will expire in May 1990 and that if he should re-offend between now and then and be convicted of an offence punishable with imprisonment then he may be required in addition to any punishment he may receive for that other offence, to serve this 6 months imposed upon him by this court in respect of this offence.

(D.V. Fatiaki)
JUDGE

Suva,
8th December, 1989.

HAA0032J.88S