Carter v The State [1990] FJHC 59; HAM0015d.1990s (26 July 1990)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

MISCELLANEOUS CASE NO. 15 OF 1990

Between:

ANDREW IAN CARTER
Applicant

v.

THE STATE
Respondent

Mr. M. Raza for the Applicant
Mr. R. Perera for the State

RULING

This is an application for bail pending appeal. The applicant an Australian visitor to this country was tried and convicted in the Suva Magistrate's Court for an offence of FOUND IN POSSESSION OF DANGEROUS DRUG: Contrary to Section 8(b) and 41(2) of the Dangerous Drugs Act Cap 114 as amended by Section 3 of Decree No. 4 of 1990.

Upon his conviction the applicant was sentenced to 3 months imprisonment. He has served only 2 days of that sentence and it is to his counsel's credit that this application has been made so quickly.

In urging the application learned counsel for the applicant made reference to the various grounds in the Petition of Appeal against conviction and sentence and stressed in particular the likelihood of the appellant serving a substantial portion of the sentence before the hearing of the appeal.

Learned Counsel for the State strenuously opposes the application on the ground that "no exceptional circumstances" are raised in the application. As for the delay in hearing the appeal counsel argues that the preparation of the record and the hearing of the appeal could be expedited.

In considering this application I have taken the liberty of perusing the original handwritten record of the Magistrate Court which extends to approximately 32 closely-written pages including a judgment of some 27 pages.

Needless to say some delay is inevitable in the typing-up of any record of proceedings and in the present circumstances such delay can only be considered as "prospective" rather than exceptional. On that ground this application cannot succeed.

As for the question of sentence State Counsel argues that the force and effect of Decree No. 4 of 1990 is that custodial sentences in drug offences are now mandatory. Certainly the learned trial magistrate was of that view when he sentenced the applicant.

This is the first occasion to my knowledge when the question of sentences under the above-mentioned Decree has come before the Court for its consideration. In the circumstances and "without prejudice" to the ultimate decision of the court on the matter, I propose to grant this application.

The applicant is granted bail on the following conditions:-

(1) In his own recognizance in the sum of $500 with one surety in like amount;

(2) that he surrender his passport to the Court;

(3) that he report daily to the Central Police Station between the hours of 9 a.m. and 10 a.m.; and

(4) that he furnish a fixed residential address where notices may be served on him.

In addition it is ordered that the preparation of the Magistrate's Court record of proceedings be expedited and a certified copy be supplied to the High Court within 2 weeks of the date hereof.

(D.V. Fatiaki)
JUDGE

At Suva,
26th July, 1990.

HAM0015D.90S