Banidawa v The State [1998] FJHC 149; Haa0042d.98b (5 November 1998)

Fiji Islands - Banidawa v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0042 OF 1998

BETWEEN:

MARIO BANIDAWA
Appellant

AND:

THE STATE
Respon/p>

Appellant in perso Mbr> Ms. A. Driu for the respondent

REASONS FOR DECISION

On the 26th October 1998 I allowed the appellant's appeal against a sentence of 9 months imprisonment imposed on him by the Taveuni Magistrate Court after he was convicted for an offence of Being in Possession of Dangerous Drugs namely '5.8 grams of Indian Hemp botanically known as CANNABIS SATIVA'.

For such an offence, i.e. for being in possession of up to 100 grams of Indian Hemp, the law provides a mandatory sentence of between 3 to 24 months imprisonment and, although the appellant's sentence is nowhere near the maximum sentence provided for, nevertheless, it is slightly more than a third.

State Counsel at the hearing of the appeal very properly conceded that the appellant's sentence was harsh considering the quantity of drug involved, i.e. 5.8 grams which is barely one twentieth of the maximum quantity of drugs, to which the above-mentioned penalty applies.

I also note that the trial magistrate nowhere acknowledges the appellant's guilty plea in his sentencing remarks nor, indeed, has he made any observations as to the quantity of the prohibited drug involved, a factor which the legislature clearly considers a distinguishing feature in sentencing for drug offences.

In his undue concern for deterrence the trial magistrate also failed to recognize that for the past seven (7) years since his last conviction the appellant has, in his own words, '...been trying my best not to re-offend but wasn't too careful...' The appellant should be supported in his efforts not condemned.

The appellant is 38 years of age, married with 6 children and cannot be considered a young person. Indeed this is a case of a mature offender with clear family responsibilities being sent to prison for the first time for an offence which the appellant describes as doing 'a favour to a friend' as a courier.

Having heard the appeal I was satisfied that having served 4 months imprisonment the appellant has learnt a salutary lesson and now genuinely regrets his foolishness and the consequent suffering he has caused to his innocent family.

For the foregoing reasons the appeal was allowed and the sentence was reduced to allow for the appellant's immediate release.

D.V. FATIAKI
JUDGE

At Suva,
5th November, 1998.

HAA0042D.98B