State v Nakautoga [1998] FJHC 174; Haa0130.97 (26 February 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA 130 OF 1997

THE STATE
Appellant

v

ALIFERETI NAKAUTOGA
Respondent

Counsel: Mr P Petaia for Appellant
Respondent in Person

Hearing: 25th February 1998
Decision: 26th February 1998

ORAL RESERVED DECISION OF PAIN J.

This is an appeal by the State against a sentence imposed on the Respondent in the Magistrates Court.

On 11^th January 1996, the Police found a small quantity of plant material in the pocket of a jacket being worn by the Respondent. However, it was not until the 12^th of September 1996 that a charge was laid against him in the Magistrates Court for the offence of being in possession of 0.4 grams of Indian Hemp contrary to section 8(b) of the Dangerous Act (as amended). On 14^th November 1996, the Respondent pleaded not guilty to the charge. Subsequently, the accused failed to appear and a bench warrant was issued. He finally appeared on the 18^th of July 1997 and remanded in custody. On the 1^st of August 1997 he pleaded guilty to the charge. After hearing the facts and mitigation the learned Magistrate discharged the Respondent without conviction pursuant to Section 44 of the Penal Code on condition that he did not re-offend within one year and paid $30 court costs.

The appellant appeals this sentence on the sole ground that, "the learned Magistrate erred in law by discharging the Respondent when the said offence warrants a mandatory custodial sentence."

Determination of this appeal requires a consideration of the provisions of Section 44 of the Penal Code and Section 8 of the Dangerous Drugs Act in relation to this particular charge of being found in possession of Indian Hemp.

As originally enacted, Section 8 of the Dangerous Drugs Act provided that every person found in possession of Indian Hemp was guilty of an offence. Such person was then liable upon conviction to the general penalty contained in Section 41(2) of the Act namely a fine not exceeding $2000 or imprisonment for a term not exceeding 8 years.

Section 3 of the Dangerous Drug Act (Amendment) Decree 1990 repealed Section 8 of the Act and substituted a new Section 8. This provided that every person found in possession of Indian Hemp was "guilty of an offence and upon conviction shall be sentenced to imprisonment in accordance with the Third Schedule of this Act". Section 5 of the Decree added a Third Schedule to the Act stipulating a minimum and maximum term for various offences under the Act. For the offence of possession of Indian Hemp not exceeding 100 grams in weight, the prescribed minimum is 3 months and the maximum is 24 months.

Section 8 was further amended by Section 2 of the Dangerous Drug Act (Amendment) (No. 1) Decree 1991. The clear purpose of this amendment was to clarify that the sentence of imprisonment to be imposed under Section 8 could not be suspended in accordance with the provisions of Section 29 of the Penal Code.

So far as it relates to the present offence Section 8 now provides:

"Every person......found in possession of [Indian Hemp].......shall be guilty of an offence and upon conviction shall be sentenced to immediate imprisonment in accordance with the Third Schedule of this Act -

Provided that the provisions of Section 29 of the Penal Code and any other law shall not apply to any sentence to be imposed under this Act."

In my view, the clear intention of Section 8 (as substituted and amended by Decree) has been to provide for a mandatory immediate prison sentence as the penalty for the offence of Possession of Indian Hemp (and the other offences specified in the Section), the term of such sentence to be within the minimum and maximum range stated in the Third Schedule. The issue is whether this intention has been achieved by the wording of the Decree.

The Section contains a clear mandatory direction that a person committing the offence shall be sentenced to immediate imprisonment upon conviction. The word "conviction" has been considered in many cases in many jurisdictions. In England, the leading authority is S v Recorder of Manchester & Ors [1971] A.C. 481 H.L. In Fiji it has been considered by the Court of Appeal in Siru Luluakalo v R. 8 F.L.R. 12, David Kio v R 13 F.L.R. 21 and Babu Ram v R. (Criminal Appeal No. 36 of 1974) and by the High Court in Waqavesi Bogitini v R 29 Fiji Law Report 134 and Epeli Delai v The State (Criminal Appeal No. 22 of 1995). A relevant New Zealand authority is R v McLeod (1988) 2 N.Z.L.R.65. It is clear from these cases that the word "conviction" can have one of two meanings. That is either the finding of guilt or acceptance of a plea of guilty or the final judicial determination of the case. In S v Recorder of Manchester (supra) Lord Upjohn explained the distinction (at page 506) as:

"The primary meaning of the word "conviction" denotes the judicial determination of the case; it is a judgment which involves two matters, a finding of guilt or the acceptance of a plea of guilty followed by sentence....

But the word "conviction" is used also in a secondary sense, that is, to express a verdict of guilty or acceptance of a plea of guilty before the adjudication which is only completed by sentence."

In my view the word "conviction" in Section 8 of the Dangerous Drugs Act (as amended) could only mean the finding of guilt or acceptance of a plea of guilty. It could not refer to the final judicial determination of the case because the section makes specific provision for sentence after this conviction. Therefore, if at the end of a defended hearing, the court finds the charge proved or (subject to any question of equivocality) the accused pleads guilty to the charge, that constitutes a conviction. In terms of Section 8 the imposition of a sentence of immediate imprisonment for a term specified in the Third Schedule is then mandatory. The Court has no discretion as to sentence apart from fixing the term of imprisonment within the minimum and maximum prescribed.

In my view Section 44 of the Penal Code cannot be invoked and a defendant cannot be discharged without conviction for the following reasons:

1. Section 206 (2) of the Criminal Procedure Code provides that when an accused person admits the truth of the charge, the court shall convict him and pass sentence "unless there shall appear to it sufficient cause to the contrary". In the present case, there was no sufficient cause to the contrary. The provisions of Section 8 of the Dangerous Drugs Act provide an exclusive and mandatory sentence for the offences specified in the section. An immediate prison sentence must be imposed upon offenders pleading guilty or found guilty after trial.

2. In terms of the express provisions of Section 44, the power to discharge is only exercisable by a court "by or before which a person is found guilty of an offence not being an offence for which a fixed sentence is prescribed by law." For the reasons I have already given, an offence under Section 8 of the Dangerous Drugs Act (as amended) is an offence for which a fixed sentence is prescribed by law. Where a person is found guilty by the Court after a defended hearing or before the Court after a plea of guilty, that person is convicted within the provisions of Section 8. A sentence of imprisonment is then mandatory.

3. The proviso to Section 8 of the Dangerous Drugs Act (as amended) states that "the provisions of Section 29 of the Penal Code and any other law shall not apply to any sentence to be imposed under this Act." Section 44 of the Penal Code is within the term "any other law" and accordingly does not apply to sentencing for an offence under Section 8.

In the present case the Respondent pleaded guilty to the charge under Section 8 of the Dangerous Drugs Act of being found in possession of Indian Hemp. Probably because he had previously pleaded not guilty, the learned Magistrate then asked him if he was sure that he wanted to plead Guilty and the Respondent answered, "Yes". The propriety and unequivocality of the plea was confirmed by the facts that were then given by the prosecutor and admitted by the Respondent. The learned Magistrate was required by Section 206 of the Criminal Procedure Code to take a plea from the Respondent. He was also bound to accept an unequivocal plea of guilty supported by the facts and thereby "convict" the Respondent. He could not, for instance, refuse to do so because he considered the offence to be trivial or the statutory penalty to be harsh. In this case the learned Magistrate clearly accepted the Respondent's plea of guilty. That amounted to a conviction for the offence within the meaning of that word as used in Section 8. The only sentence that could then be imposed by the learned Magistrate was immediate imprisonment in accordance with the provisions of the Section. The purported discharge of the Respondent was wrong in principle and contrary to the express provisions of both Sections 8 of the Dangerous Drugs Act (as Amended) and Section 44 of the Penal Code. It must be quashed and a sentence of imprisonment imposed within the limits prescribed by the Third Schedule to the Dangerous Drugs Act.

This penalty may seem harsh for possession of such a small quantity of Indian Hemp and this is one of the factors that influenced the learned Magistrate to extend leniency by discharging the Respondent. However, it is the penalty that the law of the country demands. The legislators have considered illegal drugs to be so deleterious in the community that an immediate prison sentence must be imposed upon every person who offends. Any relaxation from the strictures of these provisions must be initiated by Parliament and not judicial innovation. It is not for the Courts to usurp or pre-empt the legitimate functions of Government.

It is unfortunate that the Respondent must now be sentenced to imprisonment for an offence committed over two years ago and after he was discharged in the Magistrates Court. However, a substantial portion of that delay was caused by the Respondent absconding on bail in the Magistrates Court. Moreover, this offence was caused only five days after the accused was given a suspended prison sentence for an offence of house breaking. Details of this earlier conviction were presented to the Court. The Respondent is fortunate that the learned Magistrate did not consider the activation of that earlier prison sentence.

In view of the small quantity of Indian Hemp found in the Respondent's possession, I will impose the minimum sentence permitted for this offence.

I make the following orders:

1. The appeal against sentence is allowed.

2. The discharge of the Respondent in the Magistrates Court pursuant to Section 44 of the Penal Code is quashed.

3. In substitution therefore the Respondent is sentenced to 3 month's imprisonment.

Justice D. B. Pain.