Boroka v State [2001] FJHC 180; Criminal Appeal 2.2001 (23 April 2001)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2 OF 2001
(Labasa Mag. Ct. Crim. Case No. 677/2000)

Between:

IOWANE BOROKA
Appellant

And

THE STATE
Respondent

Appellant in person
Mr. J. Rabuku for the State

JUDGMENT

On 30 October 2000 the appellant in the Magistrate’s Court at Labasa was given the maximum sentence of imprisonment of 24 months for the offence of being found in possession of Indian hemp contrary to section 8(b) of the Dangerous Drugs Act Cap.114 as amended by Dangerous Drugs Act (Amendment) Decree No. 4 of 1990 and Dangerous Drugs Act (Amendment) Decree No. 1 of 1991.

The appeal is against sentence.

The appellant says that the sentence is excessive for being in possession of just 1.1 grammes of Indian hemp. He is pleading for reduction of sentence. He told this Court that he has a yagona plantation to look after, he was engaged to be married before he went to prison for this offence.

The learned State prosecutor concedes that the sentence is harsh in the circumstances and that the minimum sentence allowed by law would have been sufficient for the quantity of drug found on the appellant. The 24 months’ sentence is meant for upto 100 grammes. He has already served about 6 months’ imprisonment.

The Dangerous Drugs Act Cap. 114 and its amendments provide for minimum and maximum custodial sentences of imprisonment. For the present offence the minimum is 3 months and maximum 24 months for upto 100 grammes
of drug.

Here a very small quantity of drug was found on the appellant.

The learned Magistrate ought to have judicially exercised his discretion in the matter of appropriate sentence to be imposed in all the circumstances of this case. He has not stated any reason for imposing the maximum sentence. In fact he has not stated whether he took mitigating factors into account. The appellant has one previous conviction and that was in 1998 but that is not akin to the present offence. It appears that the learned Magistrate has through oversight failed to consider the factors to be taken into account before sentencing. A closer study of the Act would be advisable in future.

I therefore find that the sentence is harsh and excessive and wrong in principle. It is set aside and varied which would allow for his immediate release from prison.

The appeal is allowed.

D. Pathik
Judge

At Labasa
23 April 2001