Naudreudre v The State [2003] FJHC 137; HAA0037J.2003S (19 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0037 OF 2003S

Between:

TOMASI NAUDREUDRE
Appellant

And:

STATE
Respondent

Hearing: 12th September 2003
Judgment: 19th September 2003

Counsel: Appellant in Person
Mr. N. Lajendra for State

JUDGMENT

This is an appeal against a sentence of 5 years imprisonment imposed by the Suva Magistrates’ Court on the 22nd of November 2002 for the following charge:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8(b) of Dangerous Drugs Act Cap 114 as amended by Dangerous Drug Act (Amendment) Decree Number 4 of 1990 and Dangerous Drug Act (Amendment) Decree Number 1 of 1991.

Particulars of Offence

TOMASI NAUDREUDRE and SEVULONI NABORISI, on the 21st day of November 2002 at Suva in the Central Division, were found in possession of 920.7 grams of Dangerous Drugs, namely Indian Hemp.

The grounds of appeal are that inadequate weight was put on previous good character and the plea of guilty and that the Appellant was unaware that the parcel he was asked to deliver contained marijuana.

The Appellant was charged with a co-accused. They both pleaded guilty. The facts were that the Appellant, who was a carpenter of Drasa, Vitogo, was arrested when he was found in possession of 920.7 grams of marijuana. He was interviewed under caution and he told the police that he and his co-accused had loaded the drugs into a taxi because they wanted to sell it on the road. The drugs were taken to the Koronivia Research Station where the Government Analyst confirmed that they were marijuana leaves weighing 920.7 grams.

These facts were admitted by the Appellant. He told the Court:

“I admit the 920.7 grams of Indian hemp was mine and I had it in my possession. I brought it from Nadroga to Suva to sell it in Suva.”

In mitigation the Appellant said he was 38 years old and was married with one child. He said that although he knew that selling drugs was illegal “it is very hard to find money these days.” He was a first offender. He asked for forgiveness.

The Court said that the offence was serious and carried a minimum sentence of 5 years imprisonment. He sentenced both accused to 5 years imprisonment.

There is no doubt, and State counsel concedes, that the High Court in Harris Ramswaroop –v- State HAA0014.2001L decided that all minimum mandatory terms provided for under the Dangerous Drugs Decree No. 4 of 1990, are invalid and unconstitutional. In that case Prakash J said, at page 25:

“In considering the Constitution and especially the Bill of Rights provisions it is clear that the provisions of the Dangerous Drugs Act (Amendment) Decrees contravene certain provisions of the Constitution. In particular, the mandatory sentencing provisions breach the separation of powers doctrine, contained in section 117(1) of the Constitution, and the independence of the judiciary vis-à-vis the legislative and executive branches as per section 118 of the Constitution. The setting of pre-determined mandatory sentences further breach the right to a fair trial before a court of law (section 29(1)) and the right to equality before the law (section 38(1)).”

In that case, the appellant was found in possession of 524.6 grams of marijuana and there was an admission of the intended sale of the drugs. In Tukai Taura –v- The State Crim. App. HAA0103 and 104 of 2002S, the appellant was found in possession of 490.9 grams of marijuana. In Harris Ramswaroop, a sentence of 5 years imprisonment was quashed and a sentence of 2½ years imprisonment was substituted. In Tukai Taura, I upheld a 3 year term of imprisonment.

In the absence of the minimum mandatory terms, it is now for the courts to set tariffs for being in possession of dangerous drugs. Such tariffs must cover a range of sentences appropriate for the least culpable offenders to the highly culpable. Further the maximum term imposed by the Decree has not been struck down. It is 20 years imprisonment, and it is an indication of how seriously the courts ought to look at the cases of those who are found in possession of more than 500 grams of marijuana. In that context, Harris Ramswaroop and Tukai Taura who were both found in possession of smaller amounts than this Appellant, are not comparable to this case.

The Appellant was in possession of almost 1000 grams and admitted his intention to sell the marijuana. In the light of these admissions to the Magistrates’ Court, his submission on appeal that he did not know what the parcel contained, cannot be accepted.

The growing, sale and trafficking of marijuana in Fiji, have become a matter of great concern to the community. One will never know how many school children, with promising lives, would have become this Appellant’s customers. Nor will one know how many lives would have been destroyed because the Appellant chose to make a living from the sale of marijuana. However, this is clearly a case in which neither previous good character, nor the guilty plea could have saved the Appellant from a substantial period of imprisonment.

An appropriate starting point for the possession of 500 grams or more of marijuana is 7 years imprisonment. In this case after reduction for the guilty plea and good character a sentence of 5 years imprisonment is quite appropriate. I cannot agree that it is harsh or excessive although the learned Magistrate did err when he said that he had no discretion to impose less than 5 years imprisonment.

For these reasons this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
19th September 2003