Kuese v The State [2003] FJHC 69; HAA0011J.2003S (21 March 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0011 OF 2003S

Between:

APISAI KUESE
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Mr D. Prasad for State

Hearing: 19th March 2003
Judgment: 21st March 2003

JUDGMENT

The Appellant was convicted on his plea of guilty, of the following charge:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to Section 8(b) and 41 of Dangerous Drugs Act (as amended by Dangerous Drugs Decree No. 4/1990 and 4 of 1991) Cap 114.

Particulars of Offence

APISAI KUESE, on the 29th day of October, 2002 at Nayavu, Tailevu in the Central Division, was found in possession of 2.8kg of dangerous drugs namely Indian hemp.

The Appellant pleaded guilty to the charge, on 31st October 2002. The facts were that on the 29th of October 2002, the police received information that the Appellant was transporting marijuana in his vehicle. They constructed a roadblock at Nayavu and stopped his vehicle. It was searched and a pillowcase was found in it, containing dried leaves. The leaves were tested and found to be 2.8kg of Indian hemp. Under caution the Appellant admitted that the drugs belonged to him. These facts were admitted. The Appellant was a first offender. In mitigation he said he was 25 years old and single. The court record reads:

“I went to Navosa to buy drugs and while coming across Nayavu he was stopped by police. He bought the 2.8kg of marijuana for $1000.00. Bought the marijuana from 2 men in town. Marijuana dealer in the whole of Fiji. No fixed address. I know marijuana is bad but continue to do with dealing marijuana to survive. Now realise my mistake.”

In his sentencing remarks, the learned Magistrate said that according to information received by police the Appellant was facing similar charges in Ba and Levuka. He said that this was a serious offence for which “imprisonment term is 5 years and the maximum is 20 years imprisonment.” He considered the serious effects of marijuana use in Fijian society, and sentenced the Appellant to 5 years imprisonment.

The Appellant appeals against this sentence, saying that it is harsh and excessive. In his submissions in court, he said that he was only taking the drugs from one dealer to another and had not benefited from the trafficking. He said that he had only been given marijuana to smoke, in return for delivering the drugs. This is, of course quite contrary to the court record. In the lower court he said he had bought the marijuana for $1000 and was a drug dealer.

Prakash J in Harris Ramswaroop –v- The State HAA0014.2001L held that the minimum mandatory terms of imprisonment under the Dangerous Drugs Act, as amended by Decrees No. 1 of 1990 and 4 of 1991 were unconstitutional and invalid. In that case he set aside a 5 year term of imprisonment and substituted it with a 2½ year term. However, in that case, as with subsequent cases before this Court, there was no evidence that the offender was more than a ‘prolific’ user. In this case, the court record shows that the Appellant was a drug dealer who made large sums of money from the drugs business. In these circumstances a 5 year sentence was quite justified given the prevalence of drug use in the community, and the level of the Appellant’s involvement in the trade. However, he ought to have been treated as a first offender. The fact that he had other pending cases at the time of sentencing was irrelevant. All offenders are presumed innocent until proven guilty (or until they have pleaded guilty). In the circumstances, he was entitled to be treated with the leniency usually shown to first offenders.

I therefore reduce his sentence by 1 year to reflect previous good character. His sentence is therefore 4 years imprisonment to run from 31st October 2002, when he was sentenced in the Magistrates’ Court. The appeal succeeds to this extent.

Nazhat Shameem
JUDGE

At Suva
21st March 2003