Narayan v The State [2003] FJHC 70; HAA0009J.2003S (24 March 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0009 OF 2003S

Between:

AVENDRA NARAYAN
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Mr D. Prasad for State

Hearing: 19th March 2003
Judgment: 24th March 2003

JUDGMENT

The Appellant was sentenced to 5 years imprisonment on the following charge:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to Section 8(b) of Dangerous Drugs Act (Amendment) Decree No. 4 of 1990 and the Dangerous Drugs Act (Amendment) Decree No. 1 of 1991.

Particulars of Offence

AVENDRA NARAYAN s/o RUP NARAYAN on the 27th day of September, 2001 at Nausori in the Central Division was found in possession of 1404.2 grams of Dangerous Drug namely Indian hemp.

The case was first called on 6th February 2002 and the Appellant, who was unrepresented, pleaded not guilty. He changed his plea on the 19th of November 2002. The prosecution outlined the facts. They were that on 27th September 2001, the police at Nausori received information that the Appellant was dealing in drugs. They searched his house and found 1404.2 grams of cannabis sativa. The Appellant admitted these facts and was convicted. He admitted 5 previous convictions, 2 of which were for the same offence.

In mitigation he called a witness, Mr Hari Karan, a Town Councillor and Justice of the Peace. He said that he was the Appellant’s employer. He said that the Appellant had 4 children and was the sole breadwinner in his family. He was a 30 year old married man.

The Court said:- “Sentenced to 5 years imprisonment. I cannot impose a lighter sentence in this case in view of the quantity of Indian hemp found in accused’s possession which is 1404.02g. It appears that the accused is trafficking drugs.”

The Appellant now appeals against this sentence, saying that it is harsh and excessive. He expressed remorse and said that his incarceration would destroy his marriage. He said that although he had been in possession of a large amount of marijuana, he had kept it for his own use.

State counsel opposed the appeal saying that the maximum sentence was 20 years imprisonment, that the Appellant had previous convictions and that he must have been trafficking drugs with the large amount found. He very fairly pointed out that the charge did not refer to section 41(2) of the Dangerous Drugs Act, but submitted that this omission was not a defect which nullified the charge, or caused prejudice to the Appellant. I agree with him. Section 41(2) has in any event been repealed and replaced by the 1990 Dangerous Drugs Decree. The charge does refer to the section creating the offence, and to the section replacing the penalty provisions of section 41(2) of the Act. Section 119 of the Criminal Procedure Code provides:

“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”

Section 122(a)(ii) provides that:

“the statement of offence shall describe the offence shortly in ordinary language avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence;”

In this case the enactment creating the offence was section 8(b) of the Dangerous Drugs Act. That enactment and the provisions of the Decrees amending the penalty provisions, were specified in the charge. Section 122 was therefore complied with.

In respect of the appeal against sentence, I do not consider the 5 year term to be manifestly excessive. Although a Magistrate can now impose less than the former minimum statutory limit of 5 years, much depends on the amount of drugs found, and the reason for possession.

The Appellant does not agree that he was a drug dealer, but there is no denying that 1404.02 grams of marijuana is an excessive amount if he had kept it for his own use. Further, those in the drugs business, who on apprehension disclose names and contacts of others involved in this destructive trade, may well deserve some leniency for assisting the police in their investigations. However, in this case the Appellant does not appear to have made any such disclosures. He did not deserve the leniency normally extended to first offenders, or youthful offenders.

In all the circumstances I do not consider that he erred in imposing the 5 year term. For these reasons this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
24th March 2003