State v Nauluvula [2004] FJHC 161; HAA0060J.2004S (8 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0060 OF 2004S

Between:

THE STATE
Appellant

And:

EDSON WONG NAULUVULA
Respondent

Hearing: 1st October 2004
Judgment: 8th October 2004

Counsel: Mr. W. Kuruisaqila for State
Ms B. Malimali for Respondent

JUDGMENT

This is the State’s appeal against sentence. The Respondent was charged as follows:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8(b) of the Dangerous Drugs Act 114 as amended by Dangerous Drug Act Amendment Decree No. 4 of 1990 and Dangerous Drug Act Amendment Decree No. 1 of 1991.

Particulars of Offence

EDSON WONG NAULUVULA on the 6th day of March, 2004 at Nasinu in the Central Division, was found in possession of Dangerous Drugs, namely 51.3 grams of Indian Hemp.

On the 13th of April 2004 he pleaded guilty to the charge in the Suva Magistrates’ Court. He was represented by counsel. The very brief facts were that on the 6th of March 2004 at 10am, PC 2920 Viliame and his team were on patrol on Davula Road, Nadera when they saw the Respondent. He was sitting in a taxi with a carry bag. DC Viliame searched the bag and found dried leaves inside it. He suspected that they were Indian hemp leaves. He arrested the Respondent and interviewed him under caution. The facts do not disclose what the Respondent said under caution. However the leaves were analysed and it was confirmed that they were of cannabis sativa or Indian hemp to the total weight of 51.3 grams. The Respondent was charged.

The Respondent admitted these facts and one previous conviction for assault in 1994. In mitigation counsel said that he is 42 years old, married with 4 young children attending school, that he is the sole breadwinner, that he operates a canteen at home and works as a handyman at P.J. Twomey Hospital, and that he was willing to do community service at his church.

In sentencing him, the learned Magistrate said that the facts and the quantity of marijuana found on him indicated that he was selling the drugs for a living. She decided however not to impose a custodial sentence but instead imposed a sentence of 12 months imprisonment suspended for 2 years. She also fined him $200.

The State submits that this sentence was manifestly lenient. At the hearing of this appeal, counsel for the State referred to the case of Meli Ba Vesi v. State Crim. App. No. HAA0027 of 2004 and said that the facts should have led to a custodial sentence. Counsel for the Respondent disagreed saying that in State v. Tomasi Rawlands Niumatasere Cr. App. R. HAA0007 of 2004S, a man found in possession of 57.6 grams of marijuana was sentenced to community service by the High Court. She submitted that a suspended sentence was appropriate in this case because of the Respondent’s good character, there was no history of taking drugs, he had a young family and his employment history.

In Meli Ba Vesi Winter J considered the case of an appellant found in possession of 6 bags of marijuana. He had admitted supplying and selling the drugs. His Lordship found that in deciding on sentence the issue is not the amount of drugs found, but the purpose of the possession and the degree of involvement the offender might have in the sale of the drugs. He said at page 6:

“In R v. Smith [1980] NZCA 20; [1980] 1 NZLR 412, the New Zealand Court of Appeal reviewed the level of cannabis drug sentences upheld in that country and found it broadly comparable to the United Kingdom level. In R v. Aramah [1982] 76 Cr. App. R.190, it was said that supplying a number of small sellers – “wholesaling” – comes to the top of the bracket, “small scale” supplies could expect 2 to 3 years imprisonment. At the other end is the retailer of a small amount to a consumer.

This analysis produces the result that where there is no commercial motive – for example when cannabis is supplied at a party – the offence might well be serious enough to only justify a short custodial sentence that might be suspended.”

Much therefore depends on the intention of the offender in the possession of the drugs. Inferences as to intention may be drawn from the circumstances of the case. Winter J said that these circumstances might be:

“- the amount of the drug.

- packaging – plastic/paper foil
- Acknowledgments of dealing.
- Convenient bundles of cash, frequently in the denominations of the trade.
- Preparation for sale or distribution.”

In Tomasi Rawlands Niumatasere (supra) the respondent was found in possession of 37.6 grams of Indian hemp. The leaves were found in his bedroom, and he told the police that he smoked the leaves himself. There were no circumstances suggesting sale or supply, and a community work order was imposed. In that case community representatives had made submissions to the High Court that the offender had made earnest attempts to rehabilitate himself.

That case is distinguishable from the present one. Firstly the circumstances in which the Respondent was found in possession of the drugs indicated sale or supply. These circumstances included the carrying of the drugs in a bag and the fact that the Respondent had been found with the drugs in Raiwaqa when he lived in Nadera. Secondly, I see no compelling circumstances in the mitigation raised which might justify a departure from the tariff for similar offences. That tariff, for the small scale possession of cannabis for a commercial purpose on circumstantial evidence of sale is between 2 to 4 years. A starting point lower than 2 years would be justified where there is no evidence of frequent supply or sale.

In this case, a starting point of 18 months imprisonment is appropriate. For the amount of drugs, I increase sentence to 2 years. For good character (I disregard his one previous conviction), no history of drug supply, family circumstances, employment history and guilty plea, I reduce the sentence to 6 months imprisonment. I see no reason to suspend the sentence.

For these reasons, the appeal succeeds. The suspended sentence is quashed and is substituted with a 6 month term of imprisonment.

Nazhat Shameem
JUDGE

At Suva
8th October 2004