Anisimai v The State [2004] FJHC 62; HAA0066J.2003S (13 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0066 OF 2003S

Between:

JALE ANISIMAI
Appellant

And:

THE STATE
Respondent

Hearing: 6th February 2004
Judgment: 13th February 2004

Counsel: Appellant in Person
Ms. P. Madanavosa for State

JUDGMENT

This is an appeal against sentence. The Appellant was charged as follows:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to Section 8(b) and 41 (2) of Dangerous Drugs Act 114, amended by the Dangerous Drug Act (Amendment) Decree No. 4 of 1990 and Dangerous Drug Act (Amendment) Decree No. 1 of 1991.

Particulars of Offence

JALE ANISIMAI on the 13th day of July, 2002 at Nasinu in the Central Division was found in possession of 228.9 grammes of Indian Hemp.

He was tried on the 20th of May 2003. The evidence was that on the 13th of July 2002 at about 3.30pm, Special Constable Vilikesa met the Appellant at Tacirua. The Appellant was carrying a white plastic bag containing dried leaves. The bag was seized and the Appellant taken to the Police Station. The leaves were later analysed and found to be 228.9 grams of cannabis sativa or Indian hemp. The Appellant was interviewed under caution. He told the police that he sold yaqona as his business, and that he found the plastic bag with marijuana in it, at the bus stop. He said it didn’t belong to him. He said that the large sum of money also found on him, had been earned by him by selling yaqona.

In court the Appellant made an unsworn statement. He said that he had just picked up the plastic bag at the bus stop when the police arrived. He said there were two plastic bags and that he had only taken one. The learned Magistrate delivered his judgment on 8th August 2003. He found that the Appellant was in possession of Indian hemp and that he had known that the plastic bag contained Indian hemp because he had handed it over to the police on search.

He found that the Appellant had had knowledge that he was in possession of Indian hemp, and that it belonged to him. He convicted him and sentenced him to 12 months imprisonment.

The Appellant now appeals against this sentence, saying that he has 7 children to look after, that he is the sole breadwinner in his family, that his family is facing financial difficulties, that he worked as a labourer in a construction company and wanted to return to this employment. He asked for a reduction of his sentence.

The State opposes the appeal, saying that a sentence of 12 months imprisonment is not too harsh for someone found in possession of drugs.

Prakash J in Harris Ramswaroop v. The State HAA0014/01L declared the minimum mandatory sentences under the Dangerous Drugs Act (Amendment) Decrees in 1990 and 1991 to be unconstitutional. The maximum sentences under those Decrees remain. In the absence of settled tariffs in drugs-related cases, a good starting point is the former minimum sentence. The sentence should be adjusted according to mitigating and aggravating circumstances.

In this case, 12 months imprisonment was an appropriate starting point. After adjustment for mitigating and aggravating circumstances, the end result of 12 months imprisonment is not wrong in principle. The Appellant has already served half his sentence. His appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
13th February 2004