Yabaki v The State [2005] FJHC 111; HAA0025.2005 (13 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0025 OF 2005

BETWEEN:

SEKONAIA YABAKI
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. A. Ravindra-Singh – for State

Hearing/Judgment: 13th May, 2005

EX TEMPORE JUDGMENT

This is an extempore judgment given after a short sentencing appeal hearing and as such I reserve the right to recall or perfect the judgment to give it a better emphasis as I think fit.

Background:

The appellant pleaded guilty to one charge of being found in possession of dangerous drugs and upon his conviction on the 13th of January 2005 was sentenced to 18 months imprisonment.

On the 31st of August 2002 at about 2.30pm a prison officer became suspicious about a visitor to the Naboro Prison Compound.

That visitor was this appellant. He was searched and found to be in possession of 19 cannabis cigarettes concealed in the hem of his T-shirt.

He was detained then taken to the police station, caution interviewed and later released. The 19 cigarettes were analyzed and confirmed to be cannabis sativa commonly known as marijuana. The total gram weight of the 19 cigarettes was 5.7 grams.

There was some difficulty in locating the appellant. He was eventually found and charged and made his first appearance on the 31st of March 2004. He was finally sentenced on the 13th of January 2005 to 18 month's imprisonment.

The Appeal

He appeals complaining that this sentence is manifestly harsh and excessive. When he appeared before me this morning he was given his constitutional and legal aid warnings. He elected to proceed on his own. He relied on his written submissions filed with the grounds of appeal and only wished to emphasize to me that he considered the sentence should be reduced because it was harsh and excessive.

For the State counsel supplied written submissions. I must say that those submissions caused me some concern because ultimately counsel concedes that the sentence was harsh and excessive.

I drew counsel’s attention to my earlier decision of Bavesi v The State, HAA0027 of 2004 and the view I expressed in that case that the true culpability for this type of offending lies not in the amount or quantity of drugs found in any particular offender’s possession rather an enquiry about the degree of involvement of the offender in any supply or potential supply fixes appropriate starting points for penalty.

In this case the total weight of the cannabis found on the appellant was small only some 5.7 grams. However, of concern to me is that there is a clear inference from the place and circumstances of the possession that he was simply either acting as a courier for this drug into the jail or worse was supplying it or intending to supply it to prisoners.

I draw that conclusion from the summary of facts for three reasons:

1. He has a large list of previous drug related offences, offences of dishonesty, offences involving robbery and breaking and entry.
   
2. There may have only been 5.7 grams of cannabis but it was neatly prepared into 19 cigarettes.
   
3. Those 19 cigarettes were hidden in the hem of his T-shirt.
   
4. He was standing in line at a visitor centre about to be checked before entering a prison.
   

The irresistible inference in those circumstances is that he was taking the cannabis into the prison to distribute. It is highly unlikely that he had the 19 cigarettes hidden in the hem of his T-shirt merely to smoke them himself in the jail or indeed simply pass into the jail with the 19 cigarettes and then pass out of it and smoke them at some other time.

In Bavesi at page 13 I identified the method of sentencing drug offenders by an analysis of the probable use of the drug.

I repeat here what I said in Bavesi about those three categories.

Category 1 - relates to the growing of a small number of cannabis plants for personal use by an offender or possession of small amounts of cannabis coupled with technical supply of the drug to others on a non-commercial basis. I observe that a first offender might receive a short prison term, perhaps served in the community, but that a sentence starting point of 1-2 years would not be unexceptional.

Category 2 – relates to small scale cultivation of cannabis plants or possession for a commercial purpose with the object of deriving profit, circumstantial evidence of sale even on a small scale commercial basis. In my view the starting point for sentencing would normally be between 2 to 4 years. However, where sales are limited and infrequent the lowest starting point might be justified.

Category 3 – being reserved for the most serious classes of offending involving large scale commercial growing or possession of large amounts of drugs usually with a considerable degree of sophistication, large numbers of sales, circumstantial or direct evidence of commercial involvement, the starting point would generally be 5 to 6 years.

These are, of course, only starting points and the ultimate penalty would be impacted by other statutory requirements and aggravating and mitigating features.

Although the sentencing decision in the Magistrates Court is short it does cover the necessary ingredients and is correct in principle.

When I analyze the situation I find that this is a category 1 offence. I find that the circumstances of the offending are such that it is deserving of a sentence starting point of 2 years. I would aggravate the penalty, because of the offender’s lengthy previous history, by a further 12 months making a total available penalty of 3 years.

However, the mitigating circumstance is that he did plead guilty sparing the State the necessary expense of trial. I have said in the past that is a prime mitigation deserving at least a third discount. That reduces the penalty by one year down to a total of 2 years. Then for the other mitigating features that he advanced on the day his personal circumstances, his poor and impoverished upbringing I would have thought a deduction of a further 6 months is appropriate. That brings the total available penalty exactly back to that imposed by the learned Magistrate.

For these reasons I cannot find that the sentence was harsh or excessive.

It needs to be emphasized again despite the popularity of cannabis, it is an illegal drug, it is the source and foundation of much crime and grief inside this community. Those that get involved with it run the risk of jail terms. Those that don’t learn their lesson and repeatedly become involved with it risk longer jail sentences and most importantly those that seek to supply the drug even on a casual basis or act as couriers of the drug in and around the community, especially in and out of jail, will end up in jail for considerable periods of time even although the amount of the drug they possessed was small.

Conclusion

For these reasons the sentencing appeal is dismissed and the sentence of 18 months imprisonment stands. You may stand down in custody.

Gerard Winter
JUDGE

At Suva
13th May, 2005