Yavala v State [2011] FJHC 485; HAA021.2011 (31 August 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 021 OF 2011

BETWEEN:

JEKESONI YAVALA
Appellant

AND:

STATE
Respondent

Counsel: Appellant in person
Ms. M. Fong for the State

Date of Hearing: 26 August 2011
Date of Judgment: 31 August 2011

JUDGMENT

1. On the 21st day of March 2011, at the Magistrates Court at Savusavu the appellant entered a plea of guilty to one charge of being in possession of illicit drugs contrary to Section 5(a) of the Illicit Drugs Act 2004. The drugs were 0.3 grammes of marijuana.

2. He faced a further charge of possession of illicit drugs to Section 5(a) to which he pleaded not guilty and went to trial. Those drugs were 762.8 grammes of marijuana. The matter was part heard when the appellant changed his plea to guilty on the 21st March 2011 and after agreeing the facts, he was convicted.

3. The Magistrate in passing sentence for both cases together took a starting point of seven years, adding two years for aggravating features which he said to be having the drugs for commercial sale deducting 2 years per mitigation advanced and one year discount for the belated plea, arriving at a total sentence of six years.

4. It is against this sentence that the appellant appeals on the grounds that it is harsh and excessive and inconsistent with other sentences handed down for the same offence.

5. The facts of the two cases were:

(i) (273/08) - A search of the appellant's house on the 3rd January 2007 uncovered a match box containing dried leaves. These were analysed and found to be cannabis of 0.3. grammes.

(ii) (274/08) - The accused was seen to be walking towards Naqaqa beach with a traveling bag and talking on his mobile phone. A passing soldier being suspicious contacted police and a chase ensued. The accused was apprehended and searched. The traveling bag contained dried leaves which were analysed by the Government Chemist and found to be 762.7 grammes of cannabis.

6. The Magistrate produced a written sentence ruling which is careful and painstakingly researched. He quite correctly and helpfully referred to the case of Bavesi HAA0027/04 in which Winter J imported categories of drug offending into Fiji jurisdiction, based on the New Zealand Court of Appeal decision in Terewi [1999] NZCA 92; [1999] 3 NZLR 62. In the Bavesi case Winter J, held that small scale cultivation of cannabis or possession for commercial purpose with the object of deriving profit should attract a starting point of between two and four years. The Judge further defined a third category of serious offenders for large scale commercial growing or sophisticated commercial enterprise leaders to starting point of five to six years.

7. Within the guidelines set in Bavesi, the starting point in this offence (small scale unsophisticated operation for supply) should be between two to four years. In the case of Michael Chandra HAC 41 of 2006 Goundar J handed down a sentence of two years and six months for possession of a similar quantity.

8. With an alarmingly glowing trend of cultivation and supply of cannabis to the urban young in Fiji, it may be that the guidelines set in Bavesi are out of date, and it could well be time that the Court of Appeal, or the High Court in a guideline judgment, revisits these parameters.

9. A Court is determining an appropriate sentence for possession of illicit drugs must start with a balancing exercise; first what is the amount of drugs seized and secondly what are the circumstances of possession. Obviously there will be a huge difference in sentencing between 10 grammes of marijuana for personal use and 8,000 grammes secreted in a vehicle on the way to market. More often that not the larger the seizure the more it will be part of a sophisticated operation for commercial supply.

10. The Magistrate has in his sentence analysed several sentencing cases for possession of cannabis, but unfortunately they are cases involving much larger quantities that this appellant was in possession of.

11. In the premises, the starting point selected by the Magistrate is too high, seven years being reserved for cases of sophisticated commercial supply of large quantities of cannabis. In addition to a high starting point the Magistrate has added two years for what he says is transporting the drugs for commercial supply but that aggravation is already subsumed in a high starting point under the Bavesi guidelines. The appellant has been penalized twice for possession for supply.

12. The appeal succeeds. The sentence passed below is quashed and a new sentence cast as follows:

For Case No. 274/08 (762.7 gms) a staring point four years is selected. There are no additional aggravating features to warrant increasing this period but he must receive credit for his guilty plea (even though belated) and for his personal mitigation. A deduction of two years for all of those factors would be appropriate resulting in a total final sentence of two years.

For the case of 273/08, he is sentenced to 6 months imprisonment to be served concurrently with the two years of 273/08.

This total sentence of two years will be served concurrently with the sentence of five years he is presently serving.

Paul K. Madigan
Judge

At Labasa
31 August, 2011