Warnecke v R [1983] SBHC 17; [1983] SILR 279 (9 December 1983)

[1983] SILR 279

IN THE HIGH COURT OF THE SOLOMON ISLANDS

Criminal Appeal Case No. 23 of 1983

WARNECKE

v

R.

High Court of Solomon Islands
{Daly C.J.)
Criminal Appeal Case No. 23 of 1983

9th December 1983

Criminal case - sentence - drug offences - need for deterrence in Solomon Islands.

Facts:

The Appellant was convicted of growing Indian Hemp c/s 8(a) of the Dangerous Drugs Act. He was sentenced to 3 months imprisonment. The Appellant, an expatriate businessman aged 37 years, was found cultivating 7 plants on Mount Austen. He had no previous convictions and pleaded guilty. On appeal against sentence:

Held:

Despite the fact this was a severe sentence for the Appellant, drug offences in Solomon Islands called for deterrent sentences to prevent the start of a drug problem. This sentence was not wrong in principle or manifestly excessive.

Appeal dismissed.

For Appellant: A. Nori
For Respondent: T Kama

Daly CJ: This Appellant Ronald Edwin WARNECKE was convicted on the 26th November, 1983 before the Chief Magistrate at Honiara of two offences. I am presently only concerned with one of them, that is, growing Indian Hemp c/s 8(a) of the Dangerous Drugs Act (Cap. 53). The Appellant pleaded guilty to that offence and was sentenced to 3months -imprisonment. Against that sentence he now appeals.

The facts as related by the prosecution were that the Appellant, an expatriate who came to Solomon Islands in October 1982, was growing 7 cannabis sativa plants in a remote area on Mount Austen in November of this year. This activity was detected because prisoners from Rove prison found one of the plants and removed it and it was found to be the plant prescribed in the Dangerous Drugs Act. Subsequently the police set watch on the plants and arrested the Appellant when he appeared to tend the plants.

The Appellant was co-operative with the police and with the Court. He admitted planting the seeds some three months earlier and there was no dispute but that the drug to be gained from the plant was for his own personal consumption. The Appellant’s case in the court below was that he was taking to cannabis to prevent himself drinking alcohol as he had been advised that drinking alcohol could eventually have serious consequences to him. The Appellant is a man aged 37 years, married and a senior businessman running one company in Solomon Islands and assisting in another. I am told that imprisonment may create difficulties in the continuance of those businesses and, as is inevitably the case, will cause difficulties in his personal life.

Undoubtedly for such an Appellant a sentence of three months imprisonment is a severe sentence. What this Court must ask itself is, is that sentence manifestly excessive or wrong in principle in such a way as to enable this court to interfere with it on appeal?

The learned trial magistrate took the view that this conduct called for a deterrent sentence. In paragraphs, 4 and 5 of his judgment he said: -

“Those who propagate such plants in this country for whatever purposes make them available for drug taking purposes. I have heard the reason why you embarked upon this course of conduct and take that into account.

There is at the present time, so far as I am aware, no drug problem in the Solomon Islands based upon cannabis or similar drugs and this court will not stand idly by and witness the initial stages that could herald a future problem.”

It seems to this Court that the observations as to the course to be adopted by courts facing the initial stages of a dangerous drug problem are entirely sound. No country wants prohibited drugs within its shores if it can possibly avoid it and it is the duty of the courts to reflect that view. Solomon Islands has been fortunate in avoiding that kind of problem and we should do everything in our power to retain that fortunate position. I agree with the learned magistrate that in the present situation of Solomon Islands offences of this kind, whoever they are committed by, require deterrent sentences.

Mr Nori submits that to impose a deterrent sentence on a man who can advance the mitigation available to this Appellant is wrong in principle. There can be no suggestion that the magistrate ignored those mitigating features. I too take them into account and those additionally advanced to me. Without those features there is every likelihood that the sentence would have been longer than it is.

Mr Nori also advanced an argument based on the form of the penalty provision. Section 39(2) of the Dangerous Drugs Act imposes penalties for a large number of offences, under the Act which range from the comparatively trivial (if any activity in relation to drugs can be said to be trivial) to the extremely serious. The magistrate was obviously aware that he had power to fine and decided to reject that option. The argument that Parliament indicated that a fine was to be the penalty for this particular offence where it is not coupled with aggravating features is quite untenable. Parliament prescribed maximum penalties and left the courts with the discretionary power on the particular facts and circumstances before them to decide the actual penalty.

There is, in my judgment, no indication of any error in the approach of the magistrate to sentence in the circumstances of this particular case. This Court, with its limited powers as an appellate tribunal, is quite unable to say that the sentence of three months imprisonment imposed upon the Appellant is wrong in principle or manifestly excessive.

The appeal is dismissed.