| Fiji Islands - Vatuniveivuke v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINALAL NO. 38 OF 1997
ass=MsoNormal amal align=center style=text-align:center>BETWEEN:
JOSEFA VATUNIVEIVUKE
Appellant
AND:
STATE
Respondent
Appellant in Person
Ms A. Driu for Respondent
JUDGMENT
On 9 June 1997 at Magistrate's Court Labasa, Moses Fernando Esq. sentenced the appellant on his own plea to six months' imprisonment
for the offence of being found in possession of dangerous drugs, namely, Indian hemp, contrary to section 8(b) and 41(2) of Dangerous Drugs Act Cap. 114 as amended by Dangerous Drugs Amendment Decree No. 4 of 1990.
The appeal is against severity of sentence.
The appellant told this Court that he is 19 years old; his mother is dead and father has remarried. He says that he is employed as
a digger at Mt. Kasi gold mine and is likely to lose his job if he stays long in prison. He is praying for reduction in sentence
as it is excessive.
The learned counsel for the Respondent submitted that the law provides for a mandatory sentence. In this case where the Appellant
was found with 2.9 grams a sentence of between 3 to 24 months is permitted by law. She said that in one case PAIN J sentenced the accused to 3 months when found with 1.98 gm and this Ms. Driu submits would have been a justifiable sentence.
The Court was referred to the case of ANDREW IAN CARTER v STATE (Cr. App. No. 31/91) in which FATIAKI J before the present amendment came about on appeal gave 9 months' imprisonment suspended for 3 years. When Ms Driu referred to this
case she was unaware that there was a further amendment to the said section 8. By Dangerous Drugs Act (Amendment) (No. 1) Decree
1991 dated 28 January 1991, section 8(b) of the principal Act was Amended by replacing it with the words:
"Provided that the provisions of Section 29 of the Penal Code and any other law shall not apply to any sentence to be imposed under this Act."
The law as it stands provides for immediate custodial sentence and the minimum and maximum sentences are provided in the Third Schedule
to Decree No. 4 of 1990.
As Ms. Driu concedes, and I agree, the sentence is on the high side given the range of sentences meted out previously for such an
offence. The appellant is due for release (after remission) in a few week's time, namely, on 8 October 1997.
I might observe at this stage that it is indeed a pity that young people like the appellant and many High School students end up in
prison for being found in possession of very small quantities of drug. Thought should be given to deal with such offenders in some
other way than an immediate prison sentence. It is suggested that the mandatory sentence provision be repealed particularly where
very small quantity of drug is involved and courts given discretion as the law was before the amendment to the Act was introduced.
For the above reasons the sentence of six months is set aside and it is substituted by one of 3½ months which would, after remission,
allow for his release from Prison forthwith.
The appeal is allowed to the above extent.
D. Pathik
Judge
At Labasa
25 August 1997
Haa0038j.97b
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