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Nauluvula v The State [2002] FJHC 156; HAA0052J.2002L (28 August 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0052 OF 2002L

Between:

FREDDY NAULUVULA
Appellant

And:

THE STATE
Respondent

Hearing: 23rd August 2002
Judgment: 28th August 2002

Counsel: Appellant in Person
Mr. V. Vosarogo for State

JUDGMENT

The Appellant pleaded guilty to the following charge in the Sigatoka Magistrate=s Court on 25^th April 2002:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8(b) of the Dangerous Drugs Act, Cap. 114 and section 3 of the Dangerous Drugs Act as amended by Decree No. 4 of the Fiji Republic Gazette No. 10 of 1990 and section 2 of the Dangerous Drugs Act (Amended) Decree No. 1 of 1991.

Particulars of Offence

FREDDY NAULUVULA, on the 18^th day of July 2000 at Nacocolevu, Sigatoka in the Western Division, was found in possession of 640.1 gms of Indian Hemp.

The facts were that on the 18^th of July 2000, the police received information that a vehicle CM 402 had left Keiyasi and was heading towards Sigatoka, carrying marijuana. They stopped the vehicle at Nacocolevu. The Appellant was sitting in the front passenger seat with a black carry bag containing 640.1 grams of marijuana. The Appellant was interviewed by the police and he admitted carrying the marijuana in the bag. He said he knew there was marijuana in it, and that his object had been to deliver the drugs to a drug dealer friend of his.

The facts were admitted. The Appellant tried to obtain legal aid, but his request was refused. He then asked for a time to find a lawyer. The case was adjourned for a week to allow him to find one. On 9^th May 2002, he told the Magistrate that he could not find a lawyer. She then proceeded to hear mitigation.

In mitigation the Appellant said that he had not offended in the last two years and had joined a Christian ministry. He said he had a wife and child.

The learned Magistrate then imposed the minimum possible sentence for more than 500 grams of Indian hemp, that of 5 years imprisonment.

The Appellant now appeals against that sentence on the ground that the mandatory sentence offended the principle of the independence of the judiciary, and was a grossly disproportionate sentence. Although he did not appeal against conviction, I perused the court record with care to ensure that he was not prejudiced by lack of legal representation. I am satisfied that he was not.

The question of whether mandatory sentences generally are inconsistent with the principle of the independence of the judiciary, has been canvassed by courts in the past. I reviewed those decisions in State -v- Audie Pickering Miscellaneous Action No. HAM0007 of 2001S, and found that the judicial consensus appeared to be that minimum mandatory sentences did not generally offend the principle of the independence of the judiciary, or of the doctrine of the separation of powers.

However, minimum mandatory sentences can offend section 25(1) of the Constitution, which protects offenders from Adisproportionately severe treatment or punishment.@ A court can declare a punishment disproportionately severe generally, on the ground that such punishment would be disproportionate for a reasonable hypothetical offender. It can also so declare on the ground that the punishment is disproportionately severe for a particular offender. The more serious the offence, the less likely it is, that a sentence will be declared disproportionately severe.

In this case the Appellant was charged with being in possession of more than 500 grams of marijuana. He admitted that the drugs were intended for a dealer. The trafficking and dealing in drugs, are very serious problems in Fiji. It is because of the growers, dealers and traffickers, that the lives of many young people are destroyed by drug dependency. In the circumstances I find that a sentence of 5 years imprisonment is not disproportionately severe. Indeed, even if the Dangerous Drugs Act did not provide for a minimum mandatory sentence, it is likely that the Magistrate would have sentenced the Appellant to the same sentence of 5 years imprisonment.

The sentence is not disproportionate to the offence, either in principle, or on the facts of this case. The appeal against sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
28^th August 2002