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Verealawa v The State [2004] FJHC 19; HAA0020J.2004B (24 August 2004)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0020.2004B

BETWEEN:

TEVITA VEREALAWA
APPELLANT

AND:

THE STATE
RESPONDENT

Appellant In Person
Ms Sofia Shah for the Respondent

Hearing: 27 July, 2004
Judgment: 24 August 2004

JUDGMENT

On 13 October 2003 the Appellant was sentenced, to 3 months imprisonment for the following offence:

Statement of Offence

GROWING INDIAN HEMP: Contrary to section 8 (a) and 41 (2) of the Dangerous Drugs Act Cap. 114 and the Dangerous Drugs (Amendment) Decree No. 4 of 1990 and the Dangerous Drugs (Amendment) Decree No. 1 of 1991.

Particulars of Offence

TEVITA VEREALAWA on the 19th day of October 2002, at Labasa in the Northern Division, was found growing 2 plants of Indian Hemp.

On the same day the Appellant was also sentenced to 3 years imprisonment for the following offence:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8 (b) of the Dangerous Drugs Act Cap. 114 as amended by the Dangerous Drugs (Amendment) Decree No. 4 of 1990 and the Dangerous Drugs (Amendment Decree) No. 1 of 1991.

Particulars of Offence

TEVITA VEREALAWA, on the 18th day of October 2002, at Labasa in the Northern Division, was found in possession of 375.9 grams of dangerous drugs namely Indian Hemp botanically known as CANNABIS SATIVA.

The learned Magistrate decided the two sentences to be served concurrently. The Appellant now appeals against the sentence.

The facts of the case are as follows. On consecutive dates of 18th and 19th October 2002, the police, acting upon information, searched the Appellant’s flat at Naodamu, Labasa. They recovered two plants which were confirmed by the Government analyst, to be Indian Hemp, and in addition found 17 plastic bags and 42 sachets the contents of which were found by the Government analyst to be dried Indian Hemp leaves of some 375.9 grams in total weight. The Appellant admitted both offences.

The Appeal

The ground of appeal is that the sentence of 3 years was harsh and excessive considering the amount of illegal substance found on him and also his mitigation.

The Sentence

On Criminal Appeal No. 20 of 2004, the maximum penalty of growing Indian Hemp is 12 months imprisonment. The learned Magistrate had however sentenced the Appellant to only 3 months imprisonment, the minimum sentence for the offence. In Criminal Appeal No. 21 of 2004, the learned Magistrate had imposed the maximum sentence of 3 years imprisonment under the law for a person found in possession of up to 500 grams of dangerous drugs. For the State, Ms Shah argued that in respect of Criminal Appeal No. 20, the learned Magistrate had been too lenient given that the Appellant had previous convictions and the fact that such sentence to be concurrent with the sentence in Criminal Appeal No. 21. Ms Shah submitted that the 3 months sentence should have run consecutive to the 3 year sentence in Criminal Appeal No. 21.

I have no cause to disturb the learned Magistrate’s decision. In my view the sentence of 3 months for cultivating 2 Indian Hemp plants was appropriate. There were no previous convictions for similar offence, although the Appellant was in 2002 fined $100.00 for in possession of dangerous drugs. Similarly, the sentence of 3 years imprisonment for Criminal Appeal No. 21, was neither harsh, nor excessive. The learned Magistrate had considered the Appellant’s similar previous conviction and the fact that the amount of drugs found on the Appellant was substantial. The Court especially took note of the growing drug problems in the Northern Division, and the social impact it had on the youth of the country. Under the circumstances it is important that the Court is also seen as playing its role in stopping the culture of drugs and its abuse, take a firm hold on the people in the Northern Division.

As to the State’s submission that the sentences should have been consecutive, I disagree. The learned Magistrate, in my view, had exercised his discretion correctly in making the lesser sentence run concurrent to the maximum sentence in the other. Although they have their own minimum and maximum tarrifs prescribed by law, this does not take away the discretionary powers vested in the Court to order the sentences under them to be served concurrently so long as the sentences satisfy the minimum requirements set down.

There are no redeeming feature or merits at all in the Appellant’s appeal. His broken family is unfortunate, but if he adheres to his belief that there is nothing wrong with using drugs, a point he put across quite forcefully before this Court, then he should be prepared for the worse. One can only feel sorry for his family.

The appeal is dismissed.

F. Jitoko
JUDGE

At Labasa
24 August 2004