Download Lemeki Tunidau v State HAA045J.03S - Law Fiji

3the fact that the Appellant was a first offender and passed“a minimum sentence of 12 months imprisonment.”The learned Magistrate erred in finding that theoffence of Indian hemp carried a minimum mandatory term of12 months imprisonment. The decision of Prakash J inHarris Ram Swaroop –v- The State HAA014/01L was that theminimum terms of imprisonment under the Dangerous Drugs ActAmendment Decree No. 4 of 1990 and No. 1 of 1999 wereunconstitutional, and that the courts had a discretion toimpose lesser or alternative punishments. The maximumterms under the Decree of 1990 for growing Indian hempremain.With the legislative minimum term removed, it must nowbe for the courts to establish suitable tariffs for drugsoffences in Fiji. This is only possible if counsel areable to provide to the courts comparable sentences forsimilar offences abroad. This has not been possible inthis case.However, in England a sentence of 6 monthsimprisonment would be considered appropriate for theoffence of growing a small amount of marijuana for thepurpose of sale. The sentences prescribed for theimportation, supply and possession of drugs, by the 1971Misuse of Drugs Act (U.K.) vary widely. Section 110 of thePowers of Criminal Courts (Sentencing) Act 2000 providesfor the only minimum mandatory term of seven yearsimprisonment for a third offence of the trafficking ofClass A drugs. However that section allows the court a

6Are there any other factors relevant to the case whichmight justify suspension? Although the Appellant’s studieshave been cut short because he is serving a custodialsentence, he could potentially have introduced marijuana toothers at the Institute and thus hindered their studies.Drugs offences have created a real problem for Fijisociety, especially amongst the young, and I do notconsider that a suspended sentence is a sentence whichreflects the community’s concerns about the growing andselling of dangerous drugs. Nor is financial hardship amitigating factor. Just as contract killing cannot bemitigated by financial need, so is the growing of marijuanaunjustified by the financial hardship of the growers andtraffickers.In all the circumstances a sentence of 6 monthsimprisonment is appropriate for the Appellant who grew 0.5grams of marijuana, who was a first offender and whopleaded guilty. I order that the sentence of 12 monthsimprisonment be quashed and substituted with a term of 6months imprisonment.………………………………………………………Nazhat ShameemJUDGEAt Suva24 th October 2003