Supreme Court
Appeal No. 7 of 1984
17th July, 1984
Moe, C.J.

Mr. G. Gandhi for the Appellant
Mr. S. Sampson for the Respondent

Inferior Court Appeal - Dangerous Drugs Ordinance - Whether sentence of possession of Indian Hemp to lenient - Whether decision to defer question of forfeiture of motor vehicle to a later date was erroneous in point of law - Decision of magistrate set aside - New sentence ordered.

D E C I S I O N

The Respondent was charged before the magistrate with two offences. Firstly, that he had in his possession 940 pounds of Indian Hemp, secondly that he had in his possession four drums of Aviation fuel without the prior permission of the Civil Aviation Officer. On 7th May, 1984 he pleaded guilty to both offences.

The facts recounted by the prosecutor and recorded by the magistrate were:-

"On 1st May, 1984, 11:00 a.m. to 11:30 a.m. a group of B.D.F. personnel led by P.C. 235 Thompson were encamped at Sarteneja airstrip and they saw a blue van with L.P. O.W.K. - C-1190 arrive at the strip and park. This van was driven by Defendant Bartley. Shortly after, a plane landed and stopped nearby. The party of men (B.D.F. and Police) moved on to the airstrip towards the vehicle and plane. A number of people who were there ran off into the bushes - six to seven persons, leaving the two Defendants on the scene. At the scene some 32 parcels of marijuana were found, 15 being in the van, 17 on the ground near the van. Also, nearby were four drums of aviation fuel. As a result of these, both Defendants were arrested for possessing dangerous drugs and aviation fuel. They were taken to the Orange Walk Police Station along with the drugs and fuel. The drugs were weighed and totaled 940 pounds. Samples were taken at random from the parcels and sealed in the presence of each Defendant. They were formally charged thereafter. Defendant Bartley claimed that the articles were his - both dangerous drugs and aviation fuel. This is one of the parcels found - the others were similar in size (1 grey plastic wrapped bundle)."

The Respondent was convicted and for the offence of possession of Indian Hemp was fined $15,000.00 plus $5.00 costs to be paid by the 14th May, 1984 in default two years imprisonment. For the offence of possession of aviation fuel without permission he was fined $1,000.00 to be paid by the 14th May, 1984 in default six months imprisonment. The Magistrate also ordered that forfeiture of the Dodge Van was to be determined on the 14th May, 1984.

The prosecution appealed against the decision of the Magistrate on the grounds:-

1. The sentence on the charge of Possession of Indian Hemp was unduly lenient.

2. The decision of the learned Magistrate to defer the question of forfeiture of the motor vehicle (Dodge Van) to a later date was erroneous in point of law.

In a statement of reasons for sentence the Magistrate stated he accepted arguments
advanced in plea of mitigation which were:-

1. The Respondent had pleaded guilty;

2. Two previous convictions of the accused for possession of dangerous drugs were in respect of small quantities, first conviction being June, 1971, the second in June, 1980;

3. This occasion is the first embarkation on a commercial scale; and

4. The Defendant was sorry about what happened.

The Magistrate said he also bore in mind the maximum penalty which could be imposed and took into account the high probability of the motor van being forfeited. The learned director has submitted that the quantity and value of the Indian Hemp involved ought to be taken into account. He contends Indian Hemp has a street value of about $200.00 per pound. Further that the circumstances surrounding the possession of the Indian Hemp and the prevalence of the offence ought also to have been taken into account. The learned director has also submitted that the Magistrate was wrong in law in not ordering forfeiture of the dodge van as is mandated by section 19A(1) of the Dangerous Drugs Ordinance. Counsel for the Respondent has submitted that the Magistrate acted reasonably in the application of the relevant principles and contends that the Magistrate in declining to order forfeiture of the dodge van at that time was doing as much as he could have done in the particular circumstances.

This appeal provides me with an opportunity to deal with a matter which is causing much concern. It appears that Magistrates have been treating offences against the Dangerous Drugs Ordinance Chapter 85 as less serious than they really are; firstly, less serious than the legislature has indicated they are to be regarded and secondly, less serious than the community as a whole would wish. It is true that one cannot say in advance what the sentence is to be in any particular case but I must stress that the courts, both superior and inferior, have a duty to reflect those concerns.

In determining sentence, the gravity of the offence itself is to be considered; the maximum penalty for the offence under review is a fine of $100,000.00 or imprisonment for five years or both such fine and imprisonment. The prevalence of the offence must be taken into account - the offence under review has increased at an alarming rate and magistrates in every judicial district are dealing with many of these cases. The previous convictions of the accused for the particular offence are to be considered. - In this case, the Respondent had two such convictions. The circumstances surrounding the offence, which may be aggravating or mitigating are to be considered. It has to be ever borne in mind that the courts duty encompasses not only punishing the offender, but also deterring him and others from committing similar offences. In 1980 the Inferior Court Appeal of Austin and Godshall v. A.I.P. Herrera I took the opportunity to demonstrate the kind of sentence which may be imposed in the circumstances of that case when the maximum penalty had been set at $10,000 fine and imprisonment for one year. Since then the legislature has found it necessary to stipulate severer penalties. I think I need to give another general guide to Magistrates as to the kind of sentence appropriate in the kind of circumstances of this case.

In my view in the instant case the amount of 940 pounds of Indian hemp has to be taken into account. The amount was already parcelled into 32 sacks, driven to an airstrip where an airplane arrived. The fact that it was an exercise on a commercial scale as counsel for the Respondent himself implied in his plea had to be take in to account. These would be in addition to matters already pointed out. It is evident that the Magistrate did not give consideration to all these matters which he ought to have taken into account nor bore in mind certain principles applicable when imposing a sentence. I agree that the sentence in this case was unduly lenient.

Now section 19A(1) of the Dangerous Drugs Ordinance Chapter 85 provides:-

"Where any person is convicted of an offence or of an attempt to commit an offence or of soliciting or inciting the commission of an offence under this Ordinance and the court by which such person is convicted finds that any aircraft, vessel or vehicle used or employed by such person in the commission or to facilitate the commission of the offence of which he is convicted, such aircraft, and such aircraft, vessel or vehicle shall be forfeited."

Section 19A(2) by its proviso says:

"Provided that no order for the forfeiture of any vehicle, vessel or aircraft shall be made under subsection (1) or (2) of this section if the owner of such vehicle, vessel or aircraft satisfies the court at the conclusion of the trial of any person mentioned in subsection (1) of this section, or satisfies the magistrate in any inquiry held under subsection (2) of this section, that neither he nor his servant or agent was aware that such vehicle, vessel or aircraft was being so used or employed or if he or his servant or agent was so aware, that all reasonable steps were taken to prevent it being so used or employed."

Consequently, where an accused is convicted for an offence under the Ordinance and the Court finds that a vehicle was used in the commission of the offence by the person convicted, the Court must order forfeiture of that vehicle unless conditions set out in the proviso (supra) are satisfied.

The Magistrate did not indicate whether he adverted to these matters. This Court can now make the findings the Magistrate was entitled to make on the evidence before him. The facts stated show that the dodge van was used by the Respondent in the commission of the offence for which he was convicted. There is no evidence on which the Court can find that the owner satisfied the Magistrate as required under the provision to section 19A(2) in order to avoid the forfeiture mandated by section 19A(1). In this case the magistrate was also in error in not ordering forfeiture of the dodge van.

It was not necessary to decide for the purposes of this case whether an owner of an aircraft, vessel or vehicle can satisfy the conditions of the proviso to section 19A(2) after the conclusion of the hearing of the case in order to avoid forfeiture. But it may be observed that the decision whether any aircraft, vessel or vehicle is to be forfeited is made where a person is convicted. That envisages that the hearing of the case against the person has concluded and the Court has proceeded to a verdict. Where the question whether or not the conditions set out in the proviso to section 19A(2) of the Ordinance has been covered or dealt with during the hearing of the case against the person, the court will be in a position to decide at the time it proceeds to conviction whether no order of forfeiture is to be made. If the matter has not been raised or dealt with during the hearing of the case, there ought to be no objection to the owner satisfying the conditions to avoid forfeiture before the magistrate determines the sentence to be passed. For in my view the court retains jurisdiction over the matter until it proceeds to sentence.

In the result the sentence of the Magistrate is set aside. I think the proper sentence in these circumstances is to be as follows:

(1) The Respondent to serve a term of nine months imprison-ment; and

(2) The Respondent to pay a fine of $25,000.00 in default two years imprisonment.

The dodge van OWK- C -1190 is also ordered to be forfeited to the Crown.

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