R v Smikle

• Jurisdiction: Jamaica
• Judge: MacGregor, C.J.
• Judgment Date: 23 June 1959
• Neutral Citation: JM 1959 CA 4
• Court: Court of Appeal (Jamaica)
• Date: 23 June 1959

Court of Appeal

MacGregor, C.J.; Semper, J.A.; Duffus, J.A.

R.

and

Smikle

Appearances:

Parkinson for the appellant.

Brandon for the Crown.

Criminal law - Sentence — Possession of ganja — Dangerous Drugs Law, Cap.90, s.22.

MacGregor, C.J.

1 The appellant was convicted by the resident magistrate, St.Mary, of being in possession of ganja and was sentenced to 6 months' hard labour. He appealed, and two grounds only were argued before us, firstly that the conviction was unreasonable in view of the improbabilities of the case presented by the Crown, and secondly that it was a proper case for the Court to have inflicted a fine.

2 As to the first ground of appeal, it was a question of fact for the consideration of the learned resident magistrate and the Court was not prepared to reverse his finding. The appeal against conviction therefore failed.

3 The Court was further of opinion that the sentence was a proper one but promised to put its reasons for this opinion in writing, which we now proceed to do.

4 The section of the Dangerous Drugs Law, Cap.90 [J.], which imposes the penalty for the offence of possessing ganja is s.22 (2), hereafter referred to as s.22. The relevant portions are:

“(2)(a) Save as is expressly provided in paragraph (b) of this subsection, every person who is guilty of an offence against this Law shall be liable on summary conviction before a resident magistrate to a fine not exceeding one hundred pounds, or to imprisonment with hardlabour for a term not exceeding twelve months, or to both such fine and imprisonment, and in the case of a second or subsequent conviction to a fine not exceeding two hundred and fifty pounds, or to imprisonment with hard labour for a term not exceeding two years, or to both such fine and imprisonment.

(b) Notwithstanding anything in paragraph (a) of this subsection, every person who is guilty of the offence of-

• (i).cultivating ganja; or

• (ii).being in possession of ganja; or

• (iii).selling or otherwise dealing in ganja,

shall, on summary conviction before a resident magistrate for any such offence, be imprisoned with hard labour for a term not exceeding twelve months, and in addition to such imprisonment shall further be liable to a fine not exceeding one hundred pounds:

Provided that, in the case of a second or subsequent conviction for any such offence, the offender shall be imprisoned with hard labour for a term not exceeding two years, and in addition to such imprisonment shall further be liable to a fine not exceeding two hundred and fifty pounds.”

5 It will therefore be seen that while subsection (2) (a) permits the infliction of a fine for offences not mentioned in subsection (2) (b), that latter subsection for the three types of offences mentioned therein, including the possession of ganja, is an absolute provision for a sentence of a term of imprisonment with or without the addition to such imprisonment of a fine.

6 It is necessary to consider the previous legislation. Section 28 (2) of the Dangerous Drugs Law, Cap.78, of the 1938 Edition of the REVISED Laws of JAMAICA, provided:

“(2) Any person guilty of an offence against this Law shall be liable on summary conviction before a resident magistrate to a fine not exceeding one hundred pounds or to imprisonment with or without hard labour for a term not exceeding six months or to both such fine and imprisonment, and in the case of a second or subsequent conviction to a fine not exceeding two hundred and fifty pounds, or to imprisonment with or without hard labour for a term not exceeding two years, or to both such fine and imprisonment, and the Court dealing with the case may, in addition to any other punishment, order the goods in respect of which the offence was committed to be forfeited.”

7 It will be seen that these provisions as to penalties gave the Court power to impose a fine for the commission...