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State v Kurunawai [2012] FJHC 1381; HAM009.2012S (19 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION
CRIMINAL REVIEW CASE NO. HAM 009 OF 2012S

STATE

vs

KOLITIO KURUNAWAI

Counsels : Mr. S. Vodokisolomone for State
Accused in Person
Hearing : 1st October, 2012
Ruling : 19th October, 2012

RULING ON REVIEW OF SENTENCE

1. On 30th March, 2012, you appeared in the Suva Magistrate Court on the following amended charge:
   

FIRST COUNT

Statement of Offence

UNLAWFUL CULTIVATING OF ILLICIT DRUGS: contrary to section 5(a) of Illicit Drugs Act, 2004.

Particulars of Offence

KOLITIO KURUNAWAI on the 21st day of February, 2012, at Nabibi Farm, Tavuki Village, Kadavu in the Eastern Division without lawful authority, cultivated 6 plants weighing 408.3 grams of Cannabis Sativa, an Illicit Drugs.

SECOND COUNT

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUGS: contrary to section 5(a) of Illicit Drugs Act, 2004.

Particulars of Offence

KOLITIO KURUNAWAI on the 21st day of February 2012, at Tavuki Village, Kadavu in the Eastern Division without lawful authority, possessed 58.4 grams of Cannabis Sativa, an Illicit Drugs.

2. You waived your right to counsel. The charge was read and explained to you. You said, you understood the charge. You pleaded guilty to both counts. The summary of facts was read to you on 2nd April, 2012. You admitted the summary of facts. In other words, you admitted the particulars of offence on both counts. The court found you guilty as charged. On 3rd April, 2012, the court convicted you as charged. Your conviction cannot be faulted, since the Learned Resident Magistrate followed the proper procedure and law in convicting you.
   
3. On your sentence, the Learned Resident Magistrate relied on Meli Bavesi v The State, Criminal Appeal No. HAA 27 of 2004, High Court, Suva, which should now be disregarded, given the majority decision in Kini Sulua, Michael Ashley Chandra v The State, Criminal Appeal No. AAU 0093 of 2008 and AAU 0074 of 2008, Fiji Court of Appeal. The above Fiji Court of Appeal decision is binding on the Magistrate Court, and it must now be followed. Four categories of cases were established in the above case, and the determination in any particular case, will depend on which category the case falls within. Count no. 1 is a category 2 case, where the tariff is a sentence between 1 to 3 years imprisonment. Count no. 2 is a category 1 case, where non-custodial sentences are encouraged.
   
4. I accept the aggravating factors the Learned Resident Magistrate used in his sentencing, that is, the accused cultivates and possess illicit drugs, cannabis sativa. Drugs are a menace to society, and the fact that the accused is involved in its planting aggravates the matter. He certainly contributes to the maintenance and the prolonging of this menace in our society. I accept the Resident Magistrate's mitigating factors, that is, the accused is 26 years old, married with one son; first offender, pleaded guilty and co-operated with police.
   
5. Using my revisionary powers, on count no. 1, I start with a sentence of 2 years imprisonment. For the aggravating factors, I add 2 years, making a total of 4 years imprisonment. I deduct 2 ½ years for the mitigating factors, leaving a balance of 1 ½ years. As for count no. 2, I sentence the accused to 1 month prison. This is concurrent to the sentence in count no. 1. Total sentence is 1 ½ years imprisonment.
   
6. I sentence you to a total sentence of 1 ½ years imprisonment, with effect from 3rd April, 2012.
   

Salesi Temo
JUDGE

Solicitor for State : Office of Director of Public Prosecution, Suva
Solicitor for Accused : In Person