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Davoivoi v State [2015] FJHC 520; HAA009.2015 (16 July 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA009 OF 2015

BETWEEN:

JOSESE DAVOIVOI
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Ms. D. Kumar for Respondent

Judgment: 16th July 2015

JUDGMENT

1. The appellant was charged in Magistrate's Court Nasinu with the offence of Unlawful Cultivation of Illicit Drugs contrary to section 5 (a) of the Illicit Drugs Control Act 2004. The appellant was convicted on his own plea of guilty on 12/11/2014 and was sentenced to 24 months on 09/02/2015. The appellant appealed against the sentence on the following ground.
   
1. That the learned Magistrate erred in the parity principle resultant the sentence as excessive and harsh amid the nature of the offence.
   
2. Thereafter the appellant urged additional grounds of appeal on 07/05/2015 in the High Court. They are:
   
   1. That the learned Magistrate erred in law and stated on [paragraph 6] that the minimum set tariff under this category of possession of illicit drugs of below 500 grams is less than two years imprisonment.
      
   2. That the learned Magistrate erred in law by increasing the sentence considering the aggravating factor that is very harsh and excessive.
      
   3. That the learned Magistrate failed to consider good character.
      
   4. That the learned Magistrate failed to an appropriate discount for guilty plea on 5 November 2013.
      
3. The appellant submitted that the learned Magistrate erred in law by increasing the sentence by 24 months considering the cultivation of illicit drugs was substantially high.
   
4. State counsel appearing for the respondent filed a succinct and helpful submission conceding to grounds 1 and 2 and that there is no merit in grounds of appeal 3 and 4.
   

Ground 1:

5. The learned Magistrate referred to the case of Sulua v State [2012] FJCA 33, AAU0093.2008 (31 May 2012) in her judgment. In Sulua v State, the Court of Appeal setting the guidelines for possession or suppliers of cannabis proposed the following 4 categories.
   
   • (i) Category 1: possession of 0 to 100 grams of cannabis sativa – a non-custodial sentence to be given, for example, fines, community service, counselling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short sharp prison sentence be considered.
     
   • (ii) Category 2: possession of 100 to 1,000 gram of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with those possessing below 500 grams, being sentenced to less than 2 years, and those possessing more than 500 grams, be sentenced to more than 2 years imprisonment.
     
   • (iii) Category 3: possessing 1,000 to 4,000 grams of cannabis sativa. Tariff should be a sentence between 3 to 7 years, with those possessing less than 2,500 grams, be sentenced to less than 4 years imprisonment and those possessing more than 2,500 grams, be sentenced to more than 4 years.
     
   • (iv) Category 4: possessing 4,000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment.
     
6. In the instant case the weight of the cannabis involved was 487.46 grams. Therefore the learned Magistrate correctly decided that this offence falls under the category 2 mentioned above. However the learned Magistrate in her sentencing judgment said in paragraph 6said;
   

"For your drug offending, you fall under category 2 as per guidelines set out in the case authority of Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012). The minimum set tariff under this category of possession of illicit drugs of below 500 grams is less than 2 years imprisonment."

7. In category two the tariff set in Sulua v. State is 1 – 3 years imprisonment for possession of 100 – 1000 grams of cannabis. However for possession of cannabis below 500 grams (between 100 – 500 grams) the tariff set was less than 2 years.
   
8. Therefore the learned Magistrate when she said that the minimum tariff for possession of below 500 grams is less than 2 years was not incorrect but to be more specific it's 1 year.
   

Ground No. 2:

9. The learned Magistrate in paragraph 8 and 9 of her judgment said that the cultivation of the illicit drug was substantially big and that it is not for personal use only. She considered this as an aggravating factor and increased the sentence by 24 months.
   
10. In Sulua v. State case the tariff was set for different categories considering the weight of the drugs. Therefore once you decide on the category, the weight cannot be considered again as an aggravating factor as it is already considered when deciding on the category.
    
11. In Sulua v. State Hon. Justice Temo in paragraph 117 of his judgment said:
    

"Section 5 (a) of the Illicit Drugs Control Act 2004 treated the verbs "acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug" equally. All the verbs are treated equally. In other words, all the offending verbs or offending actions are treated equally. "Supplies, possesses, manufactures and cultivates" are treated equally, and none of the offending actions are given any higher or lower standing, as far as section 5 (a) of the Illicit Drugs Control Act 2004 was concerned. It follows that the penalties applicable to possession, must also apply to the offending verbs of "acquire, supplies, produces, manufactures, cultivates, uses or administers". That is the will of Parliament, as expressed in the words of section 5 (a) of the Illicit Drugs Control Act 2004."

Therefore whether the drugs were cultivated or sold, the categories were considered on the weight of the drugs.

12. Therefore the learned Magistrate erred when she added 24 months for the quantity considering that as an aggravating factor because the quantity was taken into consideration when deciding on the category. Hence the 2nd ground of appeal succeeds.
    

Ground No. 3:

13. The appellant had 2 previous convictions. Therefore the learned Magistrate was right when she did not give a discount for previous good behaviour. Hence this ground has no merit.
    

Ground No. 4:

14. In paragraph 13 of the judgment, the learned Magistrate has given 1/3 discount for the early guilty plea which was 12 months. Therefore this ground fails.
    
15. The learned Magistrate has correctly identified the mitigating factors in paragraph 11 of the judgment.
    
16. Following the tariff set in category 2 in Sulua v. State considering the quantity of the cannabis I take 18 months as the starting point.
    
17. There are no aggravating factors to take into account. I deduct 3 months for the mitigating factors and your sentence now stands at 15 months.
    
18. For your early guilty plea I further deduct 5 months and now your sentence is 10 months imprisonment.
    
19. Your final sentence is 10 months imprisonment.
    
20. Appeal is allowed to the above extent.
    

Priyantha Fernando
JUDGE

At Suva
Appellant In Person
Office of the Director of Public Prosecutions for the Respondent