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Tuinasau v State [2022] FJHC 153; HAA16.2021 (1 April 2022)

IN THE HIGH COURT OF FIJI

AT LABASA

[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO. HAA 16 OF 2021

BETWEEN : JOSATEKI TUINASAU

AND : STATE

Counsel : Mr P Gade for the Appellant

Ms L Latu for the State

Date of Hearing : 31 March 2022

Date of Judgment : 01 April 2022

JUDGMENT

[1] Thellant appearppeared in the Magistrates’ Court at Savusavu and pleaded guilty to charges of unlawful possession and cultivation of marijuana at Bagasau, Crove. The total weight of the marijuana found in possessionssion was 211.6 grams. The total number of marijuana plants cultivated were 43.

[2] August 2021, t21, the appellant was sentenced to a total term of 9 years imprisonment for the two offences.

[3] is an appeal agal against sentence only. The only complaint is that the learned magistrate erred in law and fact when he failed to take into consideration the appellant’s guilty plea.

[4] It is trite law that an appellate court will only disturb a sentence on appeal if there is an error in the exercise of the sentencing discretion (Naisua v State [2013] FJSC 14; CAV0010.2013 (20 November 2013)).

[5] There is a statutory duty imposed by section 4 (2) (f) of the Sentencing and Penalties Act on a court to have regard to a guilty plea when sentencing an offender. Section 4 (2) (f) of the Sentencing and Penalties Act states:

(2) In sentencing offenders a court must have regard to —

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so.

[6] In Basa v State [2006] FJLawRp 14; [2006] FLR 112 (24 March 2006), the Court of Appeal observed at [14]:

Whenever an accused person admits his guilt by pleading guilty, the court will give some credit for that as a clear demonstration of remorse. However, the amount that will be given is not fixed and will depend on the offence charged and the circumstances of each case.

[7] The same approach to this issue was endorsed by the Court of Appeal in Mataunitoga v The State [2015] FJCA 70; AAU125 of 2013 (28 May 2015) at [18]:

In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and qualification to the guilty plea (as a matter of practice and not principle) and assess the effect of the plea on the accused by taking into account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment.

[8] Further, the Supreme Court in Wallace Wise v The State (unreported Criminal Appeal No.CAV0004/2015; 24 April 2015) observed at [15]:

That first opportunity plea was accepted as a substantial sign of remorse. Accordingly he received a substantial discount for the early plea, a long standing practice followed by sentencing courts. (per Gates CJ)

[9] In this case, the learned magistrate explained his sentencing discretion in writing using the two-tiered approach. The learned magistrate took into account that the appellant was a young and a first time offender. Further, the learned magistrate took into account that the appellant had entered an early g plea, confessed to the police and cooperated with police bice by identifying his farm where he had cultivated marijuana. The learned magistrate remarked:

‘Your early guilty plea has saved the Court and the Prosecution time and resources to run a full hearing. So full discount (1/3) to your sentence.’ (para 25]

‘Sine offencefence is prevalent, I have decided to impose a non-parole period of 5 years imprisonment. I choose 5 years because of your early guilty plea, cooperated with police, first and young oer.’ (para 32)