Waqa v State [2013] FJCA 18; AAU0062.2011 (13 March 2013)

IN THE COURT OF APPEAL,
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU 0062 OF 2011
[On Appeal from Suva High Court Criminal
Miscellaneous Case No. HAM 063 of 2011S]

BETWEEN:

GABRIEL WAQA
APPELLANT

AND:

THE STATE
RESPONDENT

Coram: Calanchini, AP
Temo, JA
Kumararatnam, JA

Counsel: Appellant in Person
Mr. M. Korovou for Respondent

Date of Hearing: 12th February, 2013
Date of Judgment: 13th March, 2013

JUDGMENT

Calanchini, AP

1. I agree with the judgment, the reasons and proposed orders of Temo, JA.
   

Temo, JA

2. On 14th December, 2010, the appellant appeared in the Suva Magistrate Court on the following charge:
   

Statement of Offence

FOUND IN POSSESSION OF ILLICIT DRUGS: Contrary to Section 5(a) of the Illicit Drugs Control Act No. 9 of 2004.

Particulars of Offence

GABRIEL WAQA, on the 18th day of August, 2009 at Korovou Prison, Suva in the Central Division, was found in possession of 0.1 grams of Illicit Drugs namely, Indian Hemp.

3. He was unrepresented. His right to counsel was put to him. He waived the same. He preferred the "I-Taukei" language. The charge was read and explained to him. He indicated that he understood the same. He pleaded guilty to the offence. The matter was adjourned to 22nd December, 2010 for facts and sentencing.
   
4. On 22nd December, 2010, Inspector Feroz presented the prosecution's summary of facts in court. In brief, they were as follows. On 18th August, 2009, the appellant and other remand prisoners were brought to Korovou Prison, after 2.40pm. Prison Officer Inisimo Roboiliku was on duty. He became suspicious of them, and he searched them. Dried leaves wrapped in paper were found in the appellant's underwear. It was later confirmed by Koronivia Research Station to be Indian hemp weighing 0.1 and 0.3 grams.
   
5. According to the court record, the appellant admitted the above facts in court, and consequently he was found guilty as charged and convicted accordingly. At this point, it must be noted that, the prosecution did not apply to amend the charge, after the appellant admitted the same, because the facts included an extra 0.3 grams of Indian hemp, whereas the charge only mentioned 0.1 gram. So, in the interest of fairness to the appellant, I am treating the admission as an admission to possessing 0.1 gram of Indian hemp, as particularized in the charge, instead of an admission to a total of 0.4 grams, as mentioned in the summary of facts.
   
6. The record showed that the appellant then admitted seven previous convictions. However, when his record was checked during the Court of Appeal proceeding, it was found that, on 31st December, 2010, he had only four previous convictions. So, for the purpose of this proceeding, I will take it that, on the date of his sentencing, he had four previous convictions. The appellant then gave his plea in mitigation. He said, he was 21 years old, unemployed, his wife was expecting their child and he asked for forgiveness. He said, he was studying and asked for a non-custodial sentence. The matter was adjourned to 31st December, 2010 for sentencing.
   
7. The learned Resident Magistrate delivered a written decision on 31st December, 2010. He identified the maximum penalty as life imprisonment or a fine not exceeding $1,000,000, or both. He said, the tariff was a sentence between 2 to 4 years imprisonment, relying on the High Court authority of State v Tukai Taura, HAC 146 of 2008. He took 2 years as the starting point, increased the same by another 2 years for the aggravating factors, making a total of 4 years imprisonment. He made a 1 year deduction for the mitigating factors. The final sentence was 3 years imprisonment, with a non-parole period of 2 years imprisonment. He was given 28 days to appeal.
   
8. However, the appellant failed to appeal on time. On 21st March, 2011, he applied to the High Court for leave to appeal out of time. The High Court heard his application on 26th May, 2011, and later dismissed the same. His Lordship Mr. Justice Thurairaja, said as follows:

"...Considering all I don't find the applicant has a reasonable reason to enlarge the time of appeal. Further the likelihood of success the appeal is minimal. The applicant is not a 1st offender. After due consideration the court refuses to enlarge the time of the appeal. Application dismissed..."

9. The appellant was still aggrieved. On 9th June, 2011, he sought leave to appeal to the Court of Appeal, pursuant to Section 22(1) of the Court of Appeal Act, chapter 12. Section 22(1) reads as follows:
   

"...Any party to an appeal from a magistrate's court to the High Court may appeal, under this Part, against the decision of the High Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only..."

10. On 18th January, 2013, the Court of Appeal, after hearing the appellant and the State on 9th January, 2013, granted leave to the appellant to appeal against his sentence. On 12th February, 2013, the Court of Appeal heard the parties on the appeal proper, and adjourned to today for it's decision on the matter.

11. The fundamental question in this appeal is: Whether or not, the Learned Resident Magistrate was correct on the law, in sentencing the appellant to 3 years imprisonment, with a non-parole period of 2 years imprisonment, for possessing 0.1 gram of Indian hemp, on 18th August, 2009? Subject to the decision of the Supreme Court of the Republic of Fiji, the law on sentencing of those found in unlawful possession of Indian hemp had been settled by the Court of Appeal in Kini Sulua, Michael Ashley Chandra v State, Criminal Appeals No. AAU 0093 of 2008 and AAU 0074 of 2008, on 31st May, 2012. Sentencing now depended on the weight of the Indian hemp found on the accused.

12. As I said in paragraph 115 of Kini Sulua, Michael Ashley Chandra v The State (supra), there are now 4 categories:
    

"...Category 1: possession of 0 to 100 grams of cannabis sativa – a non-custodial sentence to be given, for example, fines, community service, counseling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short sharp prison sentence be considered...

Category 2: possession of 100 to 1,000 grams 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...

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

Category 4: possessing 4,000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment..."

13. Prior to the decision in Kini Sulua, Michael Ashley Chandra v The State (supra), and since the coming into force of the Illicit Drugs Control Act 2004 on 9th July, 2004, the State and accused people have been calling for a guideline judgment. The result is Kini Sulua, Michael Ashley Chandra v The State (supra). This case demonstrated the injustices of the past. Gabriel Waqa is a "small player" in the illicit drug criminal industry. The State's time, energy and resources should not be wasted on him. He is a "category 1" offender. By sentencing him to 3 years imprisonment with a non-parole period of 2 years, is unnecessarily taking up the space and resources that are destined for "category 2 and category 3" offenders. In effect, the sentence was a waste of scarce state resources.
    
14. In my view, Gabriel Waqa, had already served his sentence, when he was remanded in custody from 14th December 2010 to 31st December, 2010 – a period of 17 days. In my view, the justice of this case demanded a non-custodial sentence. Consequently, I quash Mr. Waqa's 3 years prison sentence on 31st December, 2010, as being wrong in law, and substitute the same with a conviction, and discharge, pursuant to section 44(1) of the Sentencing and Penalties Decree 2009.
    

Kumararatnam, JA

15. I agree with the judgment, reasons and proposed orders of Temo, JA.
    

Calanchini, AP

ORDERS OF THE COURT

16. The Orders of the court are:
    
    • (1) The 3 years imprisonment, with a 2 years non-parole period, imposed by the Suva Magistrate Court on 31st December, 2010, is hereby quashed; and
      
    • (2) In substitution thereof, the appellant's conviction on 22nd December, 2010 is confirmed, and he is discharged forthwith, pursuant to section 44(1) of the Sentencing and Penalties Decree 2009.
      

Hon. Justice Calanchini
Acting President Court of Appeal

Hon. Justice Temo
Justice of Appeal

Hon. Justice Kumararatnam
Justice of Appeal

Solicitors:
Appellant in Person
Director of Public Prosecutions for Respondent