Waqa v State [2013] FJCA 2; AAU62.2011 (18 January 2013)

IN THE COURT OF APPEAL
AT SUVA

CRIMINAL APPEAL AAU 62 OF 2011
(High Court HAM 63 of 2011)

BETWEEN:

GABRIEL WAQA
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini AP

Counsel : Appellant in person.
Mr M Korovou for the Respondent.

Date of Hearing : 9 January 2013
Date of Decision : 18 January 2013

DECISION

[1]. This is an application for leave to appeal against sentence. On 31 December 2010 the Appellant was sentenced to a term of three years imprisonment with a non-parole term of two years upon his being convicted for the offence of being found in possession of an illicit drug contrary to section 5 (a) of the Illicit Drugs Act 1994. By notice filed on 21 March 2011 the Appellant applied to the High Court for leave to appeal out of time. The application was almost two months late. On 26 May 2011 the learned High Court Judge disallowed the application for leave to file an appeal out of time and dismissed the appeal.

[2]. By notice dated 8 June and filed on 9 June 2011 the Appellant now seeks leave to appeal to this Court under section 22 of the Court of Appeal Act Cap 12 (the Act). The notice of appeal (i.e. the application for leave) has been filed within the time limit prescribed by section 26 of the Act. The Appellant subsequently filed written submissions on 8 August and 24 October 2012. The Respondent filed written submissions on 8 January 2013.

[3]. The background facts, which appear not to be in dispute, may be stated briefly. The Appellant, along with four others, was brought to the Korovou remand prison on 18 August 2008. During the course of a routine search upon arrival, he was found to be in possession of some dried leaves wrapped in paper concealed in his underwear. The dried leaves were analysed and found to be Indian Hemp weighing 0.1 and 0.3 grams respectively or a total of 0.4 grams.

[4]. The Appellant pleaded guilty on 14 December 2010 and was convicted and sentenced on 31 December 2010. The learned Magistrate, relying on the decision of the High Court in Taura v The State (HAC 146 of 2008 delivered 13 February 2009) selected 2 years imprisonment as the starting point. The learned Magistrate regarded the circumstances of the offence, i.e. being found in possession upon arrival at a correctional institution, as an aggravating factor. He also considered that the offence must have been planned. The learned Magistrate added two years for these aggravating factors and then reduced the total by one year on accounting of the mitigating factors which he found to be (a) that the Appellant was 21 years old and married, (b) that he had asked for forgiveness, (c) the early guilty plea and (d) his studies at TPAF. In arriving at the sentence the learned Magistrate had noted that the offence carries a maximum penalty of life imprisonment and/or a fine not exceeding $100,000.00.

[5]. It would appear that the learned High Court Judge had refused leave to appeal out of time and dismissed the appeal on the basis that he considered that the likelihood of success of the appeal was minimal.

[6]. The Appellant's grounds of appeal raise both the dismissal of the appeal by the learned Judge and the severity of the sentence imposed by the learned Magistrate. The Appellant claims that the learned Judge "erred in law in not granting leave to appeal out of time" when the delay was only two months. The Appellant claims that the learned Magistrate did not take into account the early guilty plea and that the sentence was severe and did not take into account the quantity of Indian Hemp in his possession which was minimal.

[7]. In order to obtain leave to appeal against sentence from a decision of the High Court exercising its appellate jurisdiction, the Appellant must establish that his appeal falls within section 22 and section 22 (1A) of the Act. In this case section 22 (1A) has no application since the High Court Judge did not impose any sentence. The application was dismissed. As a result the Appellant must establish that his grounds of appeal or at least one of them raises an arguable point on a question of law only.

[8]. In my judgment the learned High Court Judge erred in refusing leave to appeal out of time and consequently dismissing the appeal. The delay was only two months. In the State v Ramesh Patel (AAU 2 of 2002 delivered 15 November 2002) this Court, when the delay was some 26 months, stated:

"We have reached the conclusion that despite the excessive and unexplained delay, the strength of the grounds of appeal and the absence of prejudice are such that it is in the interests of justice that leave be granted to the applicant."

[9]. In my judgment had the learned High Court Judge proceeded to consider the principles he would have concluded that the grounds of appeal were such that leave to appeal out of time should have been granted.

[10]. There are three reasons why I have concluded that the Appellant should have been granted leave to appeal out of time. First, the decision in State v Taura (supra) was concerned with a quantity of 114.6 grams. In that case the illicit quantity of Indian Hemp was described as a small scale possession for a commercial purpose. It was stated in that case that the lowest starting point of 2 years should be used where sales are limited and infrequent. In this case there was no suggestion of any commercial purpose nor limited or infrequent sales. Secondly, the quantity in this case was in total less than 1 gram (0.4 gram). The quantity was insignificant to the point of being negligible and cannot in any way be equated with the circumstances that were present in the Taura case (supra).

[11]. Finally, the sentencing law in relation to possession of small quantities of illicit drugs has since been clarified by this Court in Kini Sulua and Another –v- The State (AAU 33 of 2008; 31 May 2012).

[12]. In that decision the majority of the Court (Temo and Fernando JJA) concluded that in cases where the quantity of cannabis in the possession of the accused in between 0 and 100 grams, a non-custodial sentence is to be given. A penalty such as a fine, community service, counselling or discharge with a strong warning are examples of an appropriate disposition. The majority took the view that only in the worst cases should a suspended sentence or a short sharp prison sentence be considered. It is difficult to imagine a smaller quantity than 0.4 grams of dried leaves. In my judgment, as a result of the observations that I have made, I am satisfied that the Appellant's grounds of appeal raise an arguable point on a question of law.

[13]. For all of the above reasons the Appellant is given leave to appeal to the Court of Appeal against sentence.

Hon. Justice W. D. Calanchini
Acting President