Mototabua v The State [2006] FJHC 13; HAA0057.2005 (17 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0057 OF 2005

BETWEEN:

ELIKI MOTOTABUA
Appellant

AND:

STATE
Respondent

Counsel: Appellant – In Person
Mr. P. Bulamainaivalu – for the State

Date of Hearing: 30th November, 2005
Date of Judgment: 17th January, 2006

JUDGMENT

Background

The appellant was charged, tried and convicted on one count of being found in possession of dangerous drugs, contrary to Section 8(b) and 41(2) of the Dangerous Drug Decree No.1 of 1990 as amended.

He was given a fine of $100.00. He is currently serving an imprisonment term on unrelated matters and will be released in 2010.

Particulars

The brief particulars of the offence are that on the 5^th of February 2003 at Korovou an off duty police constable (PW1) saw the appellant inside a carrier van and became suspicious as he saw the person the appellant was talking to holding a $2.00 note as though he was trying to buy something from the appellant.

This witness knew the appellant by reputation as a well known marijuana dealer in Korovou. Based on this information he formed a reasonable suspicion that the offence of drug dealing was being committed and he walked straight up to the van. He saw the appellant put something into his trousers pocket. He asked the appellant to accompany him to the police station. In the middle of that request the appellant quickly jumped out of the van and ran off. The off duty police constable gave chase.

During that chase an independent civilian witness saw the appellant throw something to the ground and this witness pointed the packets out to the off duty police constable. He picked them up and found 2 plastic bags containing 12 rolls of Indian Hemp and 4 sachets wrapped in foil.

All this happened very quickly as the constable was keen to continue his pursuit of the fast escaping appellant.

Assisted by the van driver the appellant was eventually arrested. He was abusive and struggled as he did not want to be arrested. However, with the assistance of another policeman the appellant was taken by the van to the police station and handed over to the desk officer. That officer also received the drug exhibits. Subsequent interviews were largely exculpatory. The appellant refused to sign charge sheets. He was charged and processed.

The plastic packets he threw away during the course of his pursuit were examined by the Government Analyst. He confirmed that there were 12 rolls and 4 sachets contained inside the plastic weighing 11.5 grams. The material was positively identified as Indian Hemp.

The Appeal

The appellant filed written submissions and emphasized from those submissions that:

(a) The testimony of the civilian witness (PW2) who saw him throw parcels during his pursuit was not reliable and should have been rejected by the learned Magistrate.

(b) In his apprehension arrest, search, and processing were in breach of his constitutional rights pursuant to Section 26, 27(1), 28 and 29(1) of the Constitutional Amendment Act 1997.

(c) That the learned Magistrate fell into error as he failed to assess the evidence and facts of the case against the requisite standard of proof.

(d) That the entire case was flawed as the learned Magistrate considered his bad character as part of the Prosecution Evidence.

Beyond saying that he was wrongly convicted he does not pursue an appeal against sentence.

Discussion of Appeal
Vasenai Mataitoga (PW2 refer to pages 18 to 22 of the Court record)

In evidence this witness said she saw the appellant about 8 metres away from her throw a plastic bag to the ground while he was being chased by the off duty police constable. She said she told the constable about this and that the officer then went and recovered the material. In cross-examination she maintained her testimony.

The learned Magistrate as both a trier of fact and law had the right to choose whether he would believe this witness. He analyzed her evidence carefully and, in my view, correctly chose to accept what she said. I dismiss this ground of appeal.

Breach of Constitutional Rights

This ground of appeal concerns the appellant’s plea that he should enjoy the fullest protection under Section 26 of the Constitution to be secure against unreasonable search and seizure of property. This Constitutional Right is a qualified and limited one. Any civilian and that includes an off duty special constable has a right to arrest without warrant any person suspected of committing a criminal offence such as drug peddling.

That right is described in Sections 21(a) – (d) and 24 of the Criminal Procedure Code, Cap. 17 and Section 42 of the Dangerous Drugs Act.

PW1 saw the appellant acting suspiciously. He inferred from his actions that he was trying to sell something. He placed that information alongside his own knowledge that the appellant is a well known peddler of drugs in the Korovou area. He was in the process of exercising his discretionary duty under Section 21(a) – (d) and 24 of the Criminal Procedure Code and Section 42 of the Dangerous Drugs Act when the appellant ran off.

I find that given these circumstances PW1 was authorized to approach, enquire and arrest the appellant as he formed a reasonable suspicion that the appellant was drug peddling. That discretionary duty was reinforced when in the course of a hot pursuit he discovered the two plastic bags containing a substance that obviously looked like Indian Hemp. In my view this arrest was commendable and the search and seizure of materials subsequently unremarkable.

These issues were clearly addressed by the learned Magistrate in a well reasoned judgment at pages 49 to 50 of the Court record. The judge was not wrong in principle. He made no error of law. I dismiss this ground of appeal.

Evidence of Bad Character

This submission concerns the evidence of prosecution witness 1 contained at page 10 of the record that “Eliki is a well known dealer in my district. That was why I suspected a deal was going on”. It was said that this was evidence of bad character and should not have been accepted by the learned Magistrate. It is argued that as it was specifically not rejected by the learned Magistrate there is a risk that it infected his judgment which in turn makes the entire decision amenable to appeal.

I completely reject that submission. It is clear that this particular piece of evidence by PW1 was simply part of the res gestae concerning the grounds upon which he formed a reasonable suspicion that an offence had been committed. It is not relied on by the learned Magistrate in any other way in his judgment. This ground of the appeal is dismissed.

Failure to apply the correct Standard of Proof

The learned Magistrate reminded himself of the onus and burden of proof. The well reasoned and constructed judgment is proper. This ground of the appeal is dismissed.

Conviction Appeal Conclusion

Accordingly I find:

1. That there was sufficient evidence to prove the appellant’s guilt beyond reasonable doubt.
   
2. The evidence of bad character did not influence the judgment in any way or effect the ultimate conviction.
   
3. The court exercised a proper and reasoned discretion in accepting the evidence of Prosecution Witness 2.
   
4. The enquiry, arrests, search and seizure were all exercised well within the appellant’s Constitutional rights. The off duty special constable (PW1) had ample authority under Sections 21(a) – (d) and 24 of the Criminal Procedure and Section 42 of the Dangerous Drugs Act to act in the way that he did.
6. The appeal against conviction is dismissed.
   

State’s Application to Increase Sentence

Learned State’s counsel in the course of his submissions observed that the sentence imposed on the appellant was manifestly lenient. He made an application to increase the sentence.

Before the appeal commenced the appellant was warned of the risks he took in pursuing his appeal. As he was unrepresented I took care to explain to him the risks he took in pursuing his appeal that the State may apply to increase sentence if a conviction appeal was dismissed.

The appellant is currently serving a 6-year term for wrongful confinement and rape and is due to be released in 2010.

The State by reference to two tariff decisions (Sekonaia Yabaki v The State, Criminal Appeal No. HAA0025 of 2005 and Meli Bavesi v The State, Criminal Appeal No. HAA0027 of 2004) submit that a proper sentence for someone clearly engaged in drug sales is imprisonment with a starting point of between 2-4 years (see Bavesi (supra) at page 13).

In that submission counsel is correct.

I invited the appellant to make any submission he wanted or request any adjournment he needed to prepare himself to make a submission concerning this application. He elected to proceed. He merely submitted that he wanted any sentence stayed as if the penalty was increased he intended to appeal. He offered no mitigation on any increased penalty.

This type of offending can be divided into categories. The ultimate concern is not the amount of material found but the degree of the accused’s involvement in the drug supply process.

The broad three categories were defined in the New Zealand decision of The Queen v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (see Bavesi page 13). Small scale possession for a commercial purpose with the object of deriving profit coupled with small scale commercial sale must see a starting point for sentencing of between 2 to 4 years imprisonment.

I fix the lower end of the starting point scale and select 2 years.

At the time the appellant was studying and promised the Court that he would mend his ways. I take that into account as an appropriate mitigation at the time and from the starting point I deduct 6 months leaving an available sentence of 18 months imprisonment.

I consider this to be discreet offending. I keep in mind the totality principle and the fact that the appellant is a serving prisoner. In my view a separate sentence of imprisonment is called for. However, justice will be served by having it imposed from the date of the original sentence.

Conclusion

Appeal against conviction is dismissed.

State’s application for review and increase of sentence granted. The sentence in the lower court of a $100.00 fine imposed on the 29^th of December, 2003 is quashed and substituted by a sentence of 18 months imprisonment backdated with effect from the 29^th of December, 2003.

Gerard Winter
JUDGE

At Suva
17th January, 2006