Basa v State. [2012] FJHC 1299; Criminal Appeal 014.2012 (28 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No. 014 of 2012 (Labasa)

BETWEEN:

SAKIUSA BASA
Appellant

AND:

STATE
Respondent

BEFORE: Hon. Mr. Justice P.K. Madigan

Counsel: Ms S. Vaniqi for Appellant
Mr. S. Vodokisolomone for the State

Date of Hearing: 14th & 23rd August 2012

Date of Judgment: 28th August 2012

JUDGMENT

1. On the 21st June 2012 this appellant first appeared in the Magistrates Court at Savusavu charged with possession of 6.6 grams of cannabis sativa, to which charge he pleaded guilty immediately. He admitted a set of facts and was convicted. He was sentenced on the same day to 10 months imprisonment, a term that was to run consecutively to a term he is serving for escape from lawful custody.

2. The facts admitted were as follows:

"A police constable was on duty in Savusavu town. He was given information that the appellant was carrying drugs. The PC stopped the appellant and searched him. During the search the PC noticed that the appellant was squeezing his left hand. When told to open his hand there was revealed a small parcel containing dried leaves. The appellant was arrested and escorted to the Police Station where he was interviewed under caution. The Government Chemist subsequently confirmed that the dried leaves were cannabis sativa weighting 6.6 grams."

3. In his reasons for sentence, the learned Magistrate noted that the appellant was 32 years old, married and looking after his grandmother. He was said to be the leader of his Village Youth Group. He was remorseful and had pleaded guilty. The Magistrate then said that he was found to have had $600 on his person when searched and therefore deduced that the appellant was selling the marijuana. He had 16 "live" previous convictions but none for a drug offence.

4. The Magistrate then went on to consider the categories of drug offending set out in Bavesi [2007] FJHC 93 and again referring to the $600 which "suggested commercial involvement" took a starting point of 12 months before adjusting the sentence for mitigating and aggravating factors, to arrive at a final sentence of 10 months which he made consecutive to a term the appellant is serving for escape.

5. The learned Magistrate unfortunately fell into error along the way. First, he allowed the matter of the $600 to unfairly prejudice the accused. There was no evidence before him whatsoever either that the $600 had been found, let alone that it was proceeds of the sale of marijuana. The police prosecutor had said from the bar table that $600 had been found. Such a declaration is not evidence. On a plea of guilty the accused should be sentenced on the summary of facts alone and this amount of cash was not mentioned in the summary of facts.

6. A second lapse by the Magistrate was to rely on sentencing authorities which had by the date of his sentence been discredited. The Court of Appeal in Kini Sulua AAU93/2008 discredited the decision of Bavesi and its categories and formulated four new categories of offending. According to that Court's decision this offending of possession of 6.6 grams would be in the new category one of "small players" and that an appropriate sentence would be a non custodial penalty. Such a decision is in accordance with this Court's decision in Mesulame Koroi HAR002 of 2012.

7. The decision in Koroi was delivered on 20 April 2012 and the Court of Appeal decision on 31st May 2012, both well before the Magistrate's sentence on 21st June 2012.

8. It is incumbent on Magistrates to keep abreast of decisions of the Court of Appeal and of the High Court especially with regard to sentencing. It may have to be that a sentencing Court invite up to date sentencing submissions from prosecuting counsel to guard against a situation as unfortunate as the within case.

9. In the light of Kini Sulua (supra), a proper sentence for possession of 6.6 grams of marijuana in these circumstances would ordinarily have been a fine or a short period of community service. However given the fact that the appellant is serving a term of eight months for escape, a fine is unrealistic and community service is impossible.

10. In these circumstances especially considering the guilty plea and the very small quantity, I quash the sentence of ten months passed in the Court below. In its place I pass a new sentence of six weeks imprisonment to be served concurrently with the term he is presently serving.

11. To that extent this appeal succeeds.

Paul K. Madigan
JUDGE

At Suva
28th August 2012