IN THE HIGH COURT OF FIJI
AT LABASA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL CASE NO. HAA20 OF 2018
(Magistrates’ Court Case No. 117 of 2018)

BETWEEN:		MANOA RADRODRO
APPELLANT
AND:			THE STATE
RESPONDENT

Counsel:	Appellant in person 
		Ms D Kumar for the Respondent

Date of Hearing:	24 July 2018
Date of Judgment:	26 July 2018

JUDGMENT

[1]	This is an appeal against sentence only.

[2]	On 7 March 2018, the appellant was charged with an offence of found in possession 	of an illicit drug contrary to section 5 (a) of the Illicit Drugs Control Act.  He pleaded 	guilty to the charge in the Magistrates’ Court at the first reasonable opportunity and 	was sentenced to 3 years’ imprisonment with a non-parole period of 2 years.

(3)	The facts were that on 1 March 2018, the police raided a vacant house in Drekeniwai, 	Cakaudrove and found a bucket containing dried leaves believed to be marijuana.  	The leaves were tested at a government lab and were confirmed to be Cannabis 	Sativa.  The total weight was 1358.6 grams.

(4)	The appellant was arrested.  Under caution, he admitted that the seized marijuana 	belonged to him.

(5)	The appellant’s main complaints are that his remand period was not taken into 	account in sentencing and that the learned Magistrate miscalculated the one-third 	discount she gave for his guilty plea.

(6)	The learned Magistrate used the two-tiered approach to give reasons for the sentence 	she imposed on the appellant. She identified the appropriate tariff of 3 to 7 years 	imprisonment based on the case of Sulua v State Cr App No AAU0093 of 2008 and 	then used a starting point of 3 years to make an adjustment to the sentence to reflect 	the mitigating and aggravating factors. The learned Magistrate said the aggravating 	factors were that using a vacant house next to his home to store the illicit drug showed 	planning and exposed his fellow villagers to a crime.

(7)	Since the appellant had entered an early guilty plea consistent with his admissions to 	police, the learned Magistrate said a discount of one-third was justified.  However, 	when calculating the discount, the learned Magistrate gave a reduction of 6 months 	for the early guilty plea.  She arrived at the final sentence as follows:

	Starting point				-	36 months
	Add Aggravating factors		-	12 months
	Deduct early guilty plea		-	6 months
	Deduct mitigating factors		-	6 months
	Final term				-	36 months (3 years imprisonment)

(8)	One-third  of  36  is 12 months  and  not  6  months.  There is a mathematical error in
 	the calculation of the discount for the appellant’s guilty plea.

(9)	Further, it is not in dispute that the appellant had been in custody on remand from 7 	March 2018 till 28 March 2018 when he was sentenced. Section 24 of the Sentencing 	and Penalties Act required the court to make an adjustment to the sentence to reflect 	the appellant’s remand period.  The learned Magistrate did not make any adjustment 	to the sentence to reflect the appellant’s remand period.

(10)	In mitigation, the appellant said he was 23 years old, single and a farmer.  He was a 	first time offender.  He was genuinely remorseful and pleaded guilty to the 	charge at the first reasonable opportunity and saved court time and resources. The 	learned Magistrate was correct to say that a one-third discount was justified for the 	early guilty plea.  The mathematical error in calculating that discount is unfortunate.  	The appellant is also entitled to a reduction in sentence to reflect his remand 	period. There are errors in the exercise of the sentencing discretion.

(11)	However, I am mindful that deterrence is the primary purpose for sentence for 	possession of a large amount of an illicit drug. Suspension is inappropriate.

(12)	The sentence imposed in the Magistrates’ Court is set aside and substituted with a 	sentence of 2 years and 5 months’ imprisonment with a non-parole period of 18 	months.

(13)	The appeal against sentence is allowed.

							…………………………….. …….
							Hon. Mr Justice Daniel Goundar

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for the Respondent