Ravulo v State [2022] FJHC 447; HAA006.2022 (28 July 2022)

IN THE HIGH COURT OF FIJI

AT LABASA

[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO. HAA 06 OF 2022

BETWEEN : ILIESA RAVULO

AND : STATE

Counsel : Ms K Kumar for the Appellant

Ms E Thaggard for the Respondent

Date of Hearing : 27 July 2022

Date of Judgment : 28 July 2022

JUDGMENT

1. This is an appeal against sentence only.

2. The appellant pleaded guilty to a charge of unlawful possession of 670.9g of marijuana. He was sentenced to 2 ½ years’ imprisonment. The sentence was pronounced on 30 March 2021. The notice of appeal is dated 1 March 2022. The appeal is late by 10 months.
3. However, counsel for the State concedes that there is a ground of appeal that is probably going to succeed.
4. The appellant has advanced two grounds of appeal. His first complaint is that the learned magistrate did not properly discount his guilty plea and his second complaint is that the learned magistrate did not consider suspending his sentence.
5. The Magistrates’ Court can only suspend a sentence if the term of imprisonment is 2 years or less.
6. In this case the learned magistrate referred to the case of Sulua v State [2012] FCA 33; AAU0093.2008 (31 May 2012) and identified the applicable tariff of one to three years imprisonment for the possession of 670g of marijuana. He picked 2 years as a starting point, added 12 months for the aggravating factors and deducted 3 months for an unidentified mitigating factor and a further 3 months for the appellant’s previous good character.
7. Earlier in his sentencing remarks, the learned magistrate had concluded that the appellant was genuinely remorseful as he had cooperated with the police, made full admission and entered early guilty plea. The learned magistrate said:

The court considers the mitigating factors that you cooperated with police and you are remorseful for your action by admitting to police and then pleading guilty in court.

Your early guilty plea has saved the court and the prosecution time and resources to run a full hearing. So full discount (1/3) to your sentence.

8. Although a 1/3 discount was accorded to the appellant’s guilty plea, that discount was not computed into sentence. If the learned magistrate had intended to discount the sentence by 1/3 of the final sentence, then the reduction for the guilty plea should have around 9 to 12 months. The learned magistrate only discounted the sentence for other mitigating factor (assuming the other mitigating factor was the guilty plea) by 3 months. There is an error in the exercise of sentencing discretion arising from lack of proper consideration of the appellant’s guilty plea.
9. But the learned magistrate was correct to impose a custodial sentence. The offence is prevalent in our community and the sentence must have the effect of deterrence on the offender and others.

10. Enlargement of time to appeal against sentence is allowed.

11. The sentence imposed in the Magistrates’ Court is set aside and substituted with a term of 18 months imprisonment effective from 30 March 2021.
    

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Hon. Mr. Justice Daniel Goundar

Solicitors:

Office of the Legal Aid Commission for the Appellant

Office of the Director of Public Prosecutions for the Respondent