Naqiolevu v State [2022] FJHC 47; HAA035.2020LAB (11 February 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 035 OF 2020LAB

BETWEEN: JOVILISI NAQIOLEVU

APPELLANT

AND: THE STATE

RESPONDENT

Counsels : Ms. P. Mataika for Appellant

Ms. A. Vavadakua for Respondent

Hearings : 15, 17 and 19 February, 2021
Judgment : 11 February, 2022

JUDGMENT

1. On 3 December 2019, at the Savusavu Magistrate Court, the accused withdrew his right to counsel and chose to represent himself. On 2 March 2020, the following charge was read over and explained to the accused:
   

FIRST COUNT

Statement of Offence

UNLAWFUL CULTIVATION OF ILLICIT DRUGS: Contrary to Section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JOVILISI NAQIOLEVU, and another on the 8^th day of June, 2018, at Savusavu in the Northern Division without lawful authority, cultivated 445 green plants weighing 15,233.2 grams and plant materials weighing 1120.1 grams, all to the total weight of 16,353.3 grams, an illicit drug botanically known as ‘cannabis sativa’.

SECOND COUNT

Statement of Offence

UNLAWFUL POSSESSION OF ILLICIT DRUGS: Contrary to Section 5 (a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

JOVILISI NAQIOLEVU, and another on the 8^th day of June, 2018, at Savusavu in the Northern Division without lawful authority, possessed seeds weighing 6.5 grams an illicit drugs botanically known as ‘cannabis sativa’.

2. He said, he understood the charges. He then pleaded guilty to both counts. He said, he did so voluntarily. The prosecution then presented their summary of facts. Briefly, they were as follows. On 8 June 2018, at Tacilevu village, Savusavu, the police received information that the accused was in possession and was cultivating cannabis sativa. A police team was despatched to the hills where they saw a cannabis sativa farm. They saw and uprooted 445 cannabis sativa plants, ranging in height from 3 cm to 2 meters. They also saw a tent in the farm and the accused and another were found in the same. Other planting materials were seized. The plants were taken to Savusavu Police Station, where they were analyzed by a government analyst. The plants and materials were found to be cannabis sativa and weighted 16.353 kg. Seed materials weighed 6.5 grams. When caution interviewed by police the accused admitted counts no. 1 and 2.
   
3. The case then went through various adjournment because of the covid – 19 pandemic. On 9 September 2020, the prosecution summary of facts was reput to the accused, and he admitted the same voluntarily. He was found guilty as charged on both counts and convicted accordingly. The prosecution said, he was a first offender. His plea in mitigation had already been submitted on 2 March 2020. On 9 October 2020, he was sentenced to 7 years 7 months 17 days imprisonment, with a non-parole period of 6 years imprisonment, for count no. 1. On count no. 2, he was sentenced to 30 days imprisonment. The above sentences were made concurrent to each other, but consecutive to any present prison sentence.
   
4. The appellant was not happy with the sentence. He had no complaint about his conviction. He appealed against his sentence on 28 October 2020. His appeal was within time. There were only two valid grounds of appeal:

(i) That the learned Magistrate erred in law in imposing a consecutive sentence on the sentence he was then serving;

(ii) That the learned Magistrate erred in law in not deducting from his final sentence, the total time spent in remand, that is, 2 years 4 months approximately.

5. Before dealing with the sentence appeal, the question of whether or not the learned Magistrate had jurisdiction to deal with count no. 1, which involved 16.353 kilograms of cannabis sativa does arise. The answer to this problem was provided by two conflicting Court of Appeal authorities, that is, Kini Sulua and Michael Ashley Chandra v The State, Criminal Appeal No. AAU 0093 and 0074 of 2008 (31 May 2012) and The State v Saimoni Mata and Tomasi Koroituku, Criminal Appeal No. AAU 0056 of 2016 (7 March 2019). Kini Sulua (supra) said the learned Magistrate does not have jurisdiction, while Saimoni Mata (supra) said he does. The Supreme Court will have to settle the conflict in future, but the differing authorities offers Resident Magistrates a choice. As it stands, whichever choice the learned Magistrate takes, in my respectful view, is valid. So, in this case, by assuming jurisdiction to deal with the case, in count no. 1, the learned Magistrate was correct in choosing to follow Saimoni Mata (supra). He would also be correct if he choose to follow Kini Sulua (supra).
6. Back to the sentence appeal. I had perused the Magistrate Court record to find out whether or not the appellant’s complaints had merit.
   
7. On the first ground of appeal, the appellant complained that the learned Magistrate erred when he ordered that the total prison sentence of 7 years 7 months 17 days on counts no. 1 and 2, be made consecutive to the sentence he was already serving for an earlier offence. The power to impose a consecutive sentence is the prerogative of the sentencing Magistrate. The accused pleaded guilty to the offence 1 year 8 months 18 days after first call in the Magistrate Court. He took a progressive approach. In my view, to assist in his rehabilitation (section 4 (1) (d) of the Sentencing and Penalties Act 2009), I would uphold his appeal on the first ground, and order that the total sentence on counts no. 1 and 2 in this case, be made concurrent to the prison sentence he was already serving on 9 October 2020.
   
8. On the second ground of appeal, the appellant complained that his time in remand was not properly deducted from his total sentence. He is entitled to a proper deduction by virtue of section 24 of the Sentencing and Penalties Act 2009. In this case, the appellant was first called before the Savusavu Magistrate Court on 12 June 2018. He was sentenced in this case on 9 October 2020. He was remanded in custody from 12 June 2018. In paragraph 28 on page 5 of his sentencing remark, the learned Magistrate said that the appellant was serving a prison sentence from 12 July 2019, on an earlier High Court aggravated robbery matter. This meant, he was a serving prisoner from 12 July 2019 to 9 October 2020, when the sentence was delivered in this case. He was therefore a remand prisoner only from 12 June 2018 to 12 July 2019, a period of approximately 1 year 1 month. The final sentence was 7 years 7 months 17 days. Deducting 1 year 1 month for time already served would leave a balance of 6 years 6 months 17 days imprisonment. The sentence in count no. 1 should therefore be 6 years 6 months. I take the 17 days away. The sentence for count no. 2 remains the same.
   
9. Given the above, I allow the appellant’s appeal, and rule as follows:

(i) The Magistrate Court’s consecutive sentence in this case dated 9 October 2020 is set aside, and the final sentence is made concurrent to the sentence the appellant was serving on 9 October 2020;

(ii) The Magistrate Court’s sentence of 7 years 7 months 17 days on count no. 1 dated 9 October 2020 is set aside, and the sentence of 6 years 6 months with a non-parole period of 5 years imprisonment, is substituted thereof, to take effect from 9 October 2020. The sentence for count no. 2 remains the same, and this is concurrent to the sentence in count no. 1.

Salesi Temo

JUDGE

Solicitor for Appellant : Legal Aid Commission, Labasa
Solicitor for Respondent : Office of Director of Public Prosecution, Labasa