Lovobalavu v State [2022] FJHC 48; HAA009.2021LAB (11 February 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 009 OF 2021LAB

BETWEEN: ANARE LOVOBALAVU

APPELLANT

AND: THE STATE

RESPONDENT

Counsels : Appellant in Person

Ms. L. Latu for Respondent

Hearing : 1 February, 2022
Judgment : 11 February, 2022

JUDGMENT

1. On 19 September, 2017, the appellant (accused) first appeared in the Savusavu Magistrate Court. For various reasons, the charge was not put to him until 8 July 2020. The following charge was read and explained to him:
   

Statement of Offence

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

Particulars of Offence

ANARE LOVOBALAVU on the 14^th day of September, 2017 at Savusavu, in the Northern Division, without lawful authority possessed plant materials

weighing 1,141.3 grams of INDIAN HEMP botanically known as CANNABIS SATIVA an illicit drug

.

2. The accused said, he understood the charge and he pleaded not guilty to the same. For various reasons, the hearing of the matter did not start until 26 January 2021. Four prosecution witnesses gave evidence and the prosecution closed its case the next day, that is, 27 January 2021. The matter was adjourned for various reasons. On 2 March 2021, the accused gave sworn evidence in his defence. He called no witness. The court delivered its judgment on 15 March 2021, finding that the prosecution had proven its case against the accused beyond a reasonable doubt. The court found the accused guilty as charged and convicted him accordingly.
   
3. On 7 April 2021, the court sentenced the accused to 3 years 1 month 12 days imprisonment, with a non-parole period of 2 years imprisonment.
   
4. The appellant was not happy with his above conviction and sentence. He lodged his petition of appeal on 22 April 2021, which was within time. Because he was not legally assisted with the drafting of his petition of appeal, it was very hard for the court to understand exactly what he was complaining about. It was not clear on what ground he was appealing against conviction.
   
5. During his appeal hearing on 1 February 2022, the court asked the appellant what his complaint was on conviction. He said, the prosecution’s witnesses PW1 and PW2 were lying in court. That appeared to be his only ground for appealing against conviction.
   
6. On sentence, the appellant appeared to be complaining that (1) The learned Magistrate did not properly deduct his time on remand; (2) The learned Magistrate did not make any deduction on the mitigation factors he submitted. In general, the appellant was complaining that the sentence given to him was harsh and excessive.
   
7. We will now consider his complaints. I had perused the Magistrate Court record to find out whether or not his complaints had merit. On his allegation that prosecution’s witnesses PW1 and PW2 were lying in court, the answer to that lies with the learned trial Magistrate. He or she is the sole judge of fact and law in the Magistrate Court. He or she is the one authorized by law to assess the credibility of all witnesses in a trial. He or she has the right to accept or reject witnesses’ evidence based on how credible they were. In this particular case, the learned trial Magistrate had made his decision. He had accepted the prosecution’s version of event, which meant he accepted the evidence of PW1 and PW2. The appellant’s complaint had no merit and I dismiss it accordingly.
   
8. On the appellant’s complaint on sentence, I had carefully listened to his verbal submission in court on 1 February 2022. I had also listened to the prosecution in her reply verbal submission. The amount of cannabis sativa found on the appellant was 1,141.3 grams, making the case a Category 3 case in Kini Sulua v State [2012] FJCA 33, AAU 0093/2008 (31 May 2012) guideline. The effect of Kini Sulua (supra) over the years, that is, from 31 May 2012 to 2022, was that we are witnessing the increased detection and prosecution of Category 4 type cases. When Kini Sulua (supra) was written, only two Category 4 cases were mentioned. Now in the courts, the volumes of Category 4 cases had increased. Consequently, the task for the courts was not to fill the prisons up with Category 1, 2 and 3 cases, but to fill them up with Category 4 cases. This is to assist in the fight against illicit drugs. The Prison facilities are limited. So the courts should go easy on Category 1, 2 and 3 cases. The prosecution had suggested a 2 year prison sentence, rather than the 1 ½ years suggested by the appellant, would meet the justice of this case. I agree, especially so when the appellant was a first offender.
   
9. Given the above, the appellant’s appeal against conviction is dismissed. His appeal against sentence succeeds. The Magistrate Court’s sentence of 3 years 1 month 12 days imprisonment, with a non-parole period of 2 years imprisonment from 7 April 2021 is quashed, and it is substituted with a sentence of 2 years imprisonment, with a non-parole period of 1 year, effective from 7 April 2021. I order so accordingly.
   

Salesi Temo

JUDGE

Solicitor for Appellant : In Person
Solicitor for Respondent : Office of Director of Public Prosecution, Labasa