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Tuikoro v State [2024] FJHC 193; HAA19.2023 (28 March 2024)

IN THE HIGH COURT OF FIJI AT SUVA
In the matter of an appeal under section 246(1) of the Criminal Procedure Act 2009.
[APPELLATE JURISDICTION]


CASE NO: HAA. 19 of 2023
[Suva Magistrate’s Court Criminal. Case No. CF 929 of 2019]


JOSATEKI TUIKORO
APPELLANT


Vs.


STATE
RESPONDENT


Counsel : Appellant In Person
Mr. H. Nofaga for the Respondent


Hearing on : 26th October, 2023
Judgment on : 28th March, 2024


APPEAL JUDGMENT


Introduction

  1. The Appellant is appealing against his conviction and sentence of 32 months (i.e. 2 years & 8 months) imprisonment for the following counts:

COUNT ONE

Statement of Offence

FOUND IN POSSESSION OF ILLICIT DRUGS: Contrary to section 5(a) of the Illicit Drugs Control Act 2004.


Particulars of Offence

JOSATEKI TUIKORO, on the 18th day of June, 2019 in the Central Division, without lawful authority had in possession 4.02grams of Indian hemp leaves botanically known as Cannabis Sativa.


COUNT TWO

Statement of Offence

FOUND IN POSSESSION OF ILLICIT DRUGS: Contrary to section 5(a) of the Illicit Drugs Control Act 2004.


Particulars of Offence

JOSATEKI TUIKORO, on the 18th day of June, 2019 in the Central Division, without lawful authority had in your possession 0.18grams of white crystals known as Methamphetamine an Illicit Drugs.


  1. The learned Magistrate convicted the Appellant on 29 June 2022, and awarded the custodial term of 32 months on 25 July 2022.
  2. The Appellant then lodged his petition of appeal on 25 September 2022 which is about 34 days out of time; however, the State as respondent does not object to time being enlarged for good cause, thus enabling the petition of appeal to be considered by this Court exercising its appellate jurisdiction pursuant to section 256 of the Criminal Procedure Act 2009.
  3. The appeal hearing was held on 26 October 2023, and both parties were provided the opportunity to present their respective arguments.
  4. This is the Court’s judgment on the Appellant’s appeal against conviction and sentence.

Appeal against conviction

  1. In appealing against conviction, the Appellant presented the following grounds:
  2. Having perused the relevant record of the Magistrate’s Court at Suva and the parties submissions, I find that grounds (i), (iii) and (iv) noted above are without any merit and therefore dismissed.
  3. At trial, the prosecution called a total of six (6) witnesses, and I find that the learned Magistrate did not err in law nor in fact when making these findings:
    1. The prosecution bears the legal burden of proving each and every element of the offence in the charge beyond reasonable doubt;
    2. PC Eroni Kitou (PW1) and SC Apenisa Soronakadavu (PW2) had properly identified the Appellant as the person who had dropped the clear plastic bag containing 11 sachets of dried leaves and two clear plastics containing crystals believed to be illicit drugs;
    3. The chain of custody, though not disputed by the Appellant, was proper in terms of PC Eroni Kitou (PW1) having handed over the plastic bag dropped by the Appellant containing dried leaves and crystal like substance to PC Savenaca Tora (PW3) at the Nabua Police Station, and the latter submitting the same for testing and received it after testing, and then handed it over to WSC Limiva Vue (PW4) the Crime Exhibits Writer at the said station for safekeeping.
    4. Accepting the findings of Miliana Werebauinona (PW6) the Principal Scientific Officer confirming that the dried leaves were Cannabis Sativa with a total weight of 4.02 grams, and the crystal like substance was Methamphetamine weighing 0.18 grams. The relevant Prosecutions exhibits are marked PE1 – Substance with job reference number 219769, PE2 – Analysis Report dated 19 June 2019 and PE3 – Document containing the details of the Test.
    5. Having weighed the testimonies and evidence of the Prosecution and Appellant, the learned Magistrate neither erred in law nor in fact when placing more weight on the Prosecution over that of the Appellant to convict the Appellant of the two counts of the offence of Found in possession of illicit drugs contrary to section 5 of the Illicit Drugs Control Act 2004.

On such basis, I find that appeal grounds (ii) and (v) of the Appellant’s petition are without any merit and therefore dismissed.


Appeal against sentence

  1. In appealing against the sentence of imprisonment of 32 months with a mandatory non parole period of 18 months, the Appellant presented the following grounds:
  2. The Appellant was given the opportunity to submit facts in mitigation as per paragraph 31 of the learned Magistrate’s Judgment dated 29 June 2022. On that basis I find that the Appellant’s ground (iii) on sentence is without any merit and therefore dismissed.
  3. On 25 July 2022 the learned Magistrate sentenced the Appellant as follows as per the sentencing record:

21. In summary, your final sentence shall be as follows:


  1. First Count - Imprisonment term of 30 months
  2. Second Count – Imprisonment term of 2 months
  1. These sentences are consecutive.
  1. Aggregate sentence – Imprisonment term of 32 months.

22. As per section 18(1) of the Sentencing and Penalties Act, taking into consideration the overall circumstances of the case, I order a non-parole period of 18 months. Thus, you shall serve an imprisonment term of 18 months before you are eligible for parole.


  1. In Keni Dakuidreketi v FICAC [2018] FJSC 4; CAV0014.2017 (26 April 2018), Justice Saleem Marsoof of the Supreme Court of Fiji noted at paragraphs 68-71:

[68] the learned judge has given consideration to the theories involved in the imposition of consecutive sentences as stated by Pathik J in Visa Waga v The State [2003] FJHC 138 (23 September 2003) that, “the power to order sentences to run concurrently is subject to two major limiting principles, which may be called the “one transaction rule” and the “totality principle” (Thomas; principles of sentencing 2nd ed pg.53). It does not mean that consecutive sentences cannot be imposed, so long as the overall sentence is not unduly harsh and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of the aggravating features (Regina v Johnson, the times 22 may 1995).

[69] the totality principle basically means that when a court passes a sentence with a number of consecutive sentences, it should review the aggregate or the totality of the sentences and consider whether the “total” is just appropriate when considering the “offences” as a whole. As Jiten Singh J said in Namma v The State [2002] FJHC 171 (6 September 2002), the application of this principle does not mean that there is judicial conduct offering for “multiple offending” or encourages offenders to continue offending, after a serious crime, with the impression that there is little to lose. It must always be made clear that the more the number of crimes and the more the gravity of those crimes, the longer the sentence is to be recorded.

[70] the totality principle is that consecutive sentences should not be such as to result in an aggregate term wholly out of proportion to the gravity of the offences viewed as a whole (r v Bradley [1979] NZCA 33; (1979) 2 NZLR 262 at 263). When a judge is faced with the task of sentencing for multiple offences, as an initial step he is required to identify the appropriate sentence for each offence and then as the final step, to achieve a total sentence appropriate to the overall culpability of the accused (HKSAR v Ngai Yiu Ching [2011] 5 HLRD 690, par 13).

[71] where multiple offences are committed, the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence, while at the same time resulting in a total sentence which, so far as possible, accurately reflects the totality of criminality comprised of the totality of offences. This exercise involves a significant measure of discretion and accumulation of individual sentences according to the particular circumstances of each case (Nguyen v the queen [2016] HCA 17; 256 CLR 656, para 64)


  1. Section 22(1) of the Sentencing and Penalties Act 2009 state, ‘[s]ubject to subsection (2), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment’.
  2. When reading section 22 entirely i.e. ss.22(1) – (6) of the Sentencing and Penalties Act 2009, it is clear that apart from the exceptions provided under section 22, the sentencing court must rely on ‘exceptional circumstance(s)’ as justification for the imposition of a consecutive custodial term.
  3. Based on the said Supreme Court decision in Keni Dakuidreketi v FICAC read in conjunction with section 22 of the Sentencing and Penalties Act 2009, the question then, with regard to this appeal on sentence, is whether the learned Magistrate had erred in light of the totality principle of sentencing when imposing the consecutive custodial term of 32 months for the two counts of the offence of Found in possession of illicit drugs contrary to section 5 of the Illicit Drugs Control Act 2004.
  4. Having carefully perused the sentencing record including the aforesaid authorities, I find that the learned Magistrate failed to provide justification by manner of exceptional circumstance(s) to justify the imposition of the consecutive imprisonment term of 32 months. The State also concedes this particular error of law. On that basis I therefore uphold the Appellant’s second ground of appeal to the effect that the learned Magistrate had ignored and contravened the totality principle of sentencing.
  5. Notwithstanding the contravention of the totality principle of sentencing in this instant, the next question is whether the sentence is harsh and excessive. This compels one to consider the legitimacy of the sentences for count 1 and count 2 respectively.

Count 1 Sentence – Unlawful possession of Cannabis Sativa

  1. The Fiji Court of Appeal in Kini Sulua & Anor v State FJCA 33; AAU0093.2008; [2012] FJLawRp 74; [1961] VicRp 57; (2012) 2 FLR 111 (31 May 2012) set the guideline sentence for unlawful possession of the illicit drugs namely Cannabis Sativa, and summarised accordingly by the Court at paragraph 115:

115. In summary, the four (4) categories are as follows:

(i) Category 1: possession of 0 to 100 grams of cannabis sativa – a non-custodial sentence to be given, for example, fines, community service, counselling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short sharp prison sentence be considered.

(ii) Category 2: possession of 100 to 1000 grams of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with those possessing below 500 grams, being sentenced to less than 2 years, and those possessing more than 500 grams, be sentenced to more than 2 years imprisonment.

(iii) Category 3: possession 1000 to 4000 grams of cannabis sativa. Tariff should be a sentence between 3 to 7 years imprisonment, with those possessing less than 2500 grams, to be sentenced to less than 4 years imprisonment, and those possessing more than 2500 grams, be sentenced to more than 4 years.

(iv) Category 4: possessing 4000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment.


  1. The Appellant was convicted of being in possession of 4.02 grams of Cannabis Sativa thus falling within Category 1 of sentence, that is, ‘possession of 0 to 100 grams of cannabis sativa – a non-custodial sentence to be given, for example, fines, community service, counselling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short sharp prison sentence be considered’.
  2. The learned Magistrate at paragraph 17 of his sentencing remarks noted that he did not find any aggravating factors involved in this case.
  3. Based on the FCA decision in Kini Sulua and the fact that the learned Magistrate did not find any aggravating factor and in the absence of any pertinent justification for the imposition of a custodial term, I find that the learned Magistrate had erred in terms of awarding the 30 months imprisonment term for count 1 which in effect is harsh and excessive, thus pursuant to section 256(3) of the Criminal Procedure Act 2009 quash the said sentence passed by the learned Magistrate and make no substitution as to sentence.

Count 2 Sentence – Unlawful possession of Methamphetamine

  1. The learned Magistrate gave the custodial term of 2 months for count 2 on the unlawful possession of 0.18 grams of the illicit drug namely Methamphetamine.
  2. In terms of sentencing guideline relative to count 2, the learned Magistrate referred to a number of case authorities including Abourizk v State [2019] FJCA 98; AAU0054.2016 (7 June 2019) and State v John Geoffrey Nikolic [2019] FJHC 167; HAC115.2018 (8 March 2019).
  3. In Ainars Kreimanis v State [2023] FJSC 19; CAV13.2020 (29 June 2023), the Supreme Court of Fiji held at paragraphs 3 - 4 that the sentencing tariff guideline for hard drugs pronounced in Abourizk v State (FCA) remains effective despite the quashing of the conviction in that case. The tariff are noted as follows:

Category 01: Up to 5g – 2 ½ years to 4 ½ years imprisonment

Category 02: More than 5g up to 250g – 9 years to 16 years imprisonment

Category 03: More than 500g up to 1kg – 15 years to 22 years imprisonment

Category 04: More than 1kg – 20 years to life imprisonment


  1. Having considered these sentencing authorities, the learned Magistrate held that Category 1 applies in this instant given the conviction for count 2, that is, found in possession of 0.18 grams of the illicit drug namely Methamphetamine.
  2. The learned Magistrate found that there were no aggravating circumstances and weighing the mitigating factors then arrived at the custodial term of 2 months which I find neither harsh nor excessive and uphold it accordingly.

Orders of the Court

  1. Based on the reasons herein, I find as follows:
  2. If dissatisfied with this decision, the Appellant is at liberty to appeal to the Fiji Court of Appeal within 30 days hereon.

..........................................................
Hon. Justice Pita Bulamainaivalu
PUISNE JUDGE


At Suva
28 March 2024


Solicitors
Appellant In Person.
Office of the Director of Public Prosecutions for the Respondent.

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