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State v Mafi [2016] FJHC 489; HAR017.2012S (13 May 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION
CRIMINAL REVIEW CASE NO. HAR 017 OF 2012S

BETWEEN THE STATE
APPLICANT

AND TANIELA MAFI
RESPONDENT

Counsels : Mr. S. Vodokisolomone for Applicant
Ms. S. Fa for Respondent
Hearings : 17 March and 13 April, 2016
Judgment : 13 May, 2016

JUDGMENT

1. On 25 November 2011, in the Kadavu Magistrate Court, the respondent (accused) appeared on the following charge:
   

Statement of Offence

CULTIVATION OF ILLICIT DRUGS: Contrary to section 5(a) of Illicit Drug Control Act 2004.

Particulars of Offence

TANIELA MAFI, on the 1^st day of July, 2010 at Gasele Village, in the Eastern Division did grew and cultivated 132 plants believed to be Indian Hemp.

2. The respondent waived his right to counsel before the Learned Chief Magistrate. The charge was read and explained to the respondent. He said, he understood the charge. He then pleaded guilty to the same.
   
3. The police’s summary of facts were read to him. It basically said that he cultivated 132 cannabis sativa plants, weighing 1, 536 grams, without lawful authority, on 1 July 2010, at Gasele village, Kadavu. According to the court record, he admitted the above facts, was found guilty as charged and convicted accordingly.
   
4. He admitted his previous convictions. In the last 10 years, he had five previous drug offences convictions – three of them under the old drug offence legislation, and the last two were under the new Illicit Drugs Control Act 2004. He made his own plea in mitigation. He said, he was 43 years old, married with 2 children. He asked for forgiveness and said he will not re-offend.
   
5. The Learned Chief Magistrate then sentenced the respondent to 2 years imprisonment, suspended for 2 years from 25 November 2011. Unfortunately, the Learned Chief Magistrate was not assisted by the prosecution, by referring the court to the authorities mentioned in paragraph 124 of Kini Sulua, Michael Ashley Chandra v The State, Criminal Appeal No. AAU 0093 and AAU 0074 of 2008, Court of Appeal, especially category 3 of Appendix 1. The authorities in category 3 of Appendix 1 already existed on 25 November 2011, and they set a tariff between 3 to 6 years imprisonment. Those tariff should have been applied by the Learned Chief Magistrate, as a matter of precedent.
   
6. However, as is common with most courts, especially so in the Magistrate Courts, prosecuting counsels and/or prosecuting police officers sometimes do not alert the courts to the then existing authorities. This is a case in point in this case. Magistrate Courts are summary courts and deal with countless cases each day. The prosecution and defence counsels are duty bound to put before the courts the existing authorities, at the time, to guide them when it comes to sentencing. The authorities mentioned in category 3 of Appendix 1 in paragraph 124 of Kini Sulua, Michael Ashley Chandra v The State(supra) was not put before the Learned Chief Magistrate, and consequently, he had erred in his sentencing. The court record showed he had not referred to any of the above authorities. He had not referred to any authorities. As a result, his sentence was wrong in law.
   
7. The Learned Chief Magistrate was correct in convicting the accused. However, I have to look at this case in its current context, and what the requirement of justice requires. He was sentenced to 2 years imprisonment suspended for 2 years from the 25 November 2011. In a sense, he had served his sentence. In line with the authorities existing on 25 November 2011, I was minded to sentence him to 3 years imprisonment, after taking into account the mitigating and aggravating factors.
   
8. However, given the extensive damage that cyclone Winston had done to his island in Yacata, I will not imprison him. I will not disturbed the Learned Chief Magistrate’s sentence, to enable the respondent to return to Yacata to assist in their rehabilitation. I order so accordingly.
   

Salesi Temo
JUDGE

Solicitor for the Applicant : Office of the Director of Public Prosecution, Suva.
Solicitor for the Respondent : Law Solutions, Barrister and Solicitor, Suva.