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Tawake v State [2026] FJHC 82; HAA004.2026 (20 February 2026)

IN THE HIGH COURT OF FIJI

AT SUVA

[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO. HAA 004 OF 2026

JONETANI TAWAKE

APPELLANT

V

STATE

RESPONDENT

Counsel: Appellant in Person
Mr H Nofaga for the State

Date of Hearing: 19 February 2026

Date of Judgment : 20 February 2026

JUDGMENT

Introduction

[1] The appellant pleaded guilty in the Magistrates’ Court at Suva to one count of Unlawful Possession of Illicit Drugs contrary to section 5(a) of the Illicit Drugs Control Act 2004, on the basis that on 11 November 2025 in the Central Division he had in his possession 68.6 grams of cannabis sativa.​

[2] On 11 December 2025, the learned Resident Magistrate (Mr Prasad) sentenced the appellant to a term of one year imprisonment, having classified him as a “drug pusher” and having selected a custodial starting point of one year under the guideline in Arisi Kaitani v The State [2024] FJSC 50: CAV011.2023 (29 October 2024).

[3] The appellant now seeks leave to appeal against sentence out of time, contending that the sentence is harsh and excessive and that the learned Magistrate erred in law and in fact in several respects.​

[4] The State, in detailed written submissions, properly concedes a number of the appellant’s complaints, accepts that the sentence is outside the appropriate range having regard to the Kaitani guideline, and invites this Court to quash the sentence.

Leave and enlargement of time

[5] The sentence was imposed on 11 December 2025 and the appellant’s grounds of appeal were received in the High Court on 14 January 2026, some seven days outside the 28-day time limit prescribed by section 248(1) of the Criminal Procedure Act 2009.​

[6] Under section 248(2) of the Criminal Procedure Act, this Court may entertain an appeal out of time if good cause is shown.​

[7] The Supreme Court in Kumar v State; Sinu v State [2012] FJSC17 and Rasaku v State FJSC4 has identified five convenient factors to guide the exercise of this discretion: the reason for the failure to file within time, the length of the delay, whether there is a ground of merit justifying appellate consideration, whether there is a ground that will probably succeed despite substantial delay, and any prejudice to the respondent.

[8] In the present case, the delay is short – about a week – and the application bears a date (8 January 2026) which suggests that the appellant believed his appeal to have been lodged within time.​

[9] More importantly, as will appear, there are grounds of real merit and indeed grounds which, on the State’s own analysis, are likely to succeed, and no prejudice to the respondent is identified.​

[10] Applying the approach endorsed in Kumar v State; Sinu v State, that short delays with a reasonable explanation and arguable grounds should generally be excused, I am satisfied that good cause has been shown, and I therefore enlarge time and grant leave to appeal against sentence.

Principles on Appeal Against Sentence

[11] The principles governing an appeal against sentence are not in dispute. An appellate court will interfere only if the sentencing court acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, mistook the facts, failed to take into account some relevant consideration, or if the sentence is manifestly excessive or inadequate.

[12] Those principles, drawn from Kim Nam Bae v The State AAU15 of 1998 have repeatedly been applied by the appellate courts in Fiji.

The Guideline in Kaitani

[13] The maximum penalty for unlawful possession of illicit drugs under section 5(a) of the Illicit Drugs Control Act 2004 is a fine not exceeding $1,000,000 or imprisonment for life or both.​

[14] In Kaitani v The State, the Supreme Court, acting under section 6(1) of the Sentencing and Penalties Act 2009, reviewed sentencing practice and promulgated a single guideline for unlawful possession of illicit drugs by reference to weight (the Kaitani guideline)

[15] Category 1 covers 0 grams to 1,000 grams (1 kilogram), and the Supreme Court held that like Sulua v State, a non-custodial sentence is to be given in this category, with cases being disposed of by fines, community work, counselling, discharges with warning and, in the worst cases, suspended or “short sharp” custodial sentences.

[16] The appellant’s offending, involving 68.6 grams of cannabis sativa, falls squarely within Category 1, at the very low end of the weight spectrum (less than one-tenth of the upper limit).​

Errors Identified in the Magistrate’s Approach

(a) Time Spent in Remand

[17] The appellant spent approximately 15 days on remand between 27 November 2025 (when he pleaded guilty and was remanded) and 11 December 2025 (when sentence was delivered).​

[18] Section 24 of the Sentencing and Penalties Act 2009 requires that, unless the court otherwise orders and gives reasons, any period spent in custody prior to trial shall be regarded as imprisonment already served.​

[19] In Malatolu v State [2024 FJHC 685, the High Court held that, while a sentencing court may in principle decline to deduct remand time, it must expressly say so and give reasons and that silence on the issue amounts to error.​

[20] There is nothing in the sentencing remarks indicating that the learned Magistrate took the 15 days in remand into account, nor any explanation for disregarding it.​

[21] The State properly concedes that this was an error.​

(b) Treatment of Previous Convictions

[22] The appellant’s record shows his last conviction to be on 5 March 2002, some 23 years before the present offence.​

[23] The learned Magistrate nevertheless stated that the appellant was “not a first offender” and proceeded to treat him as a “drug pusher” without clarifying how, in law, the dated convictions were relevant.​

[24] Under section 5 of the Rehabilitation of Offenders (Irrelevant Convictions) Act 1997, the rehabilitation period for an adult is 10 years, and under section 3 a conviction is “irrelevant” where the rehabilitation period has expired or where there is no direct relationship between that conviction and the matter in issue.​

[25] In Tikomainiusiladi v State [2008] FJHC 18, this Court explained that an offender may be treated as of “bad character” for sentencing only where prior convictions remain relevant, and that irrelevant or spent convictions should not be used to deny an offender the credit of good character.​

[26] Given the age of the appellant’s last conviction, and the absence of any reasoning showing its ongoing relevance, there was no proper basis to deny him the status of a first offender for sentencing purposes.​

[27] The State concedes that the learned Magistrate erred in treating the appellant as not a first offender.​

(c) Classification as “drug pusher”

[28] At paragraph 11 of the sentencing remarks the learned Magistrate classified the appellant as a “drug pusher” based solely on the discovery of 82 sachets of cannabis.​

[29] As the State points out, the summary of facts does not assert that the appellant was selling or supplying cannabis or encouraging others to use drugs. It records only possession.​

[30] The Magistrate relied on an online dictionary definition of a “drug pusher”, but such terminology is not a legal classification and cannot substitute for evidence of commercial dealing or supply.​

[31] In the absence of any factual foundation in the admitted summary of facts, characterising the appellant as a “drug pusher” and treating that as an aggravating factor was both speculative and prejudicial, and therefore an error in principle.​

(d) Starting Point and Use of the Kaitani Tariff

[32] The learned Magistrate correctly identified the Kaitani guideline, recognised that the appellant’s case fell within Category 1, and acknowledged that this category is generally to attract non-custodial sentences, except in the worst cases where a suspended or short sharp custodial term may be justified.

[33] Despite that, the Magistrate selected a starting point of one year imprisonment, enhanced it by a further one year for the “pusher” aggravating factor, and after reductions for plea and mitigation arrived at a final sentence of one year imprisonment.​

[34] In Koroivuki v State [2013] FJCA 15, this Court explained that in selecting a starting point the sentencing court must have regard only to the objective seriousness of the offence, pick the starting point from the lower or middle range of the applicable tariff, and ensure that the final sentence remains within the guideline range unless reasons are given for departing from it.

[35] Under Kaitani, Category 1 is not expressed in terms of years of imprisonment but in terms of non-custodial options, with only “worst cases” justifying suspended or short sharp custodial sentences.​

[36] The appellant’s 68.6 grams of cannabis is a small fraction of the Category 1 range and here were no aggravating features such as supply to minors, organized dealing, weapons, or violence.​

[37] In those circumstances, to select a one-year custodial starting point, effectively at a level more consistent with the lower threshold of Category 2, is inconsistent with the structure and purpose of the Kaitani guideline.

[38] The State submits, and I accept, that the starting point adopted by the Magistrate was manifestly too high for Category 1 offending at this weight.​

(e) Discounting for plea and mitigation

[39] The appellant pleaded guilty at the first available opportunity and admitted the summary of facts without contest, thereby saving court time and resources.​

[40] The Magistrate allowed a one-third reduction for the plea, but appears to have calculated that reduction on an incorrectly enhanced starting point of two years rather than on a properly chosen Category 1 starting point.​

[41] Further mitigation was recognized in a global way, but again applied to an inflated starting point and within a framework that had already misclassified the appellant as a repeat drug pusher.​

[42] In Koroicakau v The State [2006] FJSC 5, the Supreme Court cautioned that sentencing should not be treated as an arithmetical exercise. What ultimately matters is whether the final sentence is proportionate and within range.

[43] Here, because the starting point and aggravation were wrongly set, the final sentence of one year imprisonment is disproportionate and outside the appropriate range under Category 1, notwithstanding the arithmetic used.​

Overall assessment

[44] The cumulative effect of the identified errors – failure to account for remand time, misapplication of the Rehabilitation of Offenders Act, speculative classification as a “drug pusher”, and a starting point that is inconsistent with the Kaitani Category 1 guideline, demonstrates that the sentencing discretion miscarried.

[45] Independently of those errors, a one-year term of immediate imprisonment for a first-offender adult in possession of 68.6 grams of cannabis, with an early guilty plea and no proven element of supply, is manifestly excessive when measured against the Kaitani guideline.

[46] It follows that the appeal against sentence must be allowed and the sentence re-determined.​

Resentencing

[47] The offence remains serious because of the nature of cannabis and its impact on the community, and the purposes of punishment under section 4 of the Sentencing and Penalties Act, including deterrence and denunciation have a proper place in the sentencing exercise.​

[48] At the same time, the principle of proportionality requires that the sentence not exceed what is appropriate having regard to the gravity of the offence and the offender’s personal circumstances, and that deterrence not be allowed to overwhelm individual justice.

[49] I proceed on the basis that the appellant is to be treated as a person with no relevant prior convictions, that he entered an early guilty plea, that he has expressed remorse, and that he spent 15 days in remand before sentence.​

[50] Having regard to Kaitani, the offending lies at the lower end of Category 1, where non-custodial options or, at most, very short custodial terms are contemplated.

[51] However, there are features such as the packaging of the drug into multiple sachets and the quantity being above a purely residual amount, which justify a stern response and some element of immediate custody to mark the seriousness of the conduct and to deter similar offending.​

[52] Weighing all of these considerations, including the time already served since 11 December 2025, I am satisfied that a sentence of 3 months imprisonment is appropriate and proportionate.

[53] In fixing that term, I treat the time spent on remand as part of the total custodial period served, in accordance with section 24 of the Sentencing and Penalties Act.​

Orders

[54] Time to appeal is enlarged, and leave to appeal against sentence is granted.​

[55] The appeal against sentence is allowed.​

[56] The sentence of one year imprisonment imposed by the learned Resident Magistrate on 11 December 2025 is quashed.​

[57] In substitution, the appellant is sentenced to three (3) months imprisonment, effective from 11 December 2025.

.................................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for the State