The Fiji Court of Appeal has allowed leave for Orisi Tobua to appeal against his sentence of 11 years for cultivating eight kilograms of marijuana.

Tobua was charged and convicted for one count of unlawful cultivation of illicit drugs after pleading guilty and admitting to the summary of facts.

Between November 1, 2016, and March 31, 2017, at Navosa in Sigatoka, without lawful authority, Tobua cultivated 46 plants of Cannabis Sativa weighing eight kilograms.

In February 2019, Tobua was sentenced to 11 years and four-and-half month’s imprisonment with a non-parole period of nine years for the offence.

Hea filed an appeal against the sentence stating that the learned trial Judge erred in law and fact in sentencing him using the Kini Sulua guideline when the case was one on cultivation.

Acting Appeal’s Resident Judge, Justice Chandana Prematilaka said that the appellant had been dealt with under category 4 of sentencing guidelines in Sulua v State where the sentencing tariff for possession of cannabis Sativa of 4000g or above was set between 07-14 years of imprisonment.

“Some High Court judges and Magistrates apply sentencing guidelines in Sulua v State (supra) in respect of cultivation as well while some other High Court judges have suggested different sentencing regimes on the premise that there is no guideline judgment, especially for the cultivation of marijuana meaning that Sulua guidelines may not apply to cultivation and the sentences not following Sulua guidelines, have been based by and large on the number of plants and scale and purpose of cultivation.

“The State has earlier cited before this court the scale of operation measured by the number of plants (incorporating potential yield) and the role of the accused as a measure of his responsibility as the basis for possible guidelines in ‘cultivation’ cases deviating from Sulua guidelines.

“These disparities and inconsistencies have been amply highlighted in ten recent Rulings in the Court of Appeal and therefore, the same discussion need not be repeated here,” Justice Prematilaka said.

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