Criminal Law

Navigating Criminal Charges

Navigating criminal charges begins with the decision to prosecute, marking the start of a potentially daunting process. Seeking legal advice promptly is crucial. Before the initial court appearance, proactive steps can often strengthen one’s position.

Prosecution does not imply guilt; rather, it signifies sufficient evidence exists to compel attendance in court. Entities like the Fiji Police Force, FICAC, and the Office of the Director of Public Prosecutions typically determine whether charges are warranted and which offences apply. They base their decision on two main criteria: the likelihood of securing a conviction and whether prosecution serves the public interest.

Following a decision to prosecute, proceedings commonly commence either through a police station charge or a charging summons. If a person was never arrested or was released under investigation, they typically receive a charging summons detailing the offences and specifying the date and court venue for their initial appearance.

Initial Steps following Accusation

Typically, the first appearance at court will be within 3 or 4 weeks or sometimes sooner. Therefore, it is very important that legal advice is sought as soon as possible upon receipt of the charging summons.

If a person was arrested and detained at the police station, they will likely be charged if a decision to prosecute is made while they are in custody. Similarly, if they were released on bail they may be charged on their return when they are brought back into custody.

Bail Considerations for Accused Individuals

The right to bail is fundamental in Fiji’s criminal justice system. However, individuals accused of serious crimes may face initial detention and subsequent remand until trial, exacerbating the stress associated with criminal charges.

The decision to grant bail hinges on the nature of the alleged offence and the perceived risks of releasing the accused. Judges evaluate whether detention is necessary to ensure public safety, court attendance, or to uphold confidence in justice administration.

Typically, bail requires two suitable sureties who deposit cash or valuables and pledge to monitor the accused’s compliance with release conditions. The judge’s decision also considers the alleged crime’s severity and the defendant’s criminal record.

For minor or less serious offences and no prior criminal record, police may grant bail without a formal hearing, contingent on confidence in the accused’s court appearance and without requiring cash deposits. In more serious cases, where flight risk, public danger, or criminal history is a concern, bail decisions necessitate a hearing. These cases may involve a significant, refundable deposit or surety and are accompanied by specific conditions governing the accused’s movements and interactions.

A Judge or Magistrate may deny bail if there are doubts about the accused’s court appearance or concerns about public safety, potential re-offending, or witness interference. While decisions can be appealed, the process is lengthy and offers no guaranteed success.

Denial of bail may stem from a significant criminal record suggesting a likelihood of re-offending, allegations of violent crimes posing public safety risks, perceived threats to witnesses or complainants, flight risks, or doubts about the accused’s court appearance.

Typical bail conditions include prohibitions on contact with complainants or witnesses, location restrictions, reporting to police, residency requirements, or curfews. These conditions must be necessary and proportionate, and in some cases, they can be adjusted or lifted if found impractical.

It is crucial for the accused to attend all court appearances. Failure to do so without valid reasons constitutes a separate offence punishable by fines or imprisonment, underscoring the importance of legal counsel to navigate the complexities of criminal proceedings.

The start of a criminal case marks a critical juncture where defendants gain access to evidence against them and must enter a plea of guilty or not guilty. Seeking legal advice promptly ensures protection of rights, clarity on legal processes, and informed decisions based on the evidence presented.

Consequences of a Criminal Record on your future

Criminal charges are usually the beginning of one of the most challenging experiences in one’s lifetime. When facing allegations, you should consider how the criminal record will affect your life and how to minimize the impact. When you are arrested or accused of a crime, the Fiji Police Force keep a record of your charges.

Let’s explore the various ways a criminal record can impact your life.

Impact on Employment

One of the most significant impacts of a criminal record is on your current and future employment. Whether you were convicted or found innocent, any charges on your record can make it difficult to find or keep a job.

Certain jobs may be out of reach if you have a criminal record, including government jobs, finance and those involving vulnerable persons such as children, youths and the elderly. This is particularly so if you were convicted of a crime.

In the private sector, employers tend to ask applicants to consent to a background check. Most employers will reject your application if the background check reveals that you have a criminal record. If an employer asks you directly if you have ever been charged with a crime or convicted, you should answer honestly. If you have a youth record, you are allowed not to disclose it after it is closed.

Education

A criminal record can interfere with your education prospects. Most schools and universities conduct background checks on applicants, disqualifying anyone with a criminal history. This usually depends on individual school or college policies on matters of criminal records, including youth records for new college applicants.

If you have a criminal record, you may be disqualified from attending or graduating in certain programs, including medicine, security services, law, childcare-related courses and finance. Your education scholarships will also be affected.

Although some universities and programs reject applications from persons with criminal records, others do not. If you have a criminal record, there are still courses you can apply for and get accepted.

Professional licensing

To practice as a professional in some fields, including medical, financial, legal and real estate, you need to acquire an official license. The licensing boards check applicants’ backgrounds and ask them to disclose if they have any criminal charges. If you have a criminal record, your license application may be denied; if you have a license, it may be revoked. A criminal record raises questions about your ability to uphold professional codes in certain fields.

Travel Restrictions

A criminal record has far-reaching effects on your life, even outside Fiji. If you have a criminal record, you may be denied entry into certain countries. Travel restrictions usually vary per country. For example, the USA has very strict travel policies, and you may be denied entry even for minor offences. Most countries restrict travel based on criminal convictions, types of criminal offences and severity of your crimes. Check the restrictions put in place by specific countries before travelling.

Stigma and Discrimination

Discrimination against individuals with criminal records is quite prevalent. Even when you are falsely accused of a crime, such as false rape accusations, your reputation will be ruined, and you may face social stigma and discrimination for a lifetime.

Re-entry and Rehabilitation

If you are sentenced to time in prison, re-entry into society after serving your sentence can be difficult. There is a lot of stigma around persons with criminal records, particularly convicted persons that can hinder a lot of employment opportunities for you as well. With such difficulties, it becomes hard for persons with criminal records to rehabilitate themselves and leave their criminal past.

Navigating the implications of a criminal record requires awareness and strategic planning to mitigate its long-term consequences on various aspects of life.

Understanding Your Rights When Arrested and Interviewed by the Police

Being arrested can be a disorienting experience for anyone, especially when unfamiliar with police station procedures. This guide aims to clarify what happens during an arrest:

Reasons for Arrest

Police typically arrest someone to question them about an allegation in a recorded interview. However, being arrested does not imply guilt.

Upon Arrest

An arresting officer will escort you to a police station and explain the grounds for your arrest. They will inquire about your physical and mental well-being, ensuring any medical needs are addressed, including an assessment of your fitness for interview.

You will undergo a search for illegal items or evidence, and your property may be seized. You will also be informed of your rights, which include:

Notifying someone of your arrest
Access to free and independent legal advice
The right to consult the codes

You will be asked if you wish to consult with a solicitor. Seeking legal advice is a fundamental right and not an implication of guilt; it safeguards against misunderstandings during the interview process.

Consultation and Interview

Once the police are prepared to interview you, they will contact your solicitor, who will attend the station. The solicitor will receive ‘pre-interview disclosure,’ detailing the reasons for your arrest and the alleged offence. They will question the police about the evidence.

You will then have a private discussion with your solicitor. They will provide legal advice, explain potential defenses, and evaluate the evidence against you. They will also discuss your options during the interview:

Providing a full comment interview
Opting for a ‘no comment’ approach
Preparing a written statement followed by a ‘no comment’ response

After sufficient consultation with your solicitor, the interview will proceed. Your solicitor will ensure the interview is conducted fairly and lawfully. It will be recorded, and you have the right to pause for legal advice at any time.

After the Interview

Following the interview, you’ll have an opportunity to further discuss with your solicitor. The police will then decide on the next steps, which could include:

Taking no further action
Releasing you under investigation pending further inquiries
Granting bail for a future return to the station
Remanding you in custody for a court appearance the following day
Charging you and granting bail for a court appearance at a later date

Understanding your rights and seeking legal counsel when arrested are crucial steps to navigating the legal process effectively and ensuring fair treatment. This informed approach can significantly influence the outcome of criminal proceedings.

Legal Protections During Police Searches

Right to be informed: the suspect has the right to be informed of the reason for the search unless there are exceptional circumstances where immediate disclosure could jeopardize the search.
Right to be present: the suspect generally has the right to be present during the search unless there are exceptional circumstances where it would impede the search or compromise the safety of the officers.
Right to legal representation: the suspect has the right to have legal representation present during the search if they wish. They may consult with their lawyer, and if necessary, request the presence of a lawyer during the search.
Right to privacy: while the police have the authority to conduct a search, they must do so respecting the suspect’s privacy as much as possible. The search should be conducted in a manner that minimizes intrusion and respects human dignity.
Right to observe the search: the suspect generally has the right to observe the search and ensure that it is conducted fairly and in accordance with the law. They may take note of the items being seized and the areas being searched.
Right to complain: if the suspect believes that their rights have been violated during the search, they have the right to file a complaint.

It is important to note that in certain circumstances, such as when there is an immediate threat to public safety or in cases involving controlled substances, the police may have broader search powers. However, these powers are typically subject to legal limitations and should be exercised with due regard to the suspect’s rights. If you find yourself in a situation where you are being searched by the police, it is advisable to cooperate with the officers while also asserting your rights, if necessary.

Constitutional Safeguards for Suspects

Right to be informed of the reason for arrest: every person who is arrested or detained has the right to be informed promptly, in a language that they understand, of the reason for their arrest or detention.
Right to remain silent: every person who is arrested or detained has the right to remain silent and not to be compelled to make any confession or admission that could be used in evidence against them.
Right to legal representation: every person who is arrested or detained has the right to consult and be represented by a legal practitioner of their choice, and to have adequate time and facilities for consultation.
Protection against arbitrary search and entry: every person has the right to be secure against unreasonable search or entry into their person, home, or property. Searches and entries must be conducted in accordance with the law, and warrants may be required in certain circumstances.
Protection against arbitrary detention: every person who is arrested or detained has the right to be brought promptly before a court, and if the detention is unlawful, to be released.
Protection against torture, cruel, inhuman, or degrading treatment: no person shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment. This right is absolute and cannot be derogated under any circumstances.
Right to a fair trial: every person charged with an offence has the right to a fair trial within a reasonable time by an independent and impartial court.
Presumption of innocence: every person charged with an offence shall be presumed innocent until proven guilty according to law.

Understanding the legal process in Fiji, one’s rights and seeking legal counsel when accused of a crime are essential steps to ensure justice and a fair outcome in criminal cases. A well informed and legally supported accused individual is more likely to navigate the complexities of the Fijian legal system successfully.

Key Offences, Penalties and Tariffs

Property Offences

The Crimes Act includes various property-related offences, such as theft, burglary, and robbery. These offences involve crimes against property and can result in penalties ranging from fines to imprisonment. The most common property offences’ sentence tariffs and maximum penalty for imprisonment under the Crimes Act 2009 are:

Theft: section 291 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment

Tariff

for the first offence of simple theft the sentencing range should be between 2 and 9 months.
any subsequent offence should attract a penalty of at least 9 months.
theft of large sums of money and theft in breach of trust, whether the first offence or not, can attract sentences of up to three years.
regard should be had to the nature of the relationship between offender and victim.
planned thefts will attract greater sentences than opportunistic theft.

Robbery: section 310 of the Crimes Act 2009

Maximum Penalty: 15 years imprisonment

Aggravated Robbery: section 311 of the Crimes Act 2009

Maximum Penalty: 20 years imprisonment

Tariff

The guideline adopted by the Fiji Supreme Court in State v Tawake [2022] FJSC 22; CAV0025.2019 (28 April 2022) for the offence of Aggravated Robbery provides a structured approach to sentencing. The key points are:

Types of Robbery: the guideline distinguishes between simple robbery under section 310 of the Crimes Act and aggravated robbery under section 311, which involves either being in company with others or using an offensive weapon.
Adaptation from English Framework: while influenced by English guidelines, Fiji’s framework must account for its specific legal distinctions. Unlike in England, Fiji recognises two forms of aggravated robbery.
Level of Culpability: the guideline does not differentiate culpability levels but rather considers the nature of the offence itself (simple robbery vs. aggravated robbery) and the specific circumstances (such as presence of others or use of a weapon).
Level of Harm to Victim: the severity of harm to the victim is categorised as high (serious physical or psychological harm), medium (harm between high and low), or low (no or minimal harm).
Sentencing Table: once harm level is determined, the guideline provides a starting point within a sentencing range. This starting point applies universally to offenders, regardless of plea or previous convictions.

	ROBBERY (OFFENDER ALONE AND WITHOUT A WEAPON)	AGGRAVATED ROBBERY (OFFENDER EITHER WITH ANOTHER OR WITH A WEAPON)	AGGRAVATED ROBBERY (OFFENDER WITH ANOTHER AND WITH A WEAPON)
HIGH	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment	Starting point: 7 years imprisonment Sentencing range: 5-9 years imprisonment	Starting point: 9 years imprisonment Sentencing range: 6-12 years imprisonment
MEDIUM	Starting point: 3 years imprisonment Sentencing range: 1-5 years imprisonment	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment	Starting point: 7 years imprisonment Sentencing range: 5-9 years imprisonment
LOW	Starting point: 18 months imprisonment Sentencing range: 6 months – 3 years imprisonment	Starting point: 3 years imprisonment Sentencing range: 1-5 years imprisonment	Starting point: 5 years imprisonment Sentencing range: 3-7 years imprisonment

Burglary: section 312 of the Crimes Act 2009

Maximum Penalty: 13 years imprisonment

Aggravated burglary: section 313 of the Crimes Act 2009

Maximum Penalty: 17 years imprisonment

Tariff

In the case of Kumar & Another v State [2022] FJCA 164; AAU117.2019 (24 November 2022), the Fiji Court of Appeal established new sentencing guidelines for Burglary and Aggravated Burglary. The Court outlined a structured approach to categorise offences based on the harm caused or intended. This categorisation helps in determining whether an offence falls into the high, medium, or low harm category, offering judges flexibility to consider aggravating and mitigating factors when deciding on the appropriate sentencing range.

The Court determines the offence category among 1-3 using the factors given in the table below:

Category 1: Greater harm (High)
Category 2: Between greater harm and lesser harm (Medium)
Category 3: Lesser harm (Low)

Factors indicating greater harm
Theft of/damage to property causing a significant degree of loss to the victim (whether economic, commercial, sentimental or personal value)
Soiling, ransacking or vandalism of property
Restraint, detention or gratuitous degradation of the victim, which is greater than is necessary to succeed in the burglary. Occupier or victim at home or on the premises (or returns home) while offender present
Significant physical or psychological injury or other significant trauma to the victim beyond the normal inevitable consequenceburglary.
Violence used or threatened against victim, particularly the deadly nature of the weapon
Context of general public disorder

Factors indicating lesser harm
Nothing stolen or only property of very low value to the victim (whether economic, sentimental or personal). No physical or psychological injury or other significant trauma to the victim
Limited damage or disturbance to property. No violence used or threatened and a weapon is not produced

After determining the level of harm, the Court should utilise the initial sentencing point provided in the table below to arrive at a sentence within the suitable range. This starting point is applicable to all offenders, regardless of whether they plead guilty or not, and irrespective of prior convictions. In cases of exceptional severity marked by multiple harmful factors, the Court may consider adjusting the sentence upwards before further adjusting for the offender’s level of culpability and any aggravating or mitigating circumstances.

LEVEL OF HARM (CATEGORY)	BURGLARY (OFFENDER ALONE AND WITHOUT A WEAPON)	AGGRAVATED BURGLARY (OFFENDER EITHER WITH ANOTHER OR WITH A WEAPON)	AGGRAVATED BURGLARY (OFFENDER WITH ANOTHER AND WITH A WEAPON)
HIGH	Starting Point: 05 years Sentencing Range: 03–08 years	Starting Point: 07 years Sentencing Range: 05–10 years	Starting Point: 09 years Sentencing Range: 08–12 years
MEDIUM	Starting Point: 03 years Sentencing Range: 01–05 years	Starting Point: 05 years Sentencing Range: 03–08 years	Starting Point: 07 years Sentencing Range: 05–10 years
LOW	Starting Point: 01 year Sentencing Range: 06 months – 03 years	Starting Point: 03 years Sentencing Range: 01–05 years	Starting Point: 05 years Sentencing Range: 03–08 years

Violent Offences

This category covers crimes that involve physical harm or the threat of physical harm to individuals. It includes offences like assault, grievous bodily harm, and even homicide. Penalties for violent offences vary depending on the severity of the crime. The most common violent offences’ sentence tariffs and maximum penalty for imprisonment under the Crimes Act 2009 are:

Common Assault: section 274 of the Crimes Act 2009

Maximum Penalty: 1 year imprisonment

Tariff: there is no set tariff, and the sentencing is at the discretion of the Court. Fines and suspended sentences are common.

Assault causing actual bodily harm: section 275 of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment

Tariff: ranges from an absolute or conditional discharge to 12 months imprisonment.

If the offence is committed in a domestic setting, then the sentence ranges from 6 months to 18 months.

Act with intent to cause grievous harm: section 255 of the Crimes Act 2009

Maximum Penalty: life imprisonment

Tariff: between 2 years to 5 years imprisonment depending on the type of weapon used. Moreover, the more serious and permanent the injuries, the higher the sentence will be.

Serious Assaults: section 277(a) of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment

Tariff: 6-9 months imprisonment

Serious Assaults: section 277(b) of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment or term of 10 years imprisonment if the person assaults, resists or wilfully obstructs a police officer in any of the following circumstances;

he or she bites, spits on or throws at the police officer, or otherwise applies to the police officer a bodily fluid or human or animal faeces;
he or she is, or pretends to be, armed with a dangerous or offensive weapon or instrument; or
he or she causes bodily harm to the police officer

Tariff: the tariff for an offence contrary to section 277(b) is between 2 to 7 years imprisonment.

Manslaughter: section 239 and 240 of the Crimes Act 2009

Maximum Penalty: 25 years imprisonment

Tariff: ranges from a suspended sentence, where there has been a great deal of provocation, to 12 years imprisonment, where there has been minimal provocation.

Murder: section 237 of the Crimes Act 2009

Maximum Penalty: life imprisonment

Tariff: mandatory sentence of imprisonment of life. However, the sentencing court has a judicial discretion to set a minimum term to be served before pardon may be considered.

Recently, in Vuniwai v State [2024] FJCA 100; AAU176.2019 (30 May 2024), it was held that the courts can opt not to set a minimum term only in exceptional cases. If the sentencing court decides not to impose a minimum term it must give adequate reasons when exercising the discretion not to impose a minimum term i.e. imposing a ‘whole life order’. Similarly, if the court proceeds to impose a minimum term it should demonstrate as to what matters were considered in deciding to set a minimum term and when determining the length of the minimum term.

Sexual Offences

Sexual offences are covered under the Act, including rape, sexual assault, and sexual exploitation. These offences are taken very seriously, and penalties can be severe, often resulting in significant prison time. The most common sexual offences’ sentence tariffs and maximum penalty for imprisonment under the Crimes Act 2009 are:

Indecent Assault: section 212 of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment

Tariff: 1 to 4 years imprisonment

Sexual Assault: section 210 of the Crimes Act 2009

Maximum Penalty

Section 210(1): 10 years imprisonment

Section 210(2): 14 years imprisonment

Section 210(3): life imprisonment

Tariff: In State v Epeli Ratabacaca Laca [2012] FJHC 1414; HAC 252 of 2011 (14 November 2012); the Court proposed a tariff between 2 years to 8 years imprisonment for offences of Sexual Assault in terms of Section 210(1) of the Crimes Act. The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom of the range is for less serious assaults such as brushing covered breasts or buttocks. This case referred to the United Kingdom’s Legal Guidelines for sentencing for sexual assault. Those guidelines divide sexual assault offending into three categories:

Category 1 (the most serious)

Contact between the naked genitalia of the offender and naked genitalia, face or mouth of the victim.

Category 2

Contact between the naked genitalia of the offender and another part of the victim’s body;
Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;
Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between part of the offender’s body (other than the genitalia) with part of the victim’s body (other than the genitalia).

Defilement of a child under 13: section 214 of the Crimes Act 2009

Maximum Penalty

Section 214(1): life imprisonment

Section 214(2): 5 years imprisonment

Defilement of a young person between 13 and 16 years of age: section 215 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment

Tariff: the Court of Appeal in State v Chand [2023] FJCA 252; AAU75.2019 (29 November 2023) made a guideline judgment for the offence of defilement under section 215 which is summarised as follows:

Sentencing Process

Step 1: the court needs to decide the level of the offender’s responsibility by referring to the table in Step 2.

High Culpability (Category 1 & 2)

Category 1

Exploitative relationship

Offenders misuse their position of trust, authority, or control to exploit the victim.
The offender must have a significant responsibility towards the victim, on which the victim relies.
Abuse of trust can happen in many situations, like teacher and pupil, parent and child, employer and employee, advisor and client, or carer and dependent. It can also include situations like a late-night taxi driver with a lone passenger.

People in positions of authority over a child include:

Teachers
Parents or those with significant relationships with the child’s parents
Instructors in activities like sports, music, or religion
Religious officials or spiritual leaders
Health professionals or social workers
Caregivers for children with cognitive impairments
Employees in prisons, correction centers, detention centers, or children’s homes
Childcare providers for a fee
Employers of the child

Category 2

Other serious factors: These make the offence more severe.

Misuse of position to hide or commit the offence
Large age difference between offender and victim
Planned and premeditated actions
Acting with others to commit the offence
Using alcohol/drugs to facilitate the offence
Grooming the victim
Threats or violence
Recording or sharing sexual images of the victim
Targeting a particularly vulnerable child
Lying about age
Commercial exploitation
Racially or religiously aggravated
Hostility based on the victim’s sexual orientation or gender identity
Hostility based on the victim’s disability

Lower Culpability (Category B)

A consensual but unlawful sexual relationship between similarly aged individuals.
Offender is a child (13-16), juvenile, or young adult still developing physically and psychologically.
None of the high culpability factors present

Step 2

After deciding the level of responsibility (A or B), the court uses the starting points in the table to determine the sentence. This starting point applies to all offenders, regardless of plea or previous convictions. From this starting point, the sentence can be adjusted for additional factors, either aggravating or mitigating. If the case is particularly severe, it may warrant an increased sentence before considering these other factors.

Culpability	Culpability A Category 01 with one or more factors in category 02.	Culpability A Category 01 without one or more factors in category 02 or category 02 without one or more factors in category 01.	Culpability B*
Defilement of parsons between 13-16 years of age	Starting Point: 06 years Sentencing Range: 05–08 years	Starting Point: 05 years Sentencing Range: 04–08 years	Starting Point: 03 years Sentencing Range: 02–04 years (offender above 18 but young adult) Starting Point: 06 months Sentencing Range: Up to 02 years (offender under 18) *Final sentence may be fully or partially suspended if doing so achieves a sentence that is proportionate to and fits the gravity of the offending.

Rape: section 207 of the Crimes Act 2009

Maximum Penalty: life imprisonment

Tariff

Children: for child rape the tariff set by the Supreme Court in Gordon Aitcheson v State [2018] FJSC 29; CAV 0012 of 2018 (2 November 2018) is between 11 to 20 years imprisonment.

Adult: the sentencing tariff for adult rape ranges from 7 years to 15 years imprisonment.

Trafficking in persons and children

Domestic Trafficking in Children: section 117 of the Crimes Act 2009

Maximum Penalty: 25 years imprisonment

Tariff: the maximum penalty for the offence of Domestic Trafficking in Children is 25 years, indicating the severity of this crime under the Crimes Act. Although there is no specific guideline judgment for determining the tariff for this offence, in the case of State v Werelagi [2019] FJHC 1147; HAC425.2018 (5 December 2019), the Court addressed the issue of tariff, stating:

“[5] These offences are severe due to the involvement of a vulnerable child. There is no established tariff or starting point for these offences. The only comparable case is State v Raikadroka [2014] FJHC 409; HAC80.2013 (9 June 2014), where Judge Madigan suggested a range of 12 to 18 years imprisonment for similar offences. That case involved the slave trafficking of two children aged 15 and 17 years. Overseas cases are not very relevant due to different sentencing regimes or circumstances of offending.”

The Court of Appeal in Raikadroka v State [2020] FJCA 12; AAU80.2014 (27 February 2020), endorsed the 12 to 18 years tariff for Domestic Trafficking in Children as considered in State v Werelagi.

White-Collar Crimes & Offences involving Fraudulent Conduct

This category includes various financial and business-related offences, such as embezzlement, money laundering, and corporate fraud. Penalties for white-collar crimes can involve significant fines and imprisonment.

Obtaining property by deception: section 317 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment

Tariff: 2 to 5 years imprisonment with the minimum being reserved for minor spontaneous cases with little deception. The higher end of the tariff is recommended for serious, well planned and cynical operations.

Obtaining a financial advantage by deception: section 318 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment

Tariff: 2 to 5 years imprisonment

General dishonesty obtaining a gain: section 323 of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment

General dishonesty causing a loss: section 324 of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment

Tariff: the tariff for causing a loss under section 324 is from a suspended sentence to 4 years with suspended sentences to be passed for very small losses caused unwittingly. Causing a loss when proved in conjunction with a generating corruption offence will attract the higher tariff of 4 to 5 years.

Money Laundering: section 69 of the Proceeds of Crime Act 1997

Maximum Penalty: if the offender is a natural person, a fine not exceeding $120,000 or imprisonment for a term not exceeding 20 years or both or if the offender is a body corporate, a fine not exceeding $600,000.

Tariff: the Supreme Court in Shyam v The State [2022] FJSC 40; CAV0024.2019 (26 August 2022) has set the tariff between 5 to 12 years imprisonment which was also confirmed by the Court of Appeal in Naidu v State [2023] FJCA 108; AAU93.2018 (14 June 2023).

Corruption, Bribery and Abuse of Office

Bribery: section 4 of the Prevention of Bribery Act 2007

Bribery for giving assistance in regard to contracts: section 5 of the Prevention of Bribery Act 2007

Bribery for procuring withdrawal of tenders: section 6 of the Prevention of Bribery Act 2007

Bribery in relation to auctions: section 7 of the Prevention of Bribery Act 2007

Bribery of public servants by persons having dealings with public bodies: section 8 of the Prevention of Bribery Act 2007

Maximum Penalty: section 12 of the Prevention of Bribery Act 2007 provides the maximum penalty for all the bribery related offences:

General Offences (excluding section 3 offences)

On conviction on indictment:

Section 10 offence: Fine of $100,000 and imprisonment for 10 years
Section 5 or 6 offence: Fine of $500,000 and imprisonment for 10 years
Any other offence under this part: Fine of $8,000,000 and imprisonment for 7 years

On summary conviction:

Section 10 offence: Fine of $500,000 and imprisonment for 3 years
Any other offence under this part: Fine of $100,000 and imprisonment for 3 years
Additionally, the court will order the offender to pay the amount or value of any advantage received to the specified person or public body

Offences under Section 3:

On conviction: Fine of $100,000 and imprisonment for 1 year
The offender will also be ordered to pay the government the amount or value of the advantage received, as directed by the court

Additional Penalty for section 10(1)(b) Offences:

The court may order the offender to pay the government
A sum not exceeding the amount of unexplained pecuniary resources.
A sum not exceeding the value of unexplained property
This order can be enforced like a High Court civil judgment

Abuse of Office: section 139 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment. However, if the act is done or directed to be done for gain then 17 years imprisonment

Tariff: 1 year to 12 years imprisonment. In State v Bainimarama – Judgment and Sentence [2024] FJHC 278; HAA016.2024 (9 May 2024), it was stated that the court should consider the following starting point ranges based on the level of culpability and the harm caused:

	High Level of Culpability	Medium Level of Culpability	Lesser Level of Culpability
High Level of Harm/Prejudice with gain	8-12 years	6-10 years	4-8 years
Medium Level of Harm/Prejudice either with medium level gain or without gain	6-10 years	4-8 years	2-6 years
Lesser Level of harm/Prejudice either with less gain or without gain	4-8 years	2-6 years	1-4 years

To determine the level of culpability, the court could consider the following factors:

The level of contribution or influence made by the accused in the commission of the offence.
The level of authority, trust, and responsibility associated with the position held by the accused.
Whether the accused influenced or pressured others to become involved in the offence.
The nature and manner in which the offence was committed or planned.
The number of victims.
Whether the accused was involved in the offence through force, coercion, exploitation, or intimidation.
Whether the offence was not motivated by personal gain.
Whether the offence was an opportunistic “one-off” with little or no planning.
The level of harm/prejudice can be determined by considering the level of gain and the impact on the victim.

Receiving a Corrupt Benefit: section 137 of the Crimes Act 2009

Maximum Penalty: 5 years imprisonment

Tariff: there is no set tariff but courts usually pick a starting point of 30 months

Forgery Related Offences

Forgery: section 156 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment

Using forged document: section 157 of the Crimes Act 2009

Maximum Penalty: 10 years imprisonment

Tariff: 3 to 6 years imprisonment

Cybercrime

The Cybercrime Act 2021 came into force in Fiji on 14 November 2022. After its commencement, sections 336 to 346 of the Crimes Act which deal with computer offences are repealed. The Cybercrime Act 2021 deals with offences like computer hacking, identity theft and online fraud. The tariffs for offences under the Cybercrime Act 2021 are yet to be established by the courts in Fiji. However, their maximum penalties are:

Unauthorised access to computer systems: section 5 of the Cybercrime Act 2021

Maximum Penalty: in the case of an individual, a fine not exceeding $10,000 or imprisonment for a term not exceeding 5 years or both. In the case of a body corporate, a fine not exceeding $50,000.

Unauthorised interception of computer data or computer systems: section 6 of the Cybercrime Act 2021

Maximum Penalty: in the case of an individual, a fine not exceeding $50,000 or imprisonment for a term not exceeding 10 years or both and in the case of a body corporate, a fine not exceeding $100,000.

Unauthorised acts in relation to computer data or computer systems: section 7 of the Cybercrime Act 2021

Unlawful supply or possession of computer system or other device, or computer data or computer program: section 8 of the Cybercrime Act 2021

Computer related forgery: section 9 of the Cybercrime Act 2021

Maximum Penalty: in the case of an individual, a fine not exceeding $10,000 or imprisonment for a term not exceeding 5 years or both and in the case of a body corporate, a fine not exceeding $50,000.

Computer related extortion and fraud: section 10 of the Cybercrime Act 2021

Identity theft: section 11 of the Cybercrime Act 2021

Theft of telecommunication services: section 12 of the Cybercrime Act 2021

Disclosure during an investigation: section 13 of the Cybercrime Act 2021

Failure to provide assistance: section 14 of the Cybercrime Act 2021

Maximum Penalty: in the case of an individual, a fine not exceeding $5,000 or imprisonment for a term not exceeding 2 years or both and in the case of a body corporate, a fine not exceeding $50,000.

Drug Offences

The Illicit Drugs Control Act 2004 addresses drug-related offences, such as possession, trafficking, and cultivation of controlled substances. Penalties for drug offences can be substantial, including lengthy prison sentences. The most common drug offences’ sentence tariffs and maximum penalty for imprisonment under the Illicit Drugs Control Act 2004 are:

Unlawful importation and exportation: section 4 of the Illicit Drugs Control Act 2004

This offence pertains to the importation, exportation, and possession of hard drugs such as cocaine and methamphetamine.

Maximum Penalty: fine not exceeding $1 million or imprisonment for life or both

Tariff: in Ainars Kreimanis v State [2023] FJSC 19; CAV13.2020 (29 June 2023), the Supreme Court of Fiji held that the sentencing tariff guideline for hard drugs pronounced in Abourizk v State [2019] FJCA; AAU0054.2016 (7 June 2019) remains effective despite the quashing of the conviction in that case. The tariff is noted as follows:

Category 1: Up to 5g – 2 ½ years to 4 ½ years imprisonment
Category 2: More than 5g up to 250g – 9 years to 16 years imprisonment
Category 3: More than 500g up to 1kg – 15 years to 22 years imprisonment
Category 4: More than 1kg – 20 years to life imprisonment

Unlawful possession, manufacture, cultivation and supply: section 5 of the Illicit Drugs Control Act 2004

This offence pertains to the possession and cultivation of cannabis sativa/marijuana.

Maximum Penalty: a fine not exceeding $1 million or life imprisonment or both

Unlawful Possession of Cannabis Sativa/Marijuana

Tariff: the Fiji Court of Appeal in Kini Sulua & Anor v State FJCA 33; AAU0093.2008; [2012] FJLawRp 74; (31 May 2012) set the guideline sentence for unlawful possession of the illicit drugs namely Cannabis Sativa as follows:

Category 1: possession of 0 to 100 grams of cannabis sativa. Tariff should be a non-custodial sentence 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.
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.
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.
Category 4: possessing 4000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment.

Unlawful Cultivation of Cannabis Sativa/Marijuana

Tariff: in Seru v State [2023] FJCA 67; AAU115.2017 (25 May 2023), the Court of Appeal established a sentencing guideline for the cultivation of cannabis sativa/marijuana in Fiji. The court first determines the offender’s culpability (role) and the harm caused (output or potential output) using the Sentencing Table. The starting point for the sentence is based on the offender’s role and the harm category. This starting point is adjusted for case severity, aggravating, or mitigating factors. Reductions for guilty pleas, time in remand, and other principles complete the sentencing.

Culpability Roles:

Leading Role: Principal organizer, significant influence, substantial financial gain, uses business as cover.

Significant Role: Major part in operations, involves others through influence or reward, expects significant financial gain, aware of the operation’s scale.

Lesser Role: Secondary participant, limited function, coerced or naive involvement, little awareness of the operation, minimal financial gain.

Harm Categories:

Category 1: Large scale cultivation capable of producing industrial quantities for commercial use with a considerable degree of sophistication and organization. Large commercial quantities. Elaborate projects designed to last over an extensive period of time. High degree of sophistication and organization. 100 or more plants.
Category 2: Medium scale cultivation capable of producing significant quantities for commercial use i.e. with the object of deriving profits. Commercial quantities. Over 50 but less than 100 plants.
Category 3: Small scale cultivation for profits capable of producing quantities for commercial use. 10 to 50 plants (with an assumed yield of 55g per plant).
Category 4: Cultivation of small number of plants for personal use without sale to another party occurring or being intended. Less than 10 plants (with an assumed yield of 55g per plant).

Culpability/Harm	Leading Role	Significant Role	Lesser Role
Category 1	Starting point 18 years custody Category range 16 – 20 years custody	Starting point 14 years custody Category range 12 – 16 years custody	Starting point 9 years custody Category range 7 years – 12 years custody
Category 2	Starting point 14 years custody Category range 12 years – 16 years custody	Starting point 9 years Category range 7 years – 12 years custody	Starting point 5 years custody Category range 3 years – 7 years custody
Category 3	Starting point 9 years custody Category range 7 years – 12 years custody	Starting point 5 years custody Category range 3 years – 7 years custody	Starting point 18 months custody Category range 1 year – 3 years custody
Category 4	Starting point 5 years custody Category range 3 years – 7 years custody	Starting point 18 months custody Category range 1 year – 3 years custody	Starting point Category range Non-custodial – suspended sentence