Seru v State [2020] FJCA 126; AAU115.2017 (6 August 2020)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 115 of 2017

[High Court of Labasa Criminal Case No. HAC 006 of 2016 LAB]

BETWEEN:

JONE SERU

Appellant

AND:

STATE

Respondent

Coram: Prematilaka, JA

Counsel: Mr. Fesaitu and Ms. L. Manulevu for Appellant

Dr. A. Jack for the Respondent

Date of Hearing: 05 August 2020

Date of Ruling : 06 August 2020

RULING

[1] The appellant had been charged in the High Court of Labasa on a single count of Cultivation of Illicit Drugs contrary to section 5(a) of the Illegal Drugs Control Act of 2004. The information read as follows.

Statement of Office (a)

CULTIVATION OF ILLICIT DRUGS: Contrary to section 5 (a) and Schedule 1 of the Illicit Drugs Control Act of 2004.

Particulars of Offence (b)
JONE SERU between the >st #160;day of October 20d thed the 8^th day ofuary 2012 at Savusavuusavu in the Northern Division, without lawful authority cultivated 5500 grams or 5.5 kilograms of illicit drugs namely cannabis sativ>

[2] After trir trial, on 21 July 2017 the assessors unas unanimously opined that the appellant was guilty as charged. On 24 July 2017 the appellant was convicted and sentenced on 25 July 2017 to 09 years of imprisonment subject to a non-prole period of 08 years.

[3] The appellant had signed a notice of appeal on 30 July 2017 (received by the registry on 09 August 2017) against conviction and sentence. He had filed additional grounds of appeal on 11 March 2020. Legal Aid Commission had tendered an amended notice of appeal on 27 April 2020 against conviction and sentence along with written submissions. The State had tendered its written submissions on 25 May 2020.

[4] The brief summary of facts is as follows. Between 01 October 2011 and 08 February 2012, the appellant had been allegedly cultivating cannabis sativa plants at Savusavu in a farm situated about 100 meters away from Savusavu Magistrates Court. On 08 February 2012, a police officer PC 4799 Peter Pickering (PW1) and another had come to the farm to check on its owner and saw the appellant hiding behind a tree log. PW1 had chased and arrested the appellant a little later. PW1 had called reinforcements and three other police officers arrived and all of them uprooted 20 cannabis sativa plants from the farm. The plants had been later taken to Koronivia Research Station for analysis. The Government Analyst had confirmed that the plants were cannabis sativa and weighed 5.5 kilograms. The appellant had been interviewed by police on 08 and 09 February 2012 and he had admitted the offence. The appellant remained silent at the trial. He had been tried and convicted on his confessional statement and other evidence.

[5] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds. This threshold is the same with leave to appeal applications against sentence as well.

[6] Ground of appeal:
Against Conviction

Ground One:

The Learned Trial Judge erred in law in admitting a copy of a certificate of analysis and analysis of cannabis into evidence to which:

1. The learned trial Judge had not in the absences of the assessors determined the admissibility of the copies; and
   
2. The evidence adduced had not established the test set out in R v Lobendhan (1972) 12 FLR 1.
   

Ground Two:

The Appellant is prejudice by the direction at paragraph 18 of the Summing Up that a prima facie case is found at the end of prosecution case.

Against Sentence

Ground Three – The Learned Trial Judge erred in principle in enhancing the Appellant’s sentence by considering the weight of the illicit drugs as an aggravating factor.

[7] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; (1936) 55 CLR 499 Criminal Appeal No.AAU001 Chirk King Yam v The State Criminal Appeal N0095 of 20of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appgainstence are arguablguable points under the four principles of > cas>For an timely ground ofnd of appeal against sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforeguide are as follows.

( (i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

01^stup>st ground of appeal

[8] The gist of the appellant’s complaint here is that the learned trial judge had wrongly ruled on the admissibility of the copies of Certificate of Analysis (Exhibit No.2/E2) and Analysis of Cannabis (Exhibit No.3/E3) produced by the government analyst (PW5) [as opposed to originals] in the course of the trial before the assessors (not separately without the assessors) as reflected in paragraph 27 of the summing-up and that the trial judge’s decision to admit the copies of E2 and E3 did not satisfy the requirements in settled law.

‘27. Ms. Miliakere Nawaikula (PW5) next gave evidence. She was a former government analyst working at Koronivia Research Station. PW5 hold a Master’s Degree in Applied Science from the Queensland University of Technology (1996), a Bachelor of Applied Science from the University of Tasmania (1984) and a Certificate in Botanical Identification of Cannabis from New Zealand (1992). She had been a government analyst since 1991 and had previously conducted 30 to 40 thousand cannabis sativa analysis per year. She is certainly an expert in this area. PW5 said, she did the drug analysis in this case. PW5 referred to a copy of a “certificate of analysis” and “analysis of cannabis” she filled in on 9 February 2012. She submitted the same as Prosecution Exhibit No. 2 (Certificate of Analysis) and Prosecution Exhibit No. 3 (Analysis of Cannabis). PW5 said, she received the drug samples from SC 1883 Badal Lal (PW6) at Koronivia Research Station on 9 February 2012. She said, she analyzed the drugs and found them to be cannabis sativa. It weighed 5.5 kilograms. After considering PW5’s total evidence, and in the light of previous case authorities, I declare Prosecution Exhibit No. 2 and 3, as admissible evidence, and you may consider the same in your deliberation.’

[9] In paragraph 8 of the judgment the trial judge had stated as follows.

‘8. I accept SC 1883 Badal Lal’s (PW6) evidence that he took the above cannabis sativa plants to Koronivia Research Station on 9 February 2012 for analysis by the Government Analyst Ms. Miliakere Nawaikula (PW5). I accept PW5’s evidence that the plants she analyzed were cannabis sativa and weighted 5.5 kilograms. I accept that the evidence that PW5 gave in court had proved to me beyond reasonable doubt that the copies of the “certificate of analysis” (Prosecution Exhibit No. 2) and “Analysis of Cannabis” (Prosecution Exhibit No. 3) she produced in court is a true and faithful reproduction of the original; the original had been lost and a search had not recovered the same. She was the one who wrote the original in her own handwriting and she appeared to say that her handwriting and signatures had not been tampered with. Consequently, in paragraph 27 of my summing up, I ruled Prosecution Exhibits No. 2 and 3 as admissible evidence.’

[10] The appellant argues in the light of Basto v R [1954] HCA 78; [1954] 91 CLR 628 at 640 that the admissibility of E2 and E3 should have been ruled upon in the absence of the assessors and secondly in the light of the decision in R v Lobendahn (1972) 12 FLR 1 the evidence adduced had not established the test set out in Lobendahn to enable copies of E2 and E3 to be produced.

[11] The appellant relies on the following remarks of the High Court of Australia in Basto:

‘....... The jury is not concerned with the admissibility of the evidence; that is for the judge, whose ruling is conclusive upon the jury and who for the purpose of making it must decide both the facts and the law for himself independently of the jury. Once the evidence mitted tted the only question for the jury to consider with reference to the evidence so admitted is its probative value or effe.... The admissibility of evidence is not for the jury to decide, be it dependent on fact oact or law: and voluntariness is only a test of admissibility

[12] When one cone carefully reads paragraphs 27 of the summing-up and 8 of the judgment it becomes clear that the trial judge had not alienated the decision to admit E2 and E3 to the assessors. He had determined the admissibility of both those documents and directed the assessors to consider them in their deliberations.

[13] In any event, the remarks in Basto must be considered in the context where the High Court was discussing the respective functions of the trial judge and the jury (different to the assessors in Fiji) vis-à-vis a confessional statement of the accused where its voluntariness had been challenged.

[14] On the contrary, it does not appear from the summing-up or the judgment that the appellant who had opted to waive his right to counsel had raised any objection to the admissibility of E2 and E3 despite having received them as part of disclosures prior to the commencement of the trial. Had he raised an objection at the beginning as in cases of evidence of confessions, the trial judge could have held a separate inquiry to determine the admissibility of E2 and E3. Perhaps, no one would have been aware that the original of E2 and E3 had got lost and only copies were available. That position may have come to light only when PW5 started giving evidence in the witness box. The appellant does not appear to have challenged the admissibility of copies of E2 and E3 even during the evidence of PW5. Therefore, there was no reason or opportunity for the trial judge to have embarked on a pre-trial inquiry regarding the admissibility of E2 and E3.

[15] As set out in paragraph 8 of the judgment PW5 had explained the reasons for her to produce the copies of E2 and E3 which the trial judge had accepted. The evidence of police officer Badal Lal (PW 06) had confirmed the existence of the originals of E2 and E3 which he handed over to the Crime Writer WPC Vulaono at the police station where they appear to have gone missing. In the absence of any challenge, in my view, there was substantial compliance with the requirements set out in Lobendahn as referred to in Drodroveivali v State [2005] FJCA 5; AAU0019.2003S (4 March 2005) where the Court of Appeal upheld the admission of photocopies in more or less similar circumstances to the current appeal.

‘[22] In considering the evidence of PW1, trial judge held:

“He explained that he had made photocopies of cheques by photocopy machine and put a ‘Certified True Copy of the Original’ stamps on the photocopies and placed his initials on them. These were then placed in the police investigation file. He was able to identify the photocopies by the stamp and his initial that is a sound way to identify a document. The photocopies are the true reproduction of the originals. I hold that adequate foundation has been laid for the cheques to be rendered admissible in evidence.”

[23] It was open on the evidence to come to this conclusion and admit the photocopies of the cheques. We cannot find any error in this ruling. We would dismiss this ground of appeal.’

[16] Moreover, unlike in Lobendahn and Drodroveivali as pointed out by the appellant himself section 36(1) of the Illicit Drugs Control Act has provided that ‘In any proceedings under this Act, the production of a certificate purporting to be signed by a Government analyst is prime facie evidence of the facts stated in the certificate.’

[17] In my view, the worlds ‘a certificate’ and ‘purporting’ in section 36(1) of the Illicit Drugs Control Act conveys, implies, or professes the idea of an appearance or effect of a certificate and signature by a Government analyst and therefore ‘a certificate purporting to be signed by a Government analyst’ may mean an exact copy or duplicate of the original and therefore ‘is prime facie evidence of the facts stated in the certificate.’

[18] Howevn thin this case the Government analyst gave evidence and produced the copies of E2 and E3 identifying the signature and speaking to their contents.

19] Thus, I do not think that there is a reasonable prospecospect of success of this ground of appeal.

02^nd ground of appeal

[20] The appellant argues that he had been prejudiced by the trial judge having said in paragraph 18 of the summing-up that a prima facie case was found against him at the end of the prosecution case.

‘18. On 18 July 2017, the first day of the trial proper, the information was put to the accused. He had previously waived his right to counsel and had chosen to represent himself. He pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him at the end of the prosecution’s case, wherein he was called upon to make his defence, he choose to remain silent and called no witness. That was his right.’

[21] The appellant relies on Degei v State [2019] FJCA 262; AAU157.2015 (27 November 2019) where Calanchini P as a single had remarked in reference to a similar statement by the trial judge in the summing-up as follows.

‘[9] In my view it is arguable that such a disclosure was sufficiently prejudicial to grant leave on that ground. I have some doubt as to the propriety of such a disclosure when the issue is dealt with by the judge in the absence of the assessors. It may also be argued that there is an element of pre-determination at a certain stage before all the evidence had been heard’.

[22] However, the same complaint was examined by the full court in Raqio v State [2020] FJCA 6; AAU61.2015 (27 February 2020). Nawana J. with the other two judges agreeing said

‘[32] I, accordingly, hold that there is merit in the complaint made on behalf of the appellant in the first ground of appeal. Nevertheless, I subscribe to the view that, although the learned judge had made a general reference as to the existence of a prima faci0;case, he had noad not referred to any specific contested issue in a conclusive manner as found in Smith’s casera). Hencem of opinion nion that no perceivable prejudice could have caused to the appellanellant affecting the legitimacy of the tri>.&#8/i>

[23] Nevertheless, this or similar expressions are brought up witp with such such regularity as a ground of appeal before this court that, I think, it is pertinent to remark that this type of or similar expressions referring to the trial judge’s decision that he found a prima facie case against the accused at the end of the prosecution case and therefore he decided to call upon the accused to make a defence, serve no useful purpose at all; they are unwarranted and would only taint the summing-up. Therefore, the remark ‘when a prima facie case was found against him at the end of the prosecution’s case’ or similar remarks creating a foundation for or giving rise to a complaint in appeal that it has misled or prejudiced the assessors should always be avoided. A trial judge should take care not to make expressions that would carry the risk of signalling to the assessors that the judge had already made up his mind and therefore, they also should follow suit.

[24] Therefore, there is no reasonable prospect of success in this ground of appeal.

03^rd ground of appeal

[25] The appellant argues against his sentence on the premise that the trial judge in selecting the starting point at 09 years and added 02 years for aggravating factors which included the quantity of 5.5 kg and the fact that he had cultivated cannabis sativa 100 meters away from the magistrates court.

[26] It is clear from the sentencing order that the trial judge had treated the appellant’s case under the forth category identified in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) where the tariff had been set at 07-14 years of imprisonment for possession of cannabis sativa of 4000g or above.

[27] However, there is a lurking doubt whether there had been an error of double counting (see Senilolokula v State [ 017] 100;095 o095 of 2013 2013 (14 September 2017), unwittingly though, in the light of Naikelekelevesi v State [2008] FJCA 11; AAU0061.2007 (27 June 2008), Koroivuki v State [2013] FJCA 15; AAU0018 of 2010 (05 March 2013) and Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019), for the trial judge may have already incorporated the weight of 5.5 kg in selecting the starting point of 09 years [also see Salayavi v State AAU0038 of 2017 (03 August 2020) for a detailed discussion].

[28] Nevertheless, the Court of Appeal will see whether the ultimate sentence of 09 years of imprisonment is justified in the legal framework pronounced in Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) and Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015). Also see Salayavi v State AAU0038 of 2017 (03 August 2020) for a detailed discussion. The state has submitted that regardless of any sentencing error the ultimate sentence of 09 years is justified.

[29] However, the appellant has cited State v Bati [2018] FJCA 762; HAC 04 of 2018 (21 August 2018) where a more fundamental issue on sentencing tariff relating to ‘cultivation cases’ had been highlighted. It had stated that ‘There is no guideline judgment especially for cultivation of marijuana.’ meaning that Sulua gunes may not apply to y to cultivation.

[30] Sulua was a case concerning possession; not cultivation. Although, Sulua tariff guidelines were expected apply to the the offending verbs of "acquire, ies, produces,uces, manufactures, cultivates, uses or administers" in section 5(a) of the Illicit Drugs Control Act 2004, it is clear tear that the sentencing judges have not always applied Sulua guidelines when it comes to offences involving cultivatiivation. The following are examples.

[31] In State v Matakorovatu [2017] FJHC 742; HAC355.2016 (29 September 2017) the learned trial judge had taken 07 years as the starting point for the second count on cultivation for the reasons set out in paragraphs 7-10 of the sentencing order.

‘7. In the case of Tuiv State ; [2016] FJHC 1027; HAA29.2016 (14 November 2016) this court decided to apply the following tariff for the offence of uul cultivation of illicit dcit drugs

a. The growing of a small number of plants for personal use by an offender on a non-commercial basis - 1 to 2 years imprisonment;

b.Small scale cultivation for a commercial purpose with the objective of deriving a profit - 3 to 7 years imprisonment;

c.Large scale commercial cultivation - 7 to 14 years imprisonment.

8. Cultivating up to 10 plants can be considered as non-commercial cultivation if there is no other evidence to the contrary. Cultivating more than 10 plants up to 100 plants can be considered as a small scale commercial cultivation and cultivating more than 100 plants can be considered as a large scale commercial cultivation.
   
9. With regard to the second count you have admitted that you were involved in cultivating 824 plants. Your sentence for the second count should be within the range of 7 to 14 years imprisonment as you have been engaged in large scale commercial cultivation according to the above categorisation.
   
10. I will first determine the sentence for the second count. I select 7 years imprisonment as the starting point of your sentence.’

‘11.Even though the weight of the plants was recorded as 7975.7 grams, you have been involved in cultivating 824 plants of cannaativa. The number of p of plants suggests that you have been involved in a very large scale cultivation of illicit drugs. Considering this factor I add 11 yearsour sentence. The summary of facts does not reveal any othe other aggravating factor. Your sentence now is 18 years imprisonment.’

[32] In Tuidama the High Court had decided to apply the following tariff based on the number of cannabis plants for the offence of unlawful cultivation of illicit drugs calling in aid the judgment in Meli Bavesi v State [2004] FJHC 93; HAA 0027.2004;

1. The growing of a small number of plants for personal use by an offender on a non-commercial basis - 1 to 2 years imprisonment; [Cultivating up to 10 plants]
2. Small scale cultivation for a commercial purpose with the objective of deriving a profit - 3 to 7 years imprisonment; [Cultivating more than 10 plants up to 100 plants]

c. Large scale commercial cultivation - 7 to 14 years imprisonment. [Cultivating more than 100 plants]

[33] In State v Nabenu [2018] FJHC 539; HAA10.2018 (25 June 2018) the High Court had suggested the following tariff after considering a number ovious decisions including&#ing <Tuidama;

;

1. The growing of a small number of plants (less than 9 plants with assumed yield of 40g per plant) for personal use by a first offender - non- custodial sentence or a fine at the discretion of the court.
2. Small scale cultivation (10 to 30 plants with assumed yield of 40g per plant) for a commercial purpose with the objective of deriving a profit - 1 to 3 years imprisonment, with or without a fine at the discretion of the court.

c. Medium scale commercial cultivation (30 -100 plants) - 3 to 7 years imprisonment with or without a fine at the discretion of the court.

4. Large scale cultivation capable of producing industrial quantities for commercial use (more than 100 plants) 7 - 14 years imprisonment with or without a fine at the discretion of the court.
   

[34] Nabenu ialia had equated thed the number of plants to a corresponding assumed weight. Both Tuidama and Nabenu had also coned the purpose pose of cultivation (i.e. personal or commercial) and scale of the cultivation to determine the sentence.

[35] Dibi v State [2018] FJHC 86; HAA96 (19 February 2018) had refd referred to In re Koroi [2012] FJHC 1029; HAR002-006.2012 (20 April 2012) where the following tariff for cultivation had been pronounced deviating from Sulua on the basis that Sulua did not apply to sentences involving cultivation.

‘19.] For ease of reference those tariffs as suggested by the U.K. Sentencing Council and adopted by this Court in Koroi are:

(i) Possession of up to 100 grammes or cultivation of no more than 5 plants, non custodial sentences at the discretion of the Court

(ii) Possession of 100-1000 grammes and cultivation of 5-50 plants; custodial sentences in the range of one year to six years

(iii) Possession of more than 1000 grammes and cultivation of more than 50 plants, custodial sentences of six years or more
(iv) Possession of very large quantities (5kg or more) custodial sentences in the range of 10 to 15 year

20.] There will be times when the plants are many, but small, yielding a minimal weight (as in the present appeal) and a balance will have to be struck between use of the above categories.

[36] Tuidama had been criticized in Dibi on the ground that it had failed to consider Koroi and instead had followed ‘discredited’ Meli Bavesi.
[37] Meli Bavesi in considering an appeal against possession stated the following guidelines for cultivation and possession.

‘Category 1 – Theing of a small nall number of cannabis plants for personal use by an offender or possession of small amount of cannabis coupled with “technical” supply of the drug to others on a non-commercial basis. First offender a short prison term, perhaps served in the community. Sentencing point 1 to 2 years.

Category 2 – Small scale cultivation of cannabis plants or possession for a commercial purpose with the object of deriving profit, circumstantial evidence of sale even on small scale commercial basis. The starting point for sentencing should generally be between 2 to 4 years. However, where sales are limited and infrequent and lowest starting point might be justified.

Category 3 – Res for the most sest serious classes of offending involving large scale commercial growing or possession of large amounts of drug usually with a considerable degree of sophistication, large numbers of sales, circumstantial or direct evidence of commercial involvement the starting point would generally be 5 to 6 years.

[38] There is an appeal pending against the decision in Tuidama filed by the State bearing No. AAU003 of 2017 where the State had demonstrated with 08 examples that while some High Court judges follow Sulua guidelines others rely on Tuidama, Dibi and Nabenu and stated that this esultesulted in lack of uniformity in the sentencing in cases involving cultivation of illicit drugs.

[39] This is clearly is not a healthy develop[see paragraph 25 of the Ruling in Kumar v State [2020] FJCA 64; AAU033.2018 (28 May 2020)] made on a similar situation in sentencing relating to aggravated burglary.

[40] It has to be admitted that there was no specific discussion on sentencing guidelines on cultivation in Sulua or in subsequent decisions in State v Dreduadua [2020] FJCA 7; AAU65 of 2016 (27 February 2020) and State v Mata [2019] FJCA 20; AAU0056 of 2016 (07 March 2019) as this issue of disparity of sentencing arising from different tariff regimes was not argued before the Court of Appeal. Therefore, there is an urgent need for the Court of Appeal or the Supreme Court to revisit the sentencing guidelines on cultivation of illicit drugs in the light of the current situation which has surfaced in the recent past.

[41] Whether sentencing in offences involving cultivation should be based on weight of cannabis or the number of plants or a combination of both, cultivated in any given extent of land where cannabis plants are found with all other factors being considered as aggravating or mitigating the offence, would be a vital question to answer.

[42] Similarly, if the number of plants could be equated scientifically to a corresponding weight then whether Sulua guidelines could still be applied perhaps with suitable modifications even in the case of cultivation with other aggravating and mitigating factors specific to cultivation being taken into account in arriving at the final sentence, is also another matter to be considered. However, if weight is considered the determining guide for cultivation offences whether it is the weight of dry leaves or the weight of raw plants that should be considered is also a vital question to be answered as otherwise there is an anomaly between sentencing in possession and cultivation based on weight as highlighted in State v Vuicakau [2018] FJCA 12; HAC 01 of 2018 (19 January 2018).

[43] In Matakorovatu v State [2020] FJCA 84; AAU174.2017 (17 June 2020) also I discussed the same issue in detail.

[44] Though, the ground of appeal urged by the appellant against sentence cannot be said to have a reasonable prospect of success, the above issue relating to sentencing tariff on cultivation poses a question of law requiring no leave to appeal. However, as a matter of formality I allow leave to appeal.

Order

1. Leave to appeal against conviction is refused.

2. Leave to appeal against sentence is allowed.

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL