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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 0093 of 2017
[High Court of Suva Criminal Case No. HAC 064 of 2015S]
BETWEEN:
KAMINIELI NAQELECA
Appellant
AND:
STATE
Respondent
Coram: Prematilaka, JA
Counsel: Mr. T. Lee for the Appellant
Mr. Y. Prasad for the Respondent
Date of Hearing: 06 January 2021
Date of Ruling : 08 January 2021
RULING
[1] The appellant had been charged in the High Court of Suva on a single count of Cultivation of Illicit Drugs contrary to section 5(a) of the Illegal Drugs Control Act of 2004 committed on 21 January 2015 at Davecadra farm, Wainibuka, Tailevu, in the Central Division. The information read as follows.
‘Statement of Offence
UNLAWFUL CULTIVATION OF ILLICIT DRUGS: Contrary to section 5 (a) of the Illicit Drugs Control Act 2004.
Particulars of Offence
WAISAKE KALOULIA and KAMINIELI NAQELECA, on the 21st day of January 2015, at Davecadra farm, Wainibuka, Tailevu, in the Central Division, without lawful authority, cultivated 160.6 kilograms of Cannabis Sativa or Indian Hemp, being illicit drugs
[2] At the conclusion of the summing-up, on 30 January 2017 the assessors had unanimously opined that the appellant was guilty as charged. On the same day the learned trial judge had agreed with the assessors, convicted the appellant and sentenced him on 31 January 2017 to 18 years of imprisonment subject to a non-prole period of 15 years.
[3] The appellant had preferred an untimely notice of appeal against conviction and sentence followed up by amended grounds of appeal. The delay is about 3 ½ months. Subsequently, an application for enlargement of time and amended notice of appeal (04 June 2020), written submissions (04 June 2020) and appellant’s affidavit (19 August 2020) had been tendered on behalf of the appellant by the Legal Aid Commission. The State had tendered its written submissions on 19 November 2020.
[4] The brief summary of facts according to the sentencing order is as follows.
‘7. The facts were straightforward. On informations received from police informers, the police raided Accused No. 1’s house at Nabulini Village, and found dried cannabis sativa leaves on him, on 21 January 2015 at 3.30 am. Accused No. 1 admitted to police he had a marijuana farm in Davecadra, Wainibuka, Tailevu. The police proceeded to the farm, which was 7 hours walk from Nabulini Village through thick bushes, a river and various streams. At the farm, the police saw Accused No. 2. He fled after seeing the police. The police uprooted 484 cannabis sativa plants, and took the same to Korovou Police Station. The plants were later confirmed as cannabis sativa and weighed 160.6 kilograms. Both accuseds were later caution interviewed by police. They both admitted the above drugs were theirs. They were later charged and convicted for cultivating the same.
‘5. For Accused No. 2, the main evidence against him was his alleged confession when caution interviewed by police on 3 February 2015. His caution interview statements were tendered as Prosecution Exhibit No. 2(A) and 2(B). In his caution interview statement, he admitted cultivating cannabis sativa at Davecadra farm in Wainibuka, Tailevu. Furthermore, on 21 January 2015, DC 4206 Akuila Waibuta (PW3) saw Accused No. 2 at the cannabis sativa farm. He fled when confronted by PW3. Because of Accused No. 2’s alleged confession and the fact that he was sighted at the marijuana farm on 21 January 2015, I found Accused No. 2 guilty as charged. I accept that he made the admission abovementioned and they were true. I also accept PW3’s identification evidence against Accused No. 2 at the crime scene on 21 January 2015.’
[5] Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal may be filed, is given in the decisions in Rasaku v State CAV0009, 0013 of 2009: 24 April 2013 [2013] FJSC 4, Kumar v State; Sinu v State CAV0001 of 2009: 21 August 2012 [2012] FJSC 17
[6] In Kumar the Supreme Court held
‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those factors are:
(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
[7] Rasaku the Supreme Court further held
‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of the rules of court.’
[8] The remarks of Sundaresh Menon JC in Lim Hong Kheng v Public Prosecutor [2006] SGHC 100 shed some more light as to how the appellate court would look at an application for extension of time to appeal.
‘(a)........
(b) In particular, I should apply my mind to the length of the delay, the sufficiency of any explanation given in respect of the
delay and the prospects in the appeal.
(c) These factors are not to be considered and evaluated in a mechanistic way or as though they are necessarily of equal or of any
particular importance relative to one another in every case. Nor should it be expected that each of these factors will be considered
in exactly the same manner in all cases.
(d) Generally, where the delay is minimal or there is a compelling explanation for a delay, it may be appropriate to subject the prospects
in the appeal to rather less scrutiny than would be appropriate in cases of inordinate delay or delay that has not been entirely
satisfactorily explained.
(e) It would seldom, if ever, be appropriate to ignore any of these factors because that would undermine the principles that a party
in breach of these rules has no automatic entitlement to an extension and that the rules and statutes are expected to be adhered
to. It is only in the deserving cases, where it is necessary to enable substantial justice to be done, that the breach will be excused.’
[9] Sundaresh Menon JC also observed
‘27......... It virtually goes without saying that the procedural rules and timelines set out in the relevant rules or statutes are there to be obeyed. These rules and timetables have been provided for very good reasons but they are there to serve the ends of justice and not to frustrate them. To ensure that justice is done in each case, a measure of flexibility is provided so that transgressions can be excused in appropriate cases. It is equally clear that a party seeking the court’s indulgence to excuse a breach must put forward sufficient material upon which the court may act. No party in breach of such rules has an entitlement to an extension of time.’
[10] Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said
‘[23] In my view, therefore, the threshold for enlargement of time should logically be higher than that of leave to appeal and in order to obtain enlargement or extension of time the appellant must satisfy this court that his appeal not only has ‘merits’ and would probably succeed but also has a ‘real prospect of success’ (see R v Miller [2002] QCA 56 (1 March 2002) on any of the grounds of appeal......’
Length of delay
[11] As already stated the delay is about 03 ½ months and is not substantial particularly given the fact that that the appellant had preferred the appeal in person.
[12] In Nawalu v State [2013] FJSC 11; CAV0012.12 (28 August 2013) the Supreme Court said that for an incarcerated unrepresented appellant up to 03 months might persuade
a court to consider granting leave if other factors are in his or her favour and observed.
‘In Julien Miller v The State AAU0076/07 (23rd October 2007) Byrne J considered 3 months in a criminal matter a delay period
which could be considered reasonable to justify the court granting leave.’
[13] However, I also wish to reiterate the comments of Byrne J, in Julien Miller v The State AAU0076/07 (23 October 2007) that
‘... that the Courts have said time and again that the rules of time limits must be obeyed, otherwise the lists of the Courts
would be in a state of chaos. The law expects litigants and would-be appellants to exercise their rights promptly and certainly,
as far as notices of appeal are concerned within the time prescribed by the relevant legislation.’
[14] The appellant’s excuse for the delay is that he had handed over his appeal to Suva Correctional Centre within 30 days but it had not lodged his appeal papers with the Court of Appeal. However, the appellant had not stated this fact in his belated appeal which reached the CA registry on 15 June 2017. The veracity of the appellant’s explanation cannot be tested at all and his reason for the delay is not substantiated with any verifiable facts or material.
Merits of the appeal
[15] In State v Ramesh Patel (AAU 2 of 2002: 15 November 2002) this Court, when the delay was some 26 months, stated (quoted in Waqa v State [2013] FJCA 2; AAU62.2011 (18 January 2013) that delay alone will not decide the matter of extension of time and the court would consider the merits as well.
"We have reached the conclusion that despite the excessive and unexplained delay, the strength of the grounds of appeal and the absence of prejudice are such that it is in the interests of justice that leave be granted to the applicant."
[16] Therefore, I would proceed to consider the third and fourth factors in Kumar regarding the merits of the appeal as well in order to consider whether despite the delay and the absence of a convincing explanation, the prospects of his appeal would warrant granting enlargement of time.
[17] 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, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal untimely preferred against sentence to be considered arguable there must be a real prospect of its success in appeal. The aforesaid guidelines 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.
[18] Grounds of appeal urged on behalf of the appellant are as follows.
CONVICTION
‘Ground 1
The Learned Trial Judge erred in law and in fact when he failed to adequately discuss how the prosecution managed to discharge their burden in linking the Illicit Drugs to the Appellant when the same was not put to him in his caution interview.
Ground 2
The Learned Trial Judge failed to adequately discuss the issue on procedure of dealing with exhibits thereby questioning the causal link to the Appellant in terms of evidence.
Ground 3
The Learned Trial Judge erred in relying on the incriminating hearsay evidence of the co appellant supposedly conveyed to the state witness which was accepted as credible to strengthen the identification evidence.
Ground 4
The Learned Trial Judge erred in his inadequate assessment of the caution interview admission of the Appellant on its truth aspect.
SENTENCE
Ground 1
The Learned Trial Judge erred in law and in fact in his election of a high starting point which culminated in a high sentence.
01st ground of appeal
[19] The appellant’s argument is that according to paragraph 33 of the summing-up his counsel had argued that he cannot be linked to the cultivation of marijuana produced as prosecution exhibit 3 as no specific allegation was put to him at the cautioned interview. He also argues that the fact that he was seen at the marijuana farm and was seen running away upon seeing the police party cannot make him liable for cultivation.
[20] It is not possible for me to fully consider the appellant’s contention that he was not confronted with a specific charge of cultivating 160.6 kg cannabis when cautioned interviewed by the police due to the absence of the cautioned interview for perusal at this stage. However, the trial judge had informed that assessors at paragraph 33 of the summing-up that confrontation with the drugs as done to the appellant’s co-accused was not done for the appellant when interviewed.
‘33. Counsel for Accused No. 2 submitted that the 160.6 kilograms of cannabis sativa plants produced in court as Prosecution Exhibit No. 3 cannot be linked to Accused No. 2. This was because it was not put directly to Accused No. 2 when he was caution interviewed. In other words, the confrontation with the drugs as done to Accused No. 1 in question and answer 32 of Prosecution Exhibit No. 1(A) and 1(B), was not done for Accused No. 2, when interviewed. So, argued counsel for Accused No. 2 that, Accused No. 2 cannot be taken to be confessing to cultivating Prosecution Exhibit No. 3 in his interview notes, as there was no direct links in the interview notes. Prosecution countered the above argument by saying that when the police raided Davecadra farm on 21.01.15, DC 4206 Akuila Waibuta (PW3) saw Accused No. 2 on the marijuana farm. PW3 said, Accused No. 2 fled when he saw the police.’
[21] The state has pointed out that according to paragraphs 30 of the summing-up the appellant had been told that the allegation against him was that he with others had cultivated illicit drugs at Davecadra, Wainibuka, Tailevu unlawfully on 21 January 2015 and that was sufficient to establish the nexus between the appellant and the allegation of cultivation in the information.
‘30. PW5 said, he put the allegation to Accused No. 2 in the following way:
“...it is alleged that you with others on 21.01.15 at Davecadra, Wainibuka, Tailevu unlawfully cultivated illicit drugs. You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given in evidence...”
[22] In my view, it would not be fatal to the conviction if, upon an examination of the totality of the cautioned interview, it appears that the appellant had full knowledge that the charge levelled against him by the investigators was nothing but relating to the cultivation of cannabis on 21.01.15 at Davecadra, Wainibuka, Tailevu even without the exact quantity. This is particularly so given the evidence of his presence at the said marijuana farm and fleeing the scene upon sighting the police party.
[23] Therefore, I would not make any finding whether the appellant has a real prospect of success or not in appeal with this ground of appeal.
02nd ground of appeal
[24] The appellant argues that arising from the first ground of appeal that the prosecution had not established that it is the same cannabis sativa plants uprooted at the said farm and confronted the appellant with that had been sent for testing because the appellant was not confronted with them at the cautioned interview. The appellant is challenging the link between him and marijuana plants uprooted at the farm as far as the allegation of cultivation is concerned and then the testing done by the analyst on such plants. His argument is that when the first nexus is not established the rest of the chain automatically collapses.
[25] Needless to state that without the complete appeal record it is not possible to examine this complaint in a meaningful manner. An answer to the appellant’s grievance could be provided only upon a careful examination of the entirety of the evidence led at the trial.
[26] Therefore, I would not make any finding whether the appellant has a real prospect of success or not in appeal with this ground of appeal.
03rd ground of appeal
[27] The appellant’s concern here is based on paragraph 35 of the summing-up where the trial judge had told the assessors that PW3 had told in evidence that the appellant’s co-accused (01st accused) had told him that he and the appellant owned the marijuana farm.
‘35. PW3 said, he was part of the police team that went to Davecadra farm on 21 January 2015. PW3 said, when they arrived on the cannabis sativa plant farm at about 11am on the day, he saw Accused No. 2 standing among the cannabis sativa plants. PW3 said, he observed Accused No. 2 for 60 seconds. He said, Accused No. 2 was 7 meters from him. He said, he chased him. He said, there was bright sunlight around as it was 11 am. PW3 said, his observation of the accused was not impeded. PW3 said, he had seen Accused No. 2 before in November 2014, December 2014 and January 2015. A special reason for remembering his face that day was that at Nabulini Village, Accused No. 1 told him that he and Accused No. 2 owned the farm. Are there any specific weakeness in PW3’s identification evidence? An identification parade is often counter – productive when it’s a case of recognition. In any event, if the quality of PW3’s identification evidence was of a high quality, you may use the same. If it’s otherwise, you may reject the same.’
[28] The appellant challenges this piece of evidence as hearsay which the trial judge should not have allowed causing him prejudice. He has cited Singh v State [2020] FJSC 1; CAV0027 of 2018 (27 February 2020) while the state has cited Gounder v State [2020] FJCA4; AAU29of 2015 (27 February 2020) as setting out the principles governing hearsay evidence.
[29] It appears to me that what PW3 had told in evidence may not amount to hearsay evidence. However, it may be objectionable on another footing i.e. it appears to be an incriminating statement made by one accused against another in his absence outside the witness box. In Niume v State [2015] FJCA 132; AAU0106.2011 (2 October 2015) the Court of Appeal stated:
‘[16] ........... It is well established law that, while a statement made in the absence of the accused person by one of his co-accused cannot be evidence against him, if a co-accused goes into the witness box and gives evidence in the course of a joint trial, then what he says becomes evidence for all the purposes of the case including the purpose of being evidence against his co-accused (Leonard Rudd (1948) 32 Cr App R 138, 140; Ram Asre v Reginam [1965] 11 FLR 214, 218).
[30] This may be likened to a situation where evidence of an uncharged act or evidence of bad character is led but a warning to disregard is not given by the trial judge to the assessors. In Rokete v State [2019] FJCA 49; AAU0009.2014 (7 March 2019) the Court of Appeal dealt with a complaint of leading evidence of an uncharged act by the prosecution as follows.
‘[35] Once again the appellant complains of an alleged non-direction by the trial Judge with regard to an uncharged act on the evidence of his having escaped from Ba Police Station during interview. Admittedly, this had not been raised by the counsel for the appellant when the trial Judge asked for any redirections. The appellant relies on Senikarawa v State AAU0005 of 2004 S: 24 March 2006 [2006] FJCA 25 and Vesikula v State AAU0070 of 2014: 23 October 2018 [2018] FJCA 176 in support of his argument. The litmus test for leading evidence of an uncharged act is whether the probative value of the evidence outweighs the prejudice to the accused.
[31] Goundar J in State v Nayacalagilagi [2009] FJHC 48; HAC165.2007 (17 February 2009); stated:
“If the jury inadvertently hears inadmissible evidence, any prejudice could be avoided or dispelled by a clear warning to disregard the evidence and enable a fair trial. However, if the circumstances are such that the prejudice to the accused could not be dispelled by a warning to the jury, a mistrial is declared as an appropriate remedy to ensure a fair trial for the accused.”
[32] In the circumstances, whether the probative value of the impugned evidence outweighs the prejudice to the appellant or that evidence could be considered as part of res gestae could be examined by the full court only with the availability of the complete appeal record.
[33] In Mohan v State [2015] FJCA 155; AAU103.2011 (3 December 2015) affirmed by the Supreme Court in King v State [2019] FJSC 11; CAV0002.2016 (21 May 2019) the Court of Appeal considered a similar complaint where bad character evidence had crept in through the cautioned interview and remarked
[34] On a complaint of the irregularity of a first time dock identification the following test was formulated in Korodrau v State [2019] FJCA 193; AAU090.2014 (3 October 2019) following Naicker v State CAV0019 of 2018: 1 November 2018 [2018] FJSC 24 and Saukelea v State [2018] FJCA 204; AAU0076.2015 (29 November 2018)
‘[36] Thus, the Supreme Court appears to formulate a two tier test. Firstly, ignoring the dock identification of the appellant whether there was sufficient evidence on which the assessors could express the opinion that he was guilty, and on which the judge could find him guilty. Secondly, whether the judge would have convicted the appellant, had there been no dock identification of him. In my view, the first threshold relates to the quantity/sufficiency of the evidence available sans the dock identification and the second threshold is whether the quality/credibility of the available evidence without the dock identification is capable of proving the accused’s identity beyond reasonable doubt. Of course, if the prosecution case fails to overcome the first hurdle the appellate court need not look at the second hurdle. However, if the answers to both questions are in the affirmative, it could be concluded that no substantial miscarriage of justice has occurred as a result of the dock identification evidence and want of warning and the proviso to section 23 (1) of the Court of Appeal Act would apply and appeal would be dismissed.
[35] The same or similar two-tiered test may also be suitable to the appellant’s complaint under the third ground of appeal. Firstly the appellate court would consider ignoring the impugned evidence whether there was sufficient evidence on which the assessors could express the opinion that the appellant was guilty and on which the trial judge could find him guilty (i.e. quantity/sufficiency of the evidence available sans the impugned item of evidence). Secondly, the court would see whether the assessors and the judge would have found the appellant guilty even in the absence of evidence being challenged (i.e. whether the quality/credibility of the available evidence without the impugned evidence is capable of proving the case against the accused beyond reasonable doubt).
[36] The above approach in consistent with the powers conferred on the appellate court under section 23 of the Court of Appeal Act i.e. having considered the admissible evidence against the appellant as a whole, could the appellate court say that the verdict was unreasonable; whether there was admissible evidence on which the verdict could be based [vide Sahib v State [1992] FJCA 24; AAU0018u.87s (27 November 1992), Rayawa v State [2020] FJCA 211; AAU0021.2018 (3 November 2020) and Turagaloaloa v State [2020] FJCA 212; AAU0027.2018 (3 November 2020)].
[37] In other words, could the trial judge also have reasonably convicted the appellant on the admissible evidence before him (vide Kaiyum v State [2013] FJCA 146; AAU71 of 2012 (14 March 2013) and Singh v State [2020] FJCA 1; CAV0027 of 2018 (27 February 2020)].
[38] Even if the impugned evidence had resulted in miscarriage of justice then the appellate court would consider the application of the proviso to section 23 (1) of the Court of Appeal Act as enunciated in Aziz v State [2015] FJCA 91; AAU112.2011 (13 July 2015)
‘[55] The approach that should be followed in deciding whether to apply the proviso to section 23 (1) of the Court of Appeal Act was explained by the Court of Appeal in R v. Haddy [1944] 1 KB 442. The decision is authority for the proposition that if the Court of Appeal is satisfied that on the whole of the facts and with a correct direction the only reasonable and proper verdict would be one of guilty there is no substantial miscarriage of justice. This decision was based on section 4(1) of the Criminal Appeal Act 1907 (UK) which was in the same terms as section 23(1) of the Court of Appeal Act.
[56] This test has been adopted and applied by the Court of Appeal in Fiji in R –v- Ramswani Pillai (unreported criminal appeal No. 11 of 1952; 25 August 1952); R –v- Labalaba (1946 – 1955) 4 FLR 28 and Pillay –v- R (1981) 27 FLR 202. In Pillay –v- R (supra) the Court considered the meaning of the expression "no substantial miscarriage of justice" and adopted the observations of North J in R –v- Weir [1955] NZLR 711 at page 713:
"The meaning to be attributed to the words 'no substantial miscarriage of justice has occurred' is not in doubt. If the Court comes to the conclusion that, on the whole of the facts, a reasonable jury, after being properly directed, would without doubt have convicted, then no substantial miscarriage of justice within the meaning of the proviso has occurred."
[57] This will be so notwithstanding that the finding of guilt may have been due in some extent to the faulty direction given by the judge. In other words the misdirection may give rise to the conclusion that there has been a miscarriage of justice (ground 4 in section 23(1)) by virtue of the faulty direction but when considering whether to apply the proviso the appeal may be dismissed if the Court considers that there was no substantial miscarriage of justice.
In Vuki –v- The State (unreported AAU 65 of 2005; 9 April 2009) this Court observed at paragraph 29:
"The application of the proviso to section 23 (1) _ _ _ of necessity, must be a very fact and circumstance – specific exercise."
[39] Therefore, I would not make any finding whether the appellant has a real prospect of success or not in appeal with this ground of appeal as only the full court could determine it in appeal.
04th ground of appeal
[40] The appellant argues that the trial judge had inadequately assessed the truth aspect of his cautioned interview. The state argues otherwise based on paragraph 33 of the summing-up and I agree with that submission.
‘32. When considering the above evidence, I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements as alleged by the police above. If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.’
[41] Therefore, there is no real prospect of success on this ground of appeal.
01st ground of appeal (sentence)
[42] The appellant had been dealt with under category 4 of sentencing guidelines in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) where the sentencing tariff for possession of cannabis sativa of 4000g or above was set between 07-14 years of imprisonment.
[43] The appellant’s argument here is that the trial judge had taken the quantity of 160.6 kg as an aggravating factor and enhanced the sentence by 08 years to the starting point of 12 years when the tariff for 4 kg and above had already consumed the weight of the cannabis.
[44] The sentencing tariff of 07-14 years for any weight of 04 kg or more of cannabis sativa as stipulated in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) does not necessarily mean that any weight of or above 4kg should only get a sentence between 07-14 years. Depending on the higher weight above 04kg the final sentence could get increased upwards from 07 years and it could be even above 14 years if all the aggravating circumstances so warrant in any given case. Merely because the sentence is above the tariff that does not necessarily make it illegal either. It is trite law that if the sentencing judge explains the ultimate sentence could be lower or higher than the accepted range of sentence. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range (vide Koroivuki v State [2013] FJCA 15; AAU0018 of 2010 (05 March 2013).
[45] The appellant’s argument is that the trial judge had double counted the weight of marijuana as an aggravating factor which the judge may have already considered in picking the starting point at 12 years towards the higher end of the tariff.
[46] In Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court has raised a few concerns regarding selecting the ‘starting point’ in the two-tiered approach to sentencing in the face of criticisms of ‘double counting’ and question the appropriateness in identifying the exact amount by which the sentence is increased for each of the aggravating factors stating that it is too mechanistic an approach. Sentencing is an art, not a science, and doing it in that way the judge risks losing sight of the wood for the trees.
[47] The Supreme Court said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) that if judges take as their starting point somewhere within the range, they will have factored into the exercise at least some of the aggravating features of the case. The ultimate sentence will then have reflected any other aggravating features of the case as well as the mitigating features. On the other hand, if judges take as their starting point the lower end of the range, they will not have factored into the exercise any of the aggravating factors, and they will then have to factor into the exercise all the aggravating features of the case as well as the mitigating features.
[48] Some judges following Koroivuki v State (supra) pick the starting point from the lower or middle range of the tariff whereas other judges start with the lower end of the sentencing range as the starting point.
[49] This concern on double counting was echoed once again by the Supreme Court in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) and stated that the difficulty is that the appellate courts do not know whether all or any of the aggravating factors had already been taken into account when the trial judge selected as his starting point a term towards the middle of the tariff. If the judge did, he would have fallen into the trap of double-counting.
[50] The methodology commonly followed by judges in Fiji is the two-tiered process expressed in the decision in Naikelekelevesi v State [2008] FJCA 11; AAU0061.2007 (27 June 2008) which was further elaborated in Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015). It operates as follows:
(i) The sentencing judge first articulates a starting point based on guideline appellate judgments, the aggravating features and seriousness of the offence i.e. objective circumstances and factors going to the gravity of the offence itself [not the offender]; the seriousness of the penalty as set out in the relevant statute and relevant community considerations (tier one). Thus, in determining the starting point for a sentence the sentencing court must consider the nature and characteristic of the criminal enterprise that has been proven before it following a trial or after the guilty plea was entered. In doing this the court is taking cognizance of the aggravating features of the offence.
(ii) Then the judge applies the aggravating features of the offender i.e. all the subjective circumstances of the offender which will increase the starting point, then balancing the mitigating factors which will decrease the sentence, (i.e. a bundle of aggravating and mitigating factors relating to the offender) leading to a sentence end point (tier two).
[51] However, in applying the two-tiered approach the judges should endeavor to avoid the error of double counting as highlighted
by the Supreme Court. The best way obviously to do that is to follow the two-tiered approach diligently as stated above. In this
regard, it is always helpful for the sentencing judges to indicate what aggravating factors had been considered in picking the starting
point in the middle of the tariff and then to highlight other aggravating factors used to enhance the sentence. If the starting point
is taken at the lower end without taking into account any aggravating features, then all aggravating factors can be considered to
increase the sentence.
[52] The observations of the Supreme Court in Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015) are instructive in this regard.
‘[49] In Fiji, the courts by and large adopt a two-tiered process of reasoning where the sentencing judge or magistrate first considers the objective circumstances of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence (tier one), and then considers all the subjective circumstances of the offender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence) (tier two), before deriving the sentence to be imposed. This is the methodology adopted by the High Court in this case.
[50] It is significant to note that the Sentencing and Penalties Decree does not seek to tie down a sentencing judge to the two-tiered process of reasoning described above and leaves it open for a sentencing judge to adopt a different approach, such as "instinctive synthesis", by which is meant a more intuitive process of reasoning for computing a sentence which only requires the enunciation of all factors properly taken into account and the proper conclusion to be drawn from the weighing and balancing of those factors.
[51] In my considered view, it is precisely because of the complexity of the sentencing process and the variability of the circumstances of each case that judges are given by the Sentencing and Penalties Decree a broad discretion to determine sentence. In most instances there is no single correct penalty but a range within which a sentence may be regarded as appropriate, hence mathematical precision is not insisted upon. But this does not mean that proportionality, a mathematical concept, has no role to play in determining an appropriate sentence. The two-tiered and instinctive synthesis approaches both require the making of value judgments, assessments, comparisons (treating like cases alike and unlike cases differently) and the final balancing of a diverse range of considerations that are integral to the sentencing process. The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability, although some cases may not be amenable to a sequential form of reasoning than others, and some judges may find the two-tiered sentencing methodology more useful than other judges.
[53] This court is faced with exactly the same dilemma in this appeal. It is not clear what other factors the trial judge had considered in selecting the starting point other than the weight of cannabis, for the trial judge had not set out any other aggravating factors. It could therefore be reasonably assumed that it is the weight of the cannabis as an aggravating feature that may have gone into the decision of picking the starting point at 12 years. If so, there could be double counting when the sentence was enhanced by further 08 years in consideration of the weight once again for the second time.
[54] I previously had the opportunity of examining a similar complaint in Salayavi v State [2020] FJCA 120; AAU0038 of 2017 (03 August 2020) where I stated:
‘[30] In the present case, however, it is clear what features the learned trial judge had considered in selecting the starting point. Therefore, it becomes clear that there had been double counting when the same or similar factors were counted as aggravating features to enhance the sentence. Like in this case, if the trial judges state what factors they have taken into account in selecting the starting point the problem anticipated in Nadan may not arise. Therefore, in view of the pronouncements of the Supreme Court in Nadan it will be a good practice, if not a requirement, in the future for the trial judges to set out the factors they have taken into account, if the starting point is fixed ‘somewhere in the middle of the range’ of the tariff. This would help prevent double counting in the sentencing process. In doing so, the guidelines in Naikelekelevesi and Koroivuki may provide useful tools to navigate the process of sentencing thereafter.’
[55] If Naikelekelevesi guidance is carefully followed i.e. first set out the objective circumstances i.e. the factors going to the gravity of the offence to pick the starting point and then state the aggravating features of the offender i.e. all the subjective circumstances of the offender to enhance the sentence, the danger of double counting expressed by the Supreme Court may be able to be avoided.
[56] However, it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015).
[57] Nevertheless, whether the sentence imposed on the appellant is justified should be decided by the full court despite the sentencing error of probable double counting. If so, the full court would decide what the ultimate sentence should be. The full court exercising its power to revisit the sentence under section 23(3) of the Court of Appeal Act would have to decide that matter after a full hearing.
[58] The appellant should be given leave to appeal against sentence on this sentencing error. The appropriate sentence is a matter for the full court to decide [Also see Salayavi v State AAU0038 of 2017 (03 August 2020) and Kuboutawa v State AAU0047.2017 (27 August 2020) for detailed discussions].
[59] Leave to appeal against sentence could also be granted on a different footing namely the general state of confusion prevalent in the sentencing regime on cultivation of illicit drugs among trial judges which is yet unresolved by the Court of Appeal or the Supreme Court.
[60] 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 cultivation of marijuana[1] 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[2]. 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[3].
[61] These disparities and inconsistencies have been amply highlighted in six recent Rulings[4] in the Court of Appeal and therefore, the same discussion need not be repeated here.
Prejudice to the respondent.
[62] The respondent has not submitted any such prejudice in the event of enlargement of time being granted.
Order
1. Enlargement of time to appeal against conviction is refused.
2. Enlargement of time to appeal against sentence is allowed.
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
[1] See State v Bati [2018] FJCA 762; HAC 04 of 2018 (21 August 2018).
[2] Tuidama v State [2016] FJHC 1027; HAA29.2016 (14 November 2016), State v Matakorovatu [2017] FJHC 742; HAC355.2016 (29 September 2017), Dibi v State [2018] FJHC 86; HAA96.2017 (19 February 2018) and State v Nabenu [2018] FJHC 539; HAA10.2018 (25 June 2018).
[3] Raivasi v State [2020] FJCA 176; AAU119.2017 (22 September 2020) and Bola v State [2020] FJCA 177; AAU132.2017 (22 September 2020).
[4] Matakorovatu v State [2020] FJCA 84; AAU174.2017 (17 June 2020), Kaitani v State [2020] FJCA 81; AAU026.2019 (17 June 2020), Seru v State [2020] FJCA 126; AAU115.2017 (6 August 2020), Kuboutawa v State AAU0047.2017 (27 August 2020) and Tukana v State [2020] FJCA 175; AAU117.2017 (22 September 2020) and Qaranivalu v State [2020] FJCA 186; AAU123.2017 (29 September 2020).
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