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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 063 of 2016
[In the High Court at Suva Case No. HAC 061 of 2016]
BETWEEN:
TOMASI TAWAKE
Appellant
AND:
STATE
Respondent
Coram: Gamalath, JA
: Prematilaka, JA
: Bandara, JA
Counsel: Mr. S. Waqainabete for the Appellant
: Ms. P. Madanavosa for the Respondent
Date of Hearing: 09 February 2022
Date of Judgment: 03 March 2022
JUDGMENT
Gamalath, JA
[1] I have read the judgment of Prematilaka, JA in draft and I agree with the judgment and its conclusion.
Prematilaka, JA
[2] The appellant had been charged in the High Court at Suva on a single count of unlawful cultivation of illicit drugs namely Cannabis Sativa weighing 84.6 kilograms contrary to section 5(a) of the Illegal Drugs Control Act of 2004 on 25 January 2016 at his farm at Vatudavila Settlement in Waibau, Naitasiri in the Central Division.
[3] The appellant had pleaded guilty to the information and admitted the summary of facts. He was convicted on his own plea and on 01 April 2016 the appellant had been sentenced to 13 years of imprisonment subject to a non-prole period of 12 years.
[4] The single judge of this court had refused enlargement of time to appeal out of time against conviction but granted leave to appeal against sentence. The appellant has not renewed his conviction appeal before the full court. Therefore, this court has to consider only the sentence appeal. Leave to appeal against sentence had been granted primarily on the basis that the trial judge had arguably picked the starting point of 12 years based on the weight of cultivated cannabis and apparently the same weight had been counted a second time as the principle aggravating factor for which 06 years had been added amounting to a sentencing error.
[5] The grounds of appeal against sentence before this court are as follows:
Ground 1
THAT the Learned Sentencing Judge erred in law by choosing the higher end of the tariff of 12 years as the appropriate starting point.
Ground 2
THAT the Learned Sentencing Judge erred in law by enhancing the sentence after comparing the appellant’s case to that of Kini Sulua as an aggravating features.
Ground 3
THAT the Learned Sentencing Judge erred in fact and law in deciding that 13 years was the appropriate sentence for the appellant.
Ground 4
THAT the Learned Sentencing Judge erred in law in choosing a non-parole period that is close to the head sentence.
[6] When a sentence is challenged in appeal the appellate court will see whether the trial judge (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 [vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14;
[7] A brief summary of facts according to the judgment is as follows:
‘The police were alert an un caller that thet the accused was cultivating cannabis sats sativa plants at his farm at Vatudavila Settlement in Waibau, Naitasiri. On 25 January 2016, a group of police officers from the Drug Unit at Nausori raided the accused's farm. They went to his house. He was there. The police questioned him on the above. He admitted to police that he was cultivating cannabis sativa plants, and led them to his farm.
At the accused's farm, the police saw 76 cannabis sativa plants. The police uprooted and seized the plants. On 26 January 2016, tests were carried out on the plants by the government analyst, and she confirmed that the plants were cannabis sativa and weighed a total 84.6 kg. The accused was caution interviewed by police on the same day, and he admitted cultivating the above plants. He was later formally charged with "Unlawful Cultivation of Illicit Drugs", contrary to section 5(a) of the Illicit Drugs Control Act 2004.’
01st to 03rd grounds of appeal
[8] The gist of the 01st ground of appeal is that there has been double-counting as identified by the single judge. The other complaint is the propriety of applying sentencing tariff set in Sulua v State [2012] FJCA 33; AAU0093 of 2008 (03 May 2012) to cultivation of cannabis as opposed to possession of cannabis.
[9] I shall first consider the alleged error of double counting in the sentencing process. In Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) where the Supreme Court raised concerns regarding the ‘starting point’ in the two-tiered approach to sentencing in the face of criticism of ‘double counting’. The Supreme Court said that there is a difference in judicial opinion on the starting point among judges in Fiji in that on the one hand in Koroivuki v The State [2013] FJCA 15 the Court of Appeal observed that as a matter of good practthe starting point should be picked from the lower or middle range of the tariff but on then the other hand, a number of trial judges choose the lower end of the range as a matter of routine. The Court said that this difference of approach has to be resolved at some stage. Unfortunately, it is yet to be resolved and I hope that the DPP or the Legal Aid Commission would seek an authoritative pronouncement from the Supreme Court on this sooner than later.
[10] Once again, Keith, J said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) on the same topic of ‘starting point’ and ‘double counting’ as follows:
‘[56] ............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 othe0;aggravating features ures 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 vatint factors, and and they will then have to factor into the exercise all the aggravating features of the case as well as thegatintures. Either way, you should end up with the same sentence. If you do not, you wyou will kill know that something has gone wrong somewhere.
[57] .....First, a common complaint is that a judge has fallen into the trap of “double-counting”, i.e. reflecting one or more of the aggravating features of the case more than once in the process by which the judge arrives at the ultimate sentence. If judges choose to take as their starting point somewhere in the middle of the range, that is an error which they must be vigilant not to make. They can only then use those aggravating features of the case which were not taken into account in deciding where the starting point should be.
[58] Secondly,..... But it also means that the many things which make these crimes so serious have already been built into the tariff. That puts a particularly important burden on judges not to treat as aggravating factors those features of the case which will already have been reflected in the tariff itself. That would be another example of “double-counting”, which must, of course, be avoided. (emphasis mine)’
[11] The concern on double counting was echoed once again by the Supreme Court in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019):
‘[38] The challenge to the sentence is that the judge unwittingly double-counted some of the aggravating features. The argument runs like this. Having identified the tariff for the rape of a child as 10-16 years’ imprisonment, the judge must have reflected some of the features which made this a serious case by taking 12 years as his starting point. ..............These were unquestionably all aggravating factors, but the difficulty is that we do not know whether all or any of these aggravating factors had already been taken into account when the judge selected as his starting point a term towards the middle of the tariff. If he did, he would have fallen into the trap of double-counting.
[39] This illustrates the pitfalls inherent in the mechanistic way judges arrive at an appropriate sentence in Fiji – assigning
a particular additional term for any aggravating features and a particular lesser term for any mitigating features. In many jurisdictions,
the court identifies its starting point, states the aggravating and mitigating factors and then announces the ultimate sentence without
saying how much was added for the aggravating factors and how much was then taken off for the mitigating factors. But the real problem which this case illustrates is the danger of a span of years representing the tariff without identifying where
the judge should start within that tariff for a case without any aggravating or mitigating features. This problem has been highlighted before by the Supreme Court: see olokula v The State& [2018] FJSC 5 at paras 19 and 20 a60;
[12] The trial judge had take taken the weight of 84.6 kg which is approximately between 16-17 times more than the weight of cannabis found in Kini Sulua’ s case (where sentencing tariff for possession of cannabis was set) as the aggravating factor and started the sentence with 12 years. Thereafter, the trial judge had added 06 years for the aggravating factor. Considering the caution expressed and applying the principles stated by the Supreme Court this plainly amounts to double counting. The sentence appeal should be allowed on this ground of appeal.
[13] However, the matter does not end there, for this court has to decide what the appropriate sentence should be in this instance. In doing so, the approach suggested by the Supreme Court 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) appears to be the best guide. The Supreme Court held that it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it and 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. It was also held that the approach taken by appellate courts 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.
[14] This will take me consider the second complaint where the focus of attention is on the lack of guidelines on sentencing range for cultivation of cannabis.
[15] The appellant argues that it was wrong for the trial judge to have followed Sulua sentencing guidelines and sentenced him accordingly in as much as weight of the plants is not the weight of dried leaves as in Sulua. Further, he argues that Sulua guidelines should be restricted only to possession and not cultivation.
[16] It is clear from the sentencing order that the trial judge had treated the appellant’s case under the forth category identified in Sulua where the tariff had been set at 07-14 years of imprisonment for possession of cannabis sativa of 4000g or above.
[17] In State v Bati [2018] FJCA 762; HAC 04 of 2018 (21 August 2018) 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 guidelines may noty to y to cultivation.
[18] Sulua was a case concerning possession; not cultivation. Although, S/i> tariff guidelines were expected apply to the offending verbs of "acq>"acquire,lies, prod produces, manufactures, cultivates, uses or administers" in section 5(a) of the Illicit Drugs Control Act 2004, it is clear lear from many cases in the High Court that the sentencing judges have notys applied Sulua guidelines when it comes to s to offences involving cultivation.
[19] For example in Tuidama v State [2016] FJHC 1027; HAA29.2016 (14 November 2016) the reasons for not following Sulua guidelines given by the High Coudge can be summarised as f as follows:
(i) Sentencing tariff in Sulua was based on the weight of dried cannabis sativa leaves whereas the respondent’s case concerned ‘green’ plants.
(ii) The weight of 2.68 kg of 13 ‘green’ plants would include the weight of stems and the water content in the fresh plants.
(iii) It is not mentioned by the Govt. Analyst whether the roots had been excluded in specifying the weight of those plants.
(iv) Therefore, the sentencing guidelines based on Sulua cannot be applied and it is unlikely that the dry weight of the 13 fresh plants would fall into the third category of Sulua guideline (i.e. 03-07 years of imprisonment).
[20] Accordingly, the High Court’s sentence in Tuidama (18 months imprisonment for cultivation of 13 plants of cannabis sativa/2.68kg) was based not on Sulua guidelines but on the following criteria (persuaded by the judgment in Bavesi v State [2004] FJHC 93; HAA 0027.2004).
[21] The High Court in State v Matakorovatu [2017] FJHC 742; HAC355.2016 (29 September 2017) applied the same sentencing formula and sentenced the accused to 10 years of imprisonment for cultivating 824 plants weighing 7975.7g on the basis that the accused had been involved in a very large scale cultivation, with a clarification that:
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.
[22] Then in State v Nabenu [2018] FJHC 539; HAA10.2018 (25 June 2018) (involving cultivation of 34 plants of cannabisva weighing 10kg), the High Court had suggested the fole following criteria after considering a number of previous decisions and imposed a sentence of 03 years.
[23] Nabenu inter alia had equthed the number of plants to a corresponding assumed weight. Both Tuidama and Nabenu&#ad also considered the purpose of cultivation (i.e. personal or commercial) and scal scale of the cultivation to determine the sentence.
[24] In the case of Dibi v State [2018] FJHC 86; HAA96.2017 (19 February 2018) [23 marijuana plants/weight of the plants was 29.7g and weight of the seeds was 2.7g and in all a total of 32.4g)] the High Court followed 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. The High Court imposed a sentence of 14 months imprisonment. In Debi the High Court said:
‘[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.’
[25] Tuidama had been criticized in Dibi on the ground that it had failed to consider Koroi and had instead followed ‘discredited’
Bavesi.
[26] Bavesi in considering an appeal against possession stated the following guidelines for cultivation and possession.
‘Category 1 – The growing of a small number of cannabis plants for personal use by an offender or possession of small amount of cannabis coupled with “techni8221; supply of the drug to others on a non-commercial basis. First offender a short prisonrison term, perhaps served in the community. Sentencing point 1 to 2 years.
Category 2 – Small scaltivation tion of cannabis plants or possession for a commercial purpose with the object of deriving profit, circumstantial evidence of sale even on small scale rcial basis. The starting point for sentencing should genergenerally be between 2 to 4 years. However, where sales are limited and infrequent and lowest starting point might be justified.
Category 3 – Reserved for the most serious classes of offending involving large scale commercial growing or possession of large amounts of drug usually with a conable degree of sophistication, large numbers of sales, circumstantial or direct evidence ofce of commercial involvement the starting point would generally be 5 to 6 years.’
[27] The state has recognised previously that there are difficulties in applying Sulua guidelines to cultivation of illicit drugs. Similarly, the scope of the terms such as ‘small number of plants’, ‘small scale cultivation’ and ‘large scale commercial cultivation’ suggested in Bavesi also can be subjective and inconclusive in its application. The same goes with ‘personal use’, ‘commercial purpose’ and ‘commercial cultivation’.
[28] However, there has been a commendable attempt to address this issue of subjectivity and inconclusiveness in Nabenu by specifying the number of plants belonging to each category of cultivation coupled with the purpose of cultivation and by adopting Tuidama and accommodating concerns expressed in Dibi. Nabenu has been followed by some High Court judges subsequently[1]. Yet, some other High Court judges continue to follow and apply Sulua guidelines[2]. Some judges follow Tuidama[3].
[29] Thus, it iswell documented that some High Court judges and Magistratesrates apply sentencing guidelines in Sulua in respect otivatiovation as well while some other High Court judges apply different or modified sentencing regimes on the premise
that
[30] There is an appeal pending against the decision in Tuidama filed by the State bearing No. AAU003 of 201re the state had demonstratstrated with 08 examples that while some High Court judges follow Sulua guidelines others rely on Tuidama, Dibi and Nabenu and stated that this has resulted in lack of uniformity in the sentencing in cases involving cultivation of illicit drugs.
[31] However, the disconcerting disparity between these ncing regimes could be best highlighted by the examples of s of Koro where applying Nabenu guidelines the accused on a plea of guilty for cultivating 40.17 kg (196 plants) of cannabis sativa received a sentence of 07 years and 07 months of imprisonment while in Tobua applying Sulua guidelines the accused on a plea of guilty for cultivating 08 kg (46 plants) of cannabis sativa received a sentence of 11 years and 4 ½ months of imprisonment.
[32] The issue of the proper sentencing regime for cultivation cases and the disparities and inconsistencies of sentences for cultivation of cannabis sativa have been amply highlighted in eight recent Rulings[7] in the Court of Appeal and therefore, the same discussion need not be repeated here. However, suffice it to say that sooner the Court of Appeal or the Supreme Court sets down in a guideline judgment the applicable tariff for cultivation of cannabis sativa the better it is for the dispensation of justice equally across all courts the criminal justice system in the country. Uniformity of sentences imposed on accused similarly placed is one of the cornerstones of rule of law, due process of law and equality before law. Trial courts using different tariff regimes for offences involving cultivation of cannabis is far from being satisfactory.
[33] In Kumar v State [2020] FJCA 64; AAU033.2018 (28 May 2020)] the following remarks were made on a similar scenario that had arisen on sentencing relating to aggravated burglary.
‘25. Treating accused under two different sentencing regimes for the same offence simultaneously in different divisions in the High Court would destroy the very purpose the sentencing tariff is expected to achieve; uniformity. The disparity of sentences received by the accused for aggravated burglary depending on the sentencing tariff preferred by the individual trial judge leads to the increased number of appeals to the Court of Appeal on that ground alone. The state counsel indicated that the same unsatisfactory situation is prevalent in the Magistrates courts as well with some Magistrates preferring the old tariff and some opting to apply the new tariff. The state counsel also informed this court that the State would seek a guideline judgment from the Court of Appeal regarding the sentencing tariff for aggravated burglary. I hope that the State would do so at the first available opportunity in the Court of Appeal or the Supreme Court..........’
[34] 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.
[35] Therefore, as highlighted above 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. In this case though the Legal Aid Commission has sought a guideline judgment on the starting point in the sentences on cultivation of cannabis cases, not enough material has been submitted in its written submissions for this court to engage in such an important excise. The state has not filed any submissions at all with regard to that issue but only informed court that it would rely on submissions filed at the leave stage. Leave submissions filed by the state does not tough the question of sentencing tariff on cultivation. There is said to be currently an appeal Eparama Tawake v State CAV 25 of 2019 pending in the Supreme Court where the state is seeking a guideline judgment on this aspect of sentencing. If so, hopefully, in that appeal both parties will fully assist the Supreme Court to lay down guidelines for sentencing on offences on cultivation of cannabis sativa.
[36] Still on the same topic, whether sentencing in offences involving cultivation should be based on weight of cannabis or the number of plants or a combination of both and the 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. Should the role of the offender such as the owner-farmer versus mere labourer also should be taken into account is another important consideration.
[37] 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 green plants that should be considered and which parts of the plants should be taken into account are also vital questions 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).
[38] There is a detailed discussion on these matters in Matakorovatu v State [2020] FJCA 84; AAU174.2017 (17 June 2020) and Seru v State [2020] FJCA 126; AAU115.2017 (6 August 2020).
[39] Coming back to the question as to what sentence this court should consider appropriate to impose on the appellant, when a cross-section of the sentences that have been imposed by trial courts irrespective of the tariff they have chosen to apply, are taken into account, in my view an ultimate sentence of 12 years appears to fit the crime. It is clear that the appellant had cultivated 76 cannabis sativa plants on his own farm weighed on the following day of the raid to be 84.6kg. Clearly, the appellant had engaged in cultivation of cannabis as owner-farmer and for commercial purposes as evidenced by the number of plants and weight though the weight has been of green plants and fresh leaves and not dried ones. I have considered the mitigating factors as well. This sentence addresses the concern of double counting too.
[40] The appellants’ counsel in his written submissions has conceded that the trial judge may not have erred in fixing the non-parole period too close to the sentence and therefore, there is no need to address the 04th ground of appeal.
Bandara, JA
[41] I have read the draft judgment of Prematilaka, JA and agree with his reasoning and conclusions.
Orders
(1) Appeal against sentence is allowed.
(2) Appellant’s sentence of 13 years of imprisonment with a non-parole period of 12 years is set aside.
(3) Appellant is sentenced to 12 years of imprisonment with a non-parole period of 11 years.
(4) The sentence should commence with effect from 01 April 2016.
Hon. Mr. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Mr. Justice W. Bandara
JUSTICE OF APPEAL
[1] State v Koro – Sentence [2019] FJHC 730; HAC 48 of 2019Ltk (25 July 2019) and State v Kaitani – Sentence [2018] FJHC 605; HAC 355 of 2016 (16 July 2018).
[2] State v Koroitamana – Sentence [2018] FJHC 798; HAC69 of 2017 (27 August 2018), State v Salevuwai [2018] FJHC 11; HAC 02 of 2018 (19 January 2018), State v Ravia – Sentence [2019] FJHC 381; HAC 255 of 2017S (30 April 2019) and State v Tobua – Sentence [2019] FJHC 97; HAC 140 of 2018 (19 February 2019)
[3] State v Dukubure [2017] FJHC 310; HAC076 of 2017 (28 April 2017).
[4] See for example State v Bati [2018] FJCA 762; HAC 04 of 2018 (21 August 2018) which still referred to Sulua.
[5] Tuidama v State [2016] FJHC 1027; HAA29.2016 (14 November 2016), State v Matakorovatu [2FJHC 742; HAC355.2016 (29 September 2017), Dibi v Stav State [2018] FJHC 86; HAA96.2017 (19 February 2018) and State v Nabenu [2018] FJHC 539; HAA10.2018 (25 June 2018)
[6] Raivasi v State [2020] FJCA 176; AAU119.2017 (22 September 2020) and Bola v State [2020] FJCA 177; AAU132.2017 (22 September 2020).
[7] 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), Naqeleca v State [2021] FJCA 7; AAU0093.2017 (8 January 2021) and State v Tuidama [2021] FJCA 73; AAU0003.2017 (16 March 2021).
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