State v Ratu [2016] FJHC 754; HAC083.2015S (25 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 083 OF 2015S

STATE

vs

INOKE RATU

Counsels : Mr. M. Vosawale and Ms. S. Lodhia for State
Ms. C. Choy and Ms. K. Boseiwaqa for Accused
Hearings : 15 to 19 and 23 August, 2016
Summing Up : 24 August, 2016
Judgment : 24 August, 2016
Written Reasons for
Judgment & Sentence : 25 August, 2016

WRITTEN REASONS FOR JUDGMENT AND SENTENCE

1. In a judgment delivered yesterday, the court found you guilty and convicted you on the following information:

Statement of Offence

UNLAWFUL CULTIVATION OF ILLICIT DRUGS: Contrary to Section 5(a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

INOKE RATU between 1^st day of December 2014 and 7^th day of January 2015, at Nabununikoula, Kadavu, in the Eastern Division, without lawful authority cultivated approximately 228 plants of cannabis sativa an illicit drug, weighing approximately 26.4 kilograms.

2. Assessors No. 1 and 2, yesterday found you not guilty as charged, while Assessor No. 3 found you guilty as charged. The court agreed with Assessor No. 3, found you guilty as charged, and convicted you accordingly. The court said, it would deliver its written reasons today. Below are the court’s reasons.
   
3. The law after the assessors gave their opinion is Section 237(1), (2), (4) and (5) of the Criminal Procedure Decree 2009, which reads as follows:

“...237 (1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be

(a) written down; and

(b) pronounced in open court

(5) In every such case the judge’s summing up and the decision of the court together with (where appropriate) the judge’s reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for...all purposes...”

4. In Ram Dulare, Chandar Bhan and Permal Naidu vs Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3, the Fiji Court of Appeal, said the following, on an equivalent section of the then Criminal Procedure Code:

“...In our opinion learned counsel for the appellants is confusing the functions of the assessor with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Case 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial judge. The responsibility for arriving at a decision and of giving judgment in a trial by the High Court sitting with the assessor is that of the trial judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors...”

5. In Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Fiji Court of Appeal said as follows:

“...In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only, to offer their opinions, based on their views of the facts...”

6. I have reviewed the evidence called in the trial, and I have directed myself in accordance with the Summing Up I gave the assessors yesterday. The assessors’ verdict was not perverse. It was open to them to reach such conclusion on the evidence. However, I am not bound by their opinion. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I am bound to disagree with the majority not guilty opinion of the first two assessors, and agree with the guilty opinion of the third assessor.
   
7. My reasons are as follows.
   
8. Six witnesses gave evidence for the prosecution. They were:
   • (i) Sergeant 3131 Meli Bola (PW1);
   • (ii) PC 4651 VakuruSawalu (PW2);
   • (iii) PC 5322 TimociMalanicagi (PW3);
   • (iv) Corporal 3349 Moape Tau (PW4);
   • (v) SC 2959 Anasa Kovea (PW5), and
   • (vi) Ms. Miliana Werebauinona (PW6).
     
9. One witness gave evidence for the defence, that is, the accused himself.
   
10. I had carefully considered all the evidence and had carefully compared them. I had carefully assessed the demeanour of all the witnesses. The prosecution’s case was that the accused verbally confessed to PW2 and PW3 that, the marijuana farm at Nabununikoula was his. This was when PW2 confronted him at the crime scene, and later arrested him on 7 January 2015. PW2 said, he gave the accused his legal rights during the arrest.
    
11. Furthermore, when he was caution interviewed by PW4 on 7, 9 and 10 January 2015, the accused fully confessed to the crime. I accept PW2, PW3 and PW4’s evidence that when the accused confessed to the police, he did so voluntarily and out of his own free will.
    
12. On my assessment of the credibility of the witnesses, I find all the prosecution’s witnesses to be credible. They were forthright and not evasive. I accept that the accused verbally confessed to PW2 and PW3 that the marijuana farm was his on 7 January 2015. I also accept that he confessed to the crime when caution interviewed by PW4 on 7, 9 and 10 January 2015. I accept that his confessions were true.
    
13. As to the accused’s allegation of alleged police brutality, I totally reject the same. He did not ask the Magistrate on his first appearance on 12 January 2015 for a medical examination at CWM Hospital. Neither did he ask the Magistrate for the same on 26 January 2015 and 9 February 2015. He did not ask the High Court on 27 February 2015 for the same. To me, that showed he had no injuries to complain about. Furthermore, he was very evasive when cross-examined. To me, he was not a credible witness, and thus I reject his denial of the crime.
    
14. The above are my reasons for finding the accused guilty as charged.
    
15. As for sentencing, I had taken into account the accused’s plea in mitigation, and the parties’ submissions.
    
16. The facts of this case was somewhat simple. On 7 January 2015, the police found the accused weeding his marijuana farm at Nabununikoula, Tavuki, Kadavu. The police arrested him and later uprooted 228 marijuana plants. The plants were later analysed and found to be cannabis sativa, weighing 26.4 kilograms. When caution interviewed by police, he admitted unlawfully cultivating cannabis sativa at the material time.
    
17. The maximum sentence for “Unlawful Cultivation of cannabis sativa plants, an illicit drug”, is a fine of $1,000,000 or life imprisonment or both (section 5 (a) of the Illicit Drugs Control Act 2004). Society, through Parliament, viewed the offence seriously. In Kini Sulua, Michael Ashley Chandra v State [2012] Fiji Law Reports, Volume 2, page 111, at paragraph 115 on page 143, the majority in the Court of Appeal laid down the following sentence guideline:
    
    • (i) Category 1: possession of 0 to 100 grams of cannabis sativa – a non-custodial sentence to be given, for example, fines, community service, counselling, discharge with a strong warning, etc. Only in the worst cases, should a suspended prison sentence or a short sharp prison sentence be considered.
      
    • (ii) Category 2: possession of 100 to 1,000 gram of cannabis sativa. Tariff should be a sentence between 1 to 3 years imprisonment, with those possessing below 500 grams, being sentenced to less than 2 years, and those possessing more than 500 grams, be sentenced to more than 2 years imprisonment.
      
    • (iii) Category 3: possessing 1,000 to 4,000 grams of cannabis sativa. Tariff should be a sentence between 3 to 7 years, with those possessing less than 2,500 grams, be sentenced to less than 4 years imprisonment, and those possessing more than 2,500 grams, be sentenced to more than 4 years.
      
    • (iv) Category 4: possessing 4,000 grams and above of cannabis sativa. Tariff should be a sentence between 7 to 14 years imprisonment.
      
18. Although the above sentence guidelines apply to possession of cannabis sativa drugs, they also apply to unlawful cultivation of cannabis sativa plants. Please, refer to paragraph 116 and 117 of Kini Sulua, Michael Ashley Chandra v State (supra) in pages 143 and 144. The weight of the drugs in this case being 26.4 kilograms, it makes the case a Category 4 case. The tariff is therefore a sentence between 7 to 14 years imprisonment. However, the final sentence will depend on the aggravating and mitigating factors.
    
19. In this case, the aggravating factor, was as follows:
    • (i) The amount of illicit drugs that you cultivated were huge, that is, it weighed 26.4 kilogram. This was about five times the amount of drugs found on Kini Sulua in the case mentioned above. Kini Sulua got a sentence of 8 years imprisonment for possessing 5.2 kilograms of cannabis sativa.
      
20. The mitigating factors were as follows:
    • (i) At the age of 25 years old, this was your first offence;
    • (ii) You were remanded in custody for approximately 1 year 8 months.
      
21. I start with a sentence of 12 years imprisonment. I add 4 years for the aggravating factors, making a total of 16 years imprisonment. I deduct 1 year 8 months for time already served, while remanded in custody, leaving a balance of 14 years 4 months. For being a first offender, I deduct 1 year 4 months, leaving a balance of 13 years imprisonment.
    
22. Mr. Inoke Ratu, for unlawfully cultivating 26.4 kilograms of cannabis sativa in Kadavu between 1 December 2014 and 7 January 2015, I sentence you to 13 years imprisonment, with a non-parole period of 12 years imprisonment, effective forthwith.
    
23. Pursuant to Section 155(1)(b) and (3) of the Criminal Procedure Decree 2009, I order the destruction of the 228 marijuana plants which were tendered as Prosecution Exhibit No. 2, because the same had decayed and deteriorated to such an extent that it may be dangerous to human health. The destruction is to be carried out by the Office of the Chief Registrar, with the assistance of the Police.
    
24. Mr. Inoke Ratu, you have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused : Legal Aid Commission, Suva.