State v Koro - Sentence [2019] FJHC 730; HAC48.2019Ltk (25 July 2019)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Crim. Case No: HAC 48 of 2019

BETWEEN:
STATE

PROSECUTION

A N D:
EMORI KORO

ACCUSED PERSON

Counsel : Ms. N. Navia for the State
: Ms. M. Ratidara for Accused

Date of Sentence : 25^th July 2019

SENTENCE

1. Mr. Emori Koro, you are being charged with one count of Unlawful Cultivation of Illicit Drugs, contrary to Section 5 (a) of the Illicit Drugs Control Act, which carries a maximum penalty of life imprisonment or fine not exceeding $1,000,000 or both, and one count of Unlawful Possession of Illicit Drugs, contrary to Section 5 (a) of the Illicit Drugs Control Act which carries a maximum penalty of life imprisonment or fine not exceeding $1,000,000 or both. The particulars of the offences are that:
   

COUNT 1
Statement of Offence

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

Particulars of Offence

EMORI KORO between the 1^st day of November 2018 and the 21^st day of February 2019 at Navosa in the Western Division without lawful authority, cultivated 196 plants of Cannabis Sativa, an illicit drug, weighing 40.17 kilograms.

COUNT 2

Statement of Offence

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

Particulars of Offence

EMORI KORO on the 21^st day of February 2019 at Navosa in the Western Division without lawful authority possessed 15.5 grams of Cannabis Sativa, an illicit drug.

2. You pleaded guilty to these two offences on the 10th of May 2019. Satisfied by the fact that you have fully comprehended the legal effect of your plea and your plea was voluntary and free from influence, I now convict you to these two counts as charged.
   
3. According to the summary of fact, which you have admitted in open court, you have cultivated 196 Cannabis Sativa plants in a farm which was located at a distance place from your house. Moreover, you were in the possession of dried leaves of cannabis sativa which were weighed 15.5 grams.
   
4. Cannabis is the most commonly used psychoactive substance in the world, which carries myriad of adverse and negative effects, both personally and socially, short and long term and also physically and psychologically. Cannabis, commonly known as marijuana, ganja or weeds are produced from Cannabis plants. The three main common forms of cannabis are herbal cannabis, dried leaves and flowering tops.
   

Purpose of the Sentence

5. The cultivation of cannabis plants in a substantive scale has become a threat to the society, as it has the potentiality to furtherance the availability of cannabis in the market, making it easy to the addicts and users to have access to it. Therefore, the cultivation of cannabis plants is a serious offence. Thus the purpose of this sentence is founded on the principle of deterrence and protection of the community. I am mindful of the principle of rehabilitation, however, it is my opinion that the need of deterrence outweighs the principle of rehabilitation.
   

Tariff

6. The Fiji Court of Appeal in Sulua v State [2012A 33; AAU0093U0093.2008 (31 May 2012) has expounded a sentencing guideline for the possession of cannabis, where it was that:
   
   1. 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.

7. Having outlined the above guideline of the tariff to the possession of cannabis sativa, his Lordship Justice Temo further held that:
   

“Section 5(a) of the Illicit Drugs Control Act 2004 treated the verbs "acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug" equally. All the verbs are treated equally. In other words, all the offending verbs or offending actions are treated equally. "Supplies, possesses, manufactures and cultivates" are treated equally, and none of the offending actions are given any higher or lower standing, as far as section 5(a) of the Illicit Drugs Control Act 2004 was concerned. It follows that the penalties applicable to possession, must also apply to the offending verbs of "acquire, supplies, produces, manufactures, cultivates, uses or administers". That is the will of Parliament, as expressed in the words of section 5(a) of the Illicit Drugs Control Act 2004. Consequently, the four categories mentioned above, apply to each of the verbs mentioned in section 5(a) of the 2004 Act mentioned above. The weight of the particular illicit drug will determine which category the case falls under, and the applicable penalty that will apply. It is also suggested that, the application of the four categories mentioned in paragraph 115 hereof to section 5(a) of the Illicit Drugs Control Act 2004, be extended to the offending verbs or offending actions in section 5(b) of the Illicit Drugs Control Act 2004. This will introduce some measure of consistency in how sentences are passed for offendings against section 5(a) and 5(b) of the Illicit Drugs Control Act 2004. This will enhance the objective and purpose of the 2004 Act, as highlighted in paragraph 111 hereof.”

8. Accordingly, the above guideline of tariff for the possession of cannabis has been extended to the other offending verbs as stipulated under Section 5 of the Illicit Drugs Control Act.
   
9. Subsequent to the decision of Sulua (supra) several decisions in the High Court have discussed the scope of the applicability of Sulua guidelines in sentencing the offenders to the offence of cultivation of cannabis sativa plants.
   
10. Justice Perera in Tuidama v State [2016] FJHC 1027; HAA29.2016 (14 November 2016) has discussed the practical difficulties in applying the tariff guidelines of Sulua in respect of cultivation of the plants of Cannabis Sativa, where his Lordship found that:
    

“My attention was drawn to the fact that in Sulua (supra), the court dealt with cannabis sativa that was in the form of dried leaves. The weight that was used to identify the four different categories in the majority decision of that case therefore is the weight of dried cannabis sativa leaves.

The quality and the state of the cannabis sativa involved in this case at the time the weight was recorded is different from that of Sulua’s case. According to the Government Analyst Report available in the Magistrate Court Case Record in this case, the weight recorded was of 13 ‘green’ plants of cannabis sativa. Therefore, the weight (2.68kg) mentioned in the charge against the appellant seems to include the weight of the stems and the weight of water content in the plants. Further, the report does not indicate whether or not the roots were excluded. Therefore, this weight of 2.68kg mentioned in the charge in this case cannot be used as the basis to decide the sentencing tariff in line with the Sulua case as the categorisation in the said case is based on the dry weight of cannabis sativa leaves. It is very unlikely that this offence would fall under the 3^rd category in Sulua’s case if the dry weight of the leaves in the 13 plants was taken into account.

In my view, if weight is to be used as the decisive factor in forming a general tariff for an offence under section 5 of the Illicit Drug Control Act in relation to cannabis sativa, it is necessary that regulations are also put in place pertaining to the nature and state of the drug at the time the weight considered for sentencing should be recorded.

Having considered all the circumstances, I am inclined to take the view that the categorisation set out in the case of Meli Bavesi v State [2004] FJHC 93; HAA 0027.2004 is the appropriate method to identify the seriousness of offending for the purpose of sentencing in cases of this nature that involves cultivation of cannabis sativa. According to the categorisation provided in Bavesi (supra), the tariff is determined based on the scale of the cultivation”

11. Having made certain adjustments to the categorisation as set out in Meli Bavesi v State (2004) FJHC 93; HAA 0027.2004, Justice Perera has found the following guideline as the appropriate sentencing tariff to the offence of cultivation of cannabis sativa plants, where his Lordship held that:
    

“Accordingly, in my view, the tariff for cultivation of cannabis sativa should be as follows:

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;

2. Small scale cultivation for a commercial purpose with the objective

of deriving a profit - 3 to 7 years imprisonment;

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

12. Justice Madigan in Dibi v State [2018] FJHC 86; HAA96.2017 (19 February 2018) found that the sentencing guidelines of Sulua (supra) do not apply to the offence of cultivation of Cannabis Sativa, where Madigan J said that:
    

“The tariffs for possession and dealing in illicit drugs have been set by the Court of Appeal in Kini Sulua and anor AAU0093 of 2003 (31 May 2012), and of course these guidelines should continue to be used but not for sentences involving cultivation.

Cultivation of illicit drugs is a far more serious offence than mere possession in that the latent risk to consumers and potential consumers is dramatically increased.”

13. Madigan J in Dibi (supra) has then expounded a set of tariff that:
    
    1. Cultivating less than 5 plants of a weight less than 100 grammes of narcotic,

a non-custodial sentence at the discretion of the sentencing tribunal.

2. Cultivating 5 to 50 plants of a weight of narcotic between 100 to 1000

grammes, a term of 1 to 6 years.

3. More than 50 plants with weight of over 1000 grammes, imprisonment of 6

years or more.

14. Justice Goundar in State v Vuicakau [2018] FJHC 12; HAC01.2018 (19 January 2018) has found that that the number of plants and maturity of the plants are relevant in respect of the offence of cultivation and not the weight, where Goundar J held that:
    

“I am further guided by the majority decision of the Court of Appeal in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) that recommends a tariff of 7 to 14 years imprisonment for unlawful possession of more than 4 kg of Cannabis Sativa. But I am careful in determining your culpability solely on the weight of the illicit drug. Weight of Cannabis Sativa plants can be affected by whether the plants are in green or dried state and whether the stems and roots were detached before the weight was determined. In the case of cultivation, it is not the weight but the number of plants and maturity of the plants that are relevant.”

15. Justice Aluthge in State v Nabenu [2018] FJHC 539; HAA10.2018 (25 June 2018) has discussed the practical difficulties in applying the Sulua guidelines in sentencing the offenders to the offence of cultivation of cannabis sativa plants. Aluthge J said that:

“In the process of establishing the tariff in Sulua (supra), the Court had considered about 50 previous cases involving possession of cannabis sativa. Temo JA, with the concurrence of K.P. Fernando JA, extended the ambit of the tariff established for possession to other types of offending under Section 5(a) and stated:

“Section 5(a) of the Illicit Drugs Control Act 2004 treated the verbs "acquires, supplies, possesses, produces, manufactures, cultivates, uses or administers an illicit drug" equally. All the verbs are treated equally. In other words, all the offending verbs or offending actions are treated equally. "Supplies, possesses, manufactures and cultivates" are treated equally, and none of the offending actions are given any higher or lower standing, as far as section 5(a) of the Illicit Drugs Control Act 2004 was concerned.”

It appears that it is on this very basis that the tariff established for possession was extended to other types of offending under Section 5(a) of the IDCA, including cultivation.

The Section covers a wide range of illicit drugs from less harmful drugs like cannabis sativa to most dangerous hard drugs like heroine and also a wide range of criminal acts such as acquisition, supply, possession, production, manufactures, cultivation, etc. Therefore, the legislature in its wisdom has prescribed the maximum sentence of life imprisonment, leaving the discretion with the judiciary to select the sentence appropriate to each individual case, considering the nature of the drug and circumstances of the case.

It is my considered view that possession and cultivation of cannabis are two distinct offences and therefore should be treated differently when imputing the criminal liability and punishment. As correctly observed by Madigan J in Emori Dibi (supra), the offence of cultivation of cannabis sativa is a far more serious offence than that of mere possession, and therefore the need to apply a different tariff in cultivation cases is highly warranted notwithstanding the fact that both offences carry the same maximum penalty under the IDCA, that is life imprisonment.”

16. Having distinguished the facts of Sulua (supra) Aluthge J in State v Nabenu (supra) has adopted the tariff outlined in Sailosi Tuidama (supra) with certain adjustments, where Aluthge J held that:
    

“Therefore, having distinguished the facts in Sulua, I prefer to adopt the tariff proposed by Perera J in Sailosi Tuidama (supra) for the offence of cultivation of cannabis sativa with slight modifications to accommodate Madigan J’s concern for planters of small number of cannabis plants. Accordingly, the tariff for cultivation of cannabis sativa should be as follows:

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.

100. 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.

At step two of the sentencing process the sentencing court can take into account the weight of the green plants to aggravate or mitigate the sentence.”

17. Accordingly, I find the number of plants involved in this matter comes under the category D as stipulated in State v Nabenu (supra). In respect of the second count of possession of 15.5 grams of Cannabis Sativa, the relevant tariff is the category 1 as stipulated in Sulua v State (supra).
    

Level of Harm and Culpability

18. Having taken into consider the number of plants involinvolved in this matter, I undoubtedly find that the purpose of this cultivation was for a commercial than personal usage. Therefore, there is no doubt that these number of plants had the capacity of yielding potentially a substantial quantity of cannabis into the market. Accordingly, I find the level of harm and culpability in this offending are substantially high.
    

Aggravating Facts

19. These plants had been cultivated in a place distance to your house. Therefore, I can safely form an inference that this cannabis sativa plantation was cultivated in the place, away from human inhabitation in order to conceal it existence from the others. Therefore, I find this was a well-planned cultivation. In view of the potential capacity in producing a large quantities of cannabis sativa, undoubtedly, such large amount of illicit drugs had the potential of generating substantial amount of illegally gain monetary profits. I find these facts as aggravating circumstances of this offending.
    

Mitigating Facts

20. The learned counsel for the defence in her submissions in mitigation, submitted that you are 36 years old and planning to get married by the end of this year. However, these personal and family circumstances has no much mitigatory value.
    
21. You are a first offender. Therefore, you are entitled for a discount for your previous good character.
    
22. You pleaded guilty to these two offences at the early stages of this proceedings. Therefore you are entitled for a substantive discount for your early plea of guilty and the remorse.
    
23. Having taken into consideration the above discussed reasons, I sentence you to a period of 8 years imprisonment to the first count of Unlawful Cultivation of Illicit Drugs and a period of 6 months imprisonment to the second count of Unlawful Possession of Illicit Drugs.
    
24. Having considered the purpose of this sentence that is founded on the principle of deterrence and protection of the community from the offenders of this nature, I find six (6) years of non-parole period would serve the said purpose.
    

Head Sentence

25. Accordingly, Mr. Emori Koro, I sentence you to a period of eight (8) years of imprisonment to the offence of “Unlawful Cultivation of Illicit Drugs” contrary to Section 5 (a) of the Illicit Drugs Control Act 2004 and a period of six (6) months of imprisonment to the offence of “Unlawful Possession of Illicit Drugs” contrary to Section 5 (a) of the Illicit Drugs Control Act 2005. Both sentences to be served concurrently. Furthermore, you are not entitled for any parole for a period of six (6) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    

Actual period of Sentence

26. You have been in remand custody for this case since 21st of February 2019 as you were not granted bail by the court. Accordingly, you have been in remand custody for this matter approximately for a period of five (5) months. In pursuant of Section 24 of the Sentencing and Penalties Act, I consider the period of five (5) months as a period of imprisonment that have already been served by you.
    
27. Accordingly your actual sentencing period is seven (7) years and seven (7) months of imprisonment period, with five (5) years and seven (7) months of non-parole period.
    
28. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R.D.R.T. Rajasinghe

Judge

At Suva
25^th July 2019

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Defence.