Raleba v State [2020] FJHC 556; HAA027.2020 (23 July 2020)

IN THE HIGH COURT OF FIJI

AT SUVA

IN THE CENTRAL DIVISION

APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 27/ 20

(Nasinu Magistrates Court Criminal Case NO. 139/20)

BETWEEN

SAMUELA RALEBA

Appellant

AND
STATE

Respondent

Counsel: Appellant in Person

Ms S. Swasthika for Respondent

Date of Hearing: 9 July 2020

Date of Judgment: 23 July 2020

JUDGMENT

(Possession of Small Quantity of Methamphetamine Less Than 1 g)

1. This is a timely appeal filed by the Appellant against sentence.
   
2. The Appellant was charged in the Magistrates Court at Nasinu with one count of possession of 0.146 g of Methamphetamine contrary to Section 5 (a) of the illicit Drugs Control Act No. 9 of 2004. The Appellant pleaded guilty to the charge on his own volition and admitted the summary of facts read in court. Upon being satisfied that the guilty plea was unequivocal, the Learned Magistrate convicted the Appellant sentenced him to an imprisonment term of 21 months with a non-parole period of 23 months.
   
3. The Appellant filed a petition of appeal against the sentence on the following grounds:
   

Grounds of Appeal

1. That the learned Magistrate failed to consider that the accused got none previous conviction of drugs.
2. That the learned Magistrate passed a sentence which was very harsh and excessive.
3. That the learned Magistrate erred in law and in fact imposed greater sentence in sentencing based on the fact the illicit drugs apprehended was for commercial purpose.
4. That the learned Magistrate passed a starting point of 38 months was excessive.
   
4. This Court will approach an appeal against sentence using the principles set out in House v The King [1936] HCA 40; (1936) 55 CLR 499 and adopted in Kim Nam Bae v The State Criminal Appeal No.AAU0015 at [2]. Appellate courts will interfere with a sentence if it is demonstrated that the trial judge made one of the following errors:
   

(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 considerations.

5. Summary of facts
   

On the 10^th day of March 2020, SC5182 Josua Yavala (A-1), 39 yrs, Police Officer of Naitutu Village, Tailevu together with the Eastern Division Taskforce Unit brought in under arrest one Samuela Raleba (B-1), 33 yrs, unemployed of Vunivivi, Nausori for being in possession of 5-zip lock plastics containing white crystals believed to be methamphetamine.

Briefly on the above mentioned date at about 1215hrs SC 5182 Josua (A-1) whilst at Beat Patrol along Syria Patrol when saw (B-1) moving away from (A-1) and acting in a suspicious manner. Then (A-1) approached him that he will be searched. Upon searching (B-1) and then escorted (B-1) to Nausori Police Station.

(B-1) was then interviewed under caution and the 5 zip lock clear plastics containing white crystals were taken for analysis at the Forensic Department-Chemistry Lab in which the result tested positive for Methamphetamine, weighing at 0.1464 grams.

(B-1) was interviewed under caution and was charged for the offence of Found in Possession of Illicit Drug contrary to Section 5(a) of Illicit Drug control Act of 2004.

Analysis

6. In sentencing offenders, the courts must have regard to the proportionality principle entrenched in Section 11(1) of the Constitution and the provisions of the Sentencing and Penalties Act 2009 (SPA). The SPA requires the courts to have regard to the non-exhaustive list of considerations set out in Section 4(2) which include the maximum penalty prescribed for the offence, the current sentencing practice and the applicable guidelines issued by the courts.
   
7. The Sentencing and Penalties Act does not provide any specific guideline as to what methodology should be adopted by the sentencing court in computing the sentence. Subject to the current sentencing practice and terms of any applicable guideline judgment, the SPA confers a wide discretion on the sentencing judge/magistrate with a degree of flexibility as to the sentencing methodology, which might often depend on the complexity or otherwise of every case. [Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015) at 48]
   
8. The courts in Fiji by and large adopt what is generally known as the “two-tiered” process of reasoning as opposed to "instinctive synthesis” process. In this process, the sentencer, at tier one 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. At this stage, a starting point is fixed. At tire two, the sentencer considers all the subjective circumstances of the offender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence). It appears that the Learned Magistrate has adopted the two- tiered sentencing methodology in this case.
   
9. The Learned Magistrate cited the maximum punishment prescribed in Illicit Drugs Control Act 2004. The maximum sentence for Section 5(1)(a) and 5(b) offences is a fine not exceeding $1,000,000 or imprisonment for life or both. The maximum penalty available reflects the seriousness of the offence in terms of the potential harm caused by the illicit drugs.
   
10. The Learned Magistrate has directed his mind to the guideline judgments issued by the courts to identify the established tariff. He has cited two such judgments, State v Vakula [2017] FJHC 963; HAC247.2016S (11 August 2017) and Abourizk v State [2019] FJCA 98; AAU0054.2016 (7 June 2019), former pronounced by the High Court and later by the Court of Appeal. The Learned Magistrate was eventually guided by Abourizk.
    

11. In pronouncing the guidelines, the Court of Appeal said at [145]:
    

“Having considered all the material available and judicial pronouncements in Fiji and in other jurisdictions, I set the following guidelines for tariff in sentences for all hard/major drugs (such as Cocaine, Heroin, and Methamphetamine etc.). These guidelines may apply across all acts identified under section 5(a) and 5(b) of the Illicit Drugs Control Act 2004 subject to relevant provisions of law, mitigating and aggravating circumstances and sentencing discretion in individual cases”

Category 01: – Up to 05g – 02 ½ years to 04 ½ years’ imprisonment.

Category 02: – More than 05g up to 250g - 03 ½ years to 10 years’ imprisonment.

Category 03:– More than 250g up to 500g - 09 years to 16 years’ imprisonment.

Category 04:– More than 500g up to 01kg – 15 years to 22 years’ imprisonment.

Category 05 – More than 01kg - 20 years to life imprisonment.

12. On the basis of the weight of Methamphetamine (0.146g) found in the possession of the Appellant, the Learned Magistrate identified Category 1 above as the applicable band, which is reserved for 5 g or less.
    
13. The starting point picked by the Learned Magistrate was 38 months from the upper middle range of the tariff. The widely accepted practice in Fiji is that the starting point should be picked from the lower or middle range of the tariff and the final sentence should fall within the tariff Koroivuki v State (2013) FJCA 15 (5 March 2013). In selecting the starting point the courts must have regard to the seriousness of the offence which is gauged in terms of the maximum sentence prescribed by the statute, the culpability factors of the offending and the impact or harm caused to the victim or/and potential harm to the society.
    
    14. Technically speaking, the Learned Magistrate was not wrong in applying the tariff band set by the Court of Appeal as he was bound to follow and have regard to the guidelines issued by the Court of Appeal [Ss. 4 2(b), 6 (2) of the SPA]. I am however of the view that by ‘mechanistic application’ of the Abourizk bands to the facts presented in court, the Learned Magistrate ended up reaching a disproportionately harsh sentence. I proceed to give reasons in the following paragraphs to justify my conclusion.
        
    15. In Abourizk, the State, in terms of sections 06, 07, 08 and 09 of the SPA, sought a guideline judgment to deal with sentencing on ‘Cocaine offences’. The Court remarked at [123] that, due to lack of guidelines, sentencing decisions in the past on Cocaine offences led to some degree of inconsistency resulting in regular appeals. The issuing of the judgments has been in response to concerns about consistency.
        
16. Although the guidelines were specifically sought in respect of Cocaine offences, the Court though it fit to set guidelines / tariffs in sentences for all hard/major drugs (such as Cocaine, Heroin, and Methamphetamine etc.) and made them applicable across all acts identified under section 5(a) and 5(b) of the Illicit Drugs Control Act 2004.
    
    17. Unlike similar statutes in other jurisdictions such as New Zealand and England, the Illicit Drugs Control Act 2004 does not classify the illicit drugs into Class A, Class B etc. It is the courts that have done the classification in Fiji. Cocaine, Heroin, and Methamphetamine are now classified as ‘hard drugs’ apparently based on the potential harm they could pose to the society.
        
    18. Cocaine and Methamphetamine have been considered as belonging to one class at the top of the drugs hierarchy and the courts in Fiji have adopted a common approach for both drugs in sentencing. In State v Nikolic HAC115 of 2018[LTK]: 8 March 2019 [2019] FJHC 167 Gounder J observed [21]:
        

‘To maintain consistency in the approach to sentencing I adopt the New Zealand guidelines for importation of methamphetamine for importation of cocaine with some caution that the guidelines are only a yardstick. ......’

19. In Abourizk, the Court appears to have justified a common application of the tariff bands it formulated to all ‘hard drugs-’ Cocaine, Heroin, and Methamphetamine etc. because a similar approach had been taken in New Zealand with regard to Cocaine and Methamphetamine. The Court at [141] noted that although the (Fatu) guidelines were given for methamphetamine, its application has been adopted for cocaine cases.
    

“In R v Dixon [2017] NZHC 920 (9 May 2017) the sentencing court stated as follows.

‘[31] This constitutes guidance for Class A drug offending, although I am aware as just discussed, of the Court’s caution that it was intended to apply only to methamphetamine offending. However, as there is no tariff case for the importation of cocaine, the sentencing bands are instructive. ......

[32] Cocaine is not treated as any more, or less evil, than any other Class A drugs. I have no evidence to draw a distinction. While sentences for large scale cocaine importation are less frequent than for methamphetamine, they reflect the same determination to deter the importation of drugs for commercial dealing, denounce such offending, and there is a fundamental element in those respects, and in the sentences imposed, of protection of the public. The notion that cocaine is a party drug which somehow carries less sting in its effect and the way the law should approach it, must be put aside.

[33] While there are differences between the different drugs within Class A, and drug offending in terms of quantity, potency and effect on the human body and brain, and on society, there is no basis for me to apply a different tariff for importation of cocaine in particular.”

20. However, it should be noted that each ‘hard drug’ has a harm component unique to it which a sentencing court cannot ignore. National Institutes of Health; U.S. Department of Health and Human Services in its report published in 2019 describes the main differences between man-made Methamphetamine and plant derived Cocaine.
    

“Methamphetamine molecule is structurally similar to amphetamine and to the neurotransmitter dopamine, a brain chemical that plays an important role in the reinforcement of rewarding behaviours, but it is quite different from cocaine. Although these stimulants have similar behavioral and physiological effects, there are some major differences in the basic mechanisms of how they work. In contrast to cocaine, which is quickly removed from and almost completely metabolized in the body, methamphetamine has a much longer duration of action, and a larger percentage of the drug remains unchanged in the body. Methamphetamine therefore remains in the brain longer, which ultimately leads to prolonged stimulant effects” (National Institutes of Health; U.S. Department of Health and Human Services https://www.drugabuse.gov/download/37620/methamphetamine-research-reort.pdf?v=f1a384a2d338c9e3b4f96f0e84c6e274.

21. As I said before, Illicit Drugs Control Act 2004 does not distinguish between different classes of illicit drugs. The sections universally apply to various types of drugs listed in Schedule I which includes less harmful drugs like cannabis sativa and most dangerous drugs like methamphetamine. Nor does it differentiate between various types of offending mentioned in the sections -acquisition, supply, production, manufacture, cultivation, use or administration and any other drug related dealings. The prescribed sentence applies to all classes of illicit drugs and all types of offending. The finite bandwidth prescribed by the Illicit Drugs Control Act is vast, the range is zero to life.
    
22. It has to be accepted that there is a huge difference in culpability between the case of a person who is found to be in possession of cannabis sativa for personal/ recreational use and the case of a mammoth importer or manufacturer of Methamphetamine with a million-dollar annual turnover. Each in theory is liable to imprisonment for life. The offence is complete by mere possession or by possession for supply or any other purpose. The maximum penalty of life imprisonment therefore creates some difficulty. It is a matter of some regret that Parliament had not given greater guidance as to the level of penalty. This posed a difficulty for sentencing judges. A rational judicial thinking dictates that there must be a logical and consistent sentencing scale between the most serious of cases (attracting life imprisonment) and the least serious of cases.
    
23. Having taken cognisance of this fact, the judiciary has made certain attempts from time to time to formulate sentencing guidelines / tariffs for illicit drugs offences in Fiji. First such attempt was made by the Court of Appeal in Kini Sulua, Michael Ashley Chandra v State [2012] Fiji Law Report, Volume 2, pages 111 to 147.
    
24. In Sulua, the majority in the Court of Appeal formulated guidelines for sentencing judges to deal with offences coming under Section 5(a) and 5(b) of the Illicit Drugs Control Act 2004. In interpreting Section 5(a) and 5(b), the majority said the following:
    

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 offending 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”.

25. At a quick glance, the guidelines seemed to apply to all classes of illicit drugs listed in Schedule I of the Illicit Drugs Control Act 2004 and to all types of offending (acts) described in Sections 5(a) and 5(b). However the Court was dealing with possession of dried marijuana or cannabis sativa although the application of the guidelines was extended to other types of offending. In State v Vakula [2017] FJHC 963; HAC247.2016S (11 August 2017), Temo J who wrote the majority decision in Sulua later clarified that Sulua guidelines are meant only to resolve the cannabis sativa related drug problem in Fiji [Paragraph 3].
    
26. The Court in Abourizk confirmed that the Sulua guidelines are only for cannabis offences and not adequate to deal with more dangerous and destructive illicit drugs such as cocaine, heroin and methamphetamine [Paragraph 130]. The Court at [130] observed:
    

“However, for the purpose of sentencing it is only logical for the courts to be able to make necessary distinctions among different types of illicit drugs. Sulua has already stated that its guidelines would apply to all physical acts referred to in section 5(a) of the Illicit Drugs Control Act 2004. But, those guidelines are only for cannabis offences and not adequate to deal with more dangerous and destructive illicit drugs such as cocaine, heroin and methamphetamine.

27. Marijuana or Cannabis Sativa was excluded from the application of Abourizk bands by the Court of Appeal. However, the Court observed that ‘These guidelines may apply across all acts identified under section 5(a) and 5(b) of the Illicit Drugs Control Act 2004 subject to relevant provisions of law, mitigating and aggravating circumstances and sentencing discretion in individual cases’. The Court’s direction that the Abourizk guidelines should (except for Methamphetamine) apply across all acts identified under section 5(a) and 5(b) of the Illicit Drugs Control Act 2004 appears to be based on the same rationale articulated (quoted above at paragraph 23) by the majority decision in Sulua.
    
28. However, in the following paragraphs, I argue and give reasons to justify the hypothesis that mechanistic application of Abourizk tariff bands (more specifically category 1 band) to the offences concerning mere possession of small quantities of Methamphetamine for personal use or supply on non-commercial basis would produce unjustly harsh punishments.
    
29. In the pre Abourizk era, the courts in Fiji followed the New Zealand sentencing regime established in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) for all types of Methamphetamine related offences. The turning point was State v Vakula [2017] FJHC 963; where the High Court accepted the suggestion made by the State that the guideline judgment for methamphetamine-related offending in New Zealand R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) be adopted in Fiji. In Vakula, Temo J observed at [13].
    

“In my view, given the above, as an interim measure, we need to adopt the sentencing guidelines expounded in R v Fatu (supra) above. Methamphetamine, as an illicit drug, is new to Fiji. However, the New Zealand courts had been dealing with this problem for a while, and it was only fair in the public interest, that we learn from their experience and adopt their sentencing guidelines in Fiji, pending a review in the future by our Superior Courts.

30. The Court has accepted that the New Zealand’s Approach is conducive and attractive to the Fijian context. This endorsement is further supported by the fact that the SPA of Fiji and the Sentencing Act of New Zealand share many similarities, including the maximum punishment of life imprisonment, while the courts in both countries adopt the same -‘two tired’ sentencing methodology. In the following paragraphs I would further argue in favour of the New Zealand’s approach, as it currently stands, to support this judgment since it is particularly relevant to the matter at hand.
    
31. The position in Fiji vis-a-vis Methamphetamine was further confirmed by Goundar J in State v Nikolic HAC115 of 2018[LTK]: 8 March 2019 [2019] FJHC 167 where His Lordship said at [17]
    

“The approach to sentencing in cases of methamphetamine is consistent. For methamphetamine, the courts are following the New Zealand guidelines set by the New Zealand Court of Appeal in R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72. The courts in Fiji have adopted those guidelines saying the same maximum penalty of life imprisonment is applicable in both jurisdictions (State v Vakula [2017] FJHC 963; HAC247.2016S (11 August 2017), State v Nand [2018] FJHC 499; HAR03.2017 (12 June 2018), State v Sukanakoniferedi - Sentence [2019] FJHC 115; HAC129.2014 (22 February 2019).

32. It should however be noted that, in Fatu, the New Zealand Court of Appeal established the guidelines for sentencing of the supply, importation and manufacturing of methamphetamine and not for mere possession. Since 2005, sentencing for these offences in New Zealand had been based on Fatu guidelines. The Fatu decision was prompted by the reclassification of Methamphetamine under the Misuse of Drugs Act 1975 from a Class B controlled drug to a Class A controlled drug. Previously the importation, manufacture or supply of methamphetamine had been subject to a maximum penalty of 14 years’ imprisonment, the new maximum was imprisonment for life. The Fatu decision acknowledged that the courts were required to respond to the reclassification of methamphetamine and formulated guidelines in the form of four separate sentencing bands. The categorisation was exclusively based

on quantity.

33. Accordingly, in cases involving the supply of methamphetamine, the Fatu sentence guidelines were as follows:
    

“ (a) Band one–low-level supply (less than 5g)– two years’ to four years imprisonment.

(b) Band two –supplying commercial quantities (5g to 250g) – three years to nine years imprisonment.

(c ) Band three – supplying large commercial quantities (250g to 500g) – eight years to 11 years imprisonment.

(d) Band four – supplying very large commercial quantities (500g or more) – ten years to life imprisonment.

34. In cases involving the importation of methamphetamine, the sentence guidelines were as follows:

“...(a) Band one – low-level importing (less than 5g) – two years 6 months to four years six months imprisonment.

(b) Band two –importing commercial quantities (5g to 250g) – three years to six months to ten years imprisonment.

(c) Band three – importing large commercial quantities (250g to 500g) – 9 years to 13 years imprisonment.

(d) Band four – importing very large commercial quantities (500g or more) – 12 years to life imprisonment.

The indication, in cases where small quantities of methamphetamine have been imported for personal consumption, it is open to sentencing Judges to treat band one as not applicable. We emphasise that these are otherwise applicable to all who import methamphetamine, including those whose roles areas mules. Obviously the more significant the role of the offender in any importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band ...” (page 81)

35. In cases involving the manufacturing of methamphetamine, the sentence guidelines were as follows:
    

“... (a) Band one – not applicable for reasons given in para (42).

(b) Band two –manufacturing up to 250g – 04 years to 11 years’ imprisonment.

(c) Band three – manufacturing large commercial quantities (250g – 500g) – 10 years’ to 15 years’ imprisonment.

(d) Band four – manufacturing very large commercial quantities (500g or more) – 13 years’ to life imprisonment.”

36. As I said before, the Fatu guidelines only contemplated importation, manufacture or supply of Methamphetamine and they do not provide helpful guidance to deal with possession of small quantities of Methamphetamine, which is the case in the present case. It should be noted that the Court in Fatu emphasised that ‘it is open to sentencing Judges to treat band one as not applicable’ in cases where small quantities of methamphetamine have been imported for personal consumption and there is a complete absence of commerciality.
    
37. In the process of formulating the guidelines for Fiji, the Court of Appeal comprehensively considered the sentencing guidelines issued in other jurisdictions, specifically, Australia, New Zealand and the Guidelines issued by the UK Sentencing Council. The Court rejected two grid matrix (involving quantity bands and role categories) devised by the United Kingdom Sentencing Council and structured the sentencing tariff bands solely on quantity, the approach taken in Fatu.
    
38. The Court’s justification for quantity based approach appears to be its inclination to promote deterrence and the caution it had on Fiji’s lack of ‘highly developed investigation mechanism’. The Court also found band 4 in New Zealand tariff scheme far too wide and a new band in between was introduced by subdividing it to create a new band five, for quantities in excess of 500g. The Court observed:

[144]. “The State has submitted that Fiji needs a structured, judicial-led approach to sentencing for hard drug offences and it should be primarily based on quantity rather than the role of individual offenders so as to deter offenders at all levels of illicit drugs operations and band 4 in New Zealand tariff scheme may be far too wide and therefore the introduction of another band in between would be useful for trial courts

[138]....The proper working of this system needs highly developed investigation mechanism which lesser developed countries could ill afford. The tariff in general also appears to be more lenient to act as real deterrence to prospective offenders targeting more vulnerable countries. In my view, the UK approach does not suit Fiji at this point of time”

39. In the process of formulating sentencing tariff bands in Fiji for Illicit drugs (except for Marijuana), the Court in Abourizk has basically agreed with the ‘prosecutor’s perspective’ presented to it by the Office Director of Public Prosecution (ODPP). The Court at [144] observed:
    

“The State has submitted that Fiji needs a structured, judicial-led approach to sentencing for hard drug offences and it should be primarily based on quantity rather than the role of individual offenders ........

40. The Court has accepted that the quantity of the drug involved in the offending provides the most helpful measure of culpability. State’s preference and its lobbying for quantity based approach is understandable in view that the role is a matter more likely to be known by the offender than the State and the State may have difficulty establishing the exact nature of the offender’s role. This aspect is reflected in Court’s thinking that the (role based approach) needed ‘highly developed investigation mechanism’.
    
41. Sentencing must involve a full evaluation of the circumstances to achieve justice in the individual case. Quantity is no doubt an objectively verifiable factor, the best marker of harm and a rational measure of culpability for offending which poses a danger to public health. But, as I have discussed in the later part of this judgment, there are other considerations that flow into the assessment of culpability on an objective basis, in setting a starting point under the first stage of sentencing. I am of the view with an exclusive quantity based approach in dealing with an offender such as the Appellant who is found to be in possession of a very small quantity (less than 1 g) of Methamphetamine will not serve the interests of justice.
    
42. The Fiji Court of Appeal’s main if not the sole emphasis was on deterrence. The Court’s too much emphasis on deterrence is understandable as it was dealing with importation of large quantity of Cocaine into Fiji. It is not clear the extent of the contribution if any made by the Legal Aid Commission in shaping the sentencing guidelines. I doubt if the Court had received adequate submissions and advocacy to set guidelines on how to deal with cases involving possession of small quantities of Methamphetamine for personal consumption and drug addicts. There is hardly any discussion on sentencing purposes other than deterrence. Nor was there any comment on other sentencing options available in the Illicit Drugs Control Act, for example, alternative sentence of fines and those in Section 15 of the SPA, such as deferral of sentencing orders, community work / probation orders, suspended sentences, and drug treatment orders.
    

Zhang v R

43. Ironically, the foundation upon which the Fiji’s sentencing guidelines were based is no longer in application in New Zealand. In 2019, the New Zealand Court of Appeal in Zhang v R [2019] NZCA 507 [21 October 2019] revisited Fatu and made amendments to the sentencing regime that had developed under Fatu. These amendments were made in response to concerns that Fatu was resulting in disproportionately severe sentences and that certain assumptions made by the Court in 2005 no longer held true.
    
44. Zhang is particularly relevant to this appeal, as its benefits lie more for those who take a lesser role in methamphetamine offending, and particularly those who do so as a result of addiction or vulnerability. Although a ‘highly developed investigation mechanism’ may be lacking in Fiji to deal with supply of large amounts, manufacture, and import of Methamphetamine so as to discourage a role based approach to sentencing, Zhang guidelines present valuable insights about the weight that should be given to the role the offender has played in the offending.
    
45. In the process of formulating the guidelines in Zhang, the full Court had the benefit of the range of argument and submissions presented by experts and stakeholders including medical professors, the Human Rights Commission, the Police, and the Drug Foundation etc. in addition to the legal Counsel. The findings of the Court are informative and, in my view, helpful to any court dealing with Methamphetamine offenders irrespective of what jurisdiction it belongs to.
    
46. Zhang retained the Fatu quantity bands, but with some significant modifications. It accepted that quantity remains a reasonable proxy both for the social harm done by the drug and the illicit gains made from making, importing and selling it, and therefore an important consideration in fixing culpability at the stage one starting point. In particular, the Court held that the role played by the offender is an important consideration in the stage one sentence starting point and a due regard to role enables sentencing judges to properly assess the seriousness of the conduct and the criminality involved, and thereby the culpability inherent in the offending.
    
47. The new bands set by Court in Zhang are as follows:

Band one: < 5 grams 2 – 4.5 years Community to 4 years

Band two: < 250 grams 3 – 11 years 2 – 9 years

Band three: < 500 grams 8 – 15 years 6 – 12 years

Band four: < 2 kilograms 10 years to life 8 – 16 years

Band five: > 2 kilograms 10 years to life 10 years to life

48. The Court emphasised that the judges need to be willing to set starting points in sentences beneath the stated entry points where culpability is truly low; most likely where an offender plays a lesser role in offending. Minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic way and, when imposed, a reasoned analysis is required after rightly balancing deterrence, denunciation, accountability and rehabilitation. The Court was particularly concerned at the need to consider more flexible sentencing solutions in band one, where community-based sentences need to be a starting point open to the court, not merely an end point.
    
49. Having rejected the wholesale adoption of double axis approach of the United Kingdom Sentencing Council, the Court emphasised that, in assessing role, sentencing judges may find it helpful to have regard to the Council’s descriptions of roles (Lesser, Significant, Leading) and relevant indicia to be taken into account.
    
50. The Court tabulated following indicia that would attract Lesser Role categorisation 1. Performs a limited function under direction; 2. Engaged by pressure, coercion, intimidation; 3. Involvement through naivety or exploitation; 4. Motivated solely or primarily by own addiction; 5. Little or no actual or expected financial gain; 6. Paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved; 7. No influence on those above in a chain; 8. Little, if any, awareness or understanding of the scale of operation; and/or 9. If own operation, solely or primarily for own or joint use on non-commercial basis.
    
51. Any discount for associated mitigating personal considerations is a matter for the tier two sentencing exercise. Addiction, shown to be causative of the offending, is a mitigating consideration justifying a substantial discount. Addiction was seen as a mental health issue calling for consideration of a rehabilitative response as part of sentencing. Apart from that duress, (short of a full defence), or the undue influence were recognized as mitigating factors.
    

Methamphetamine Offending and Deterrence

52. Deterrence is one of several stated purposes of sentencing in Section 4 of the SPA. Deterrence may or may not be taken into account in individual sentence-setting. Logically, the extent to which it will be taken into account depends on the extent to which a sentence may reasonably be expected to either deter the community generally from similar offending (general deterrence) or deter the individual specifically from doing so (personal deterrence).
    
53. The Fiji Court of Appeal in setting the guidelines and the Learned Magistrate in passing the sentence on the Appellant seem to have taken the view that lengthy prison sentences are an effective deterrent. The scientific evidence produced in the New Zealand Court of Appeal shows that is not the case, particularly in cases where addiction is shown to be causative of the offending. It is beneficial to discuss briefly some of the findings of the experts who had presented evidence in Court as some of them are relevant to the present case and also to similar cases that come before the magistrates on almost daily basis.
    
54. In the context of methamphetamine offending, the expert evidence suggested that severity of sentencing had at best a modest deterrent effect. Professor Mackenzie observed that there is evidence punishment has some general deterrent effect on crime, but that there are factors that make deterrence less likely to work in relation to some drug offenders. Professor Mackenzie observed:
    

“... There is evidence that punishment has a general deterrent effect on crime. Much about this evidence base is still in dispute, and exactly how this effect occurs remains uncertain. It is clear that the possibility of deterrence depends on the ‘sanction risk perceptions’ of would-be offenders. Sanction risk perceptions can be divided into two categories: perception of certainty of sanction, and perception of severity of sanction. Among these two, certainty seems on the current available evidence to be by far the more important variable.

Lengthening the sentence of imprisonment applicable to a given crime is not likely to achieve a significant deterrent effect in respect of that crime. At best there is only a modest deterrent effect from increasing already long prison sentences. More likely there is no significant effect in such cases. Increasing the length of shorter sentences may have more deterrent power than increasing the length of already long sentences, but (a) it is probably still not significant enough to be a driver of sentencing policy, (b) doing so raises a host of other problems beyond simply the question of deterrence and (c) even in such cases, increasing the certainty of apprehension and punishment will be a more powerful deterrent than increasing the length of shorter sentences”

55. The Court observed that the principle of general deterrence is said to be based on a theory of “rational choice”. That is, that the offender may weigh up the pros (profit and pleasure) and cons (detection and punishment) in choosing whether or not to offend. But the principle of rational choice is less relevant, and general deterrence is less likely, where that rational choice is constrained by mental disorder (so that the choice may not be rational at all), addiction, poverty, duress or other supervening vulnerability. The Court found that some of the cases it was considering demonstrated that these vulnerabilities were present in much methamphetamine offending. The Court identified the offenders in those cases as the ones who had a very limited role in a distribution chain that an enlightened sentencing policy should focus on.
    
56. Deterrence is put in issue where the offender is vulnerable, by reason (for instance) of addiction, mental health disability, economic deprivation, duress or undue influence. That consideration reduces the relevance of individual, rather than general, deterrence. The Court accepted that sentencing discounts may apply where an offender is addicted and has acted under duress (short of a full defence) or the undue influence of a person upon whom the offender is dependent for the simple reason that personal responsibility is altered where volition is overborne or diminished.
    
57. Methamphetamine is highly addictive drug and its harmful effects on human brain were illustrated by the experts who presented scientific evidence in Court. When used in solution form for injecting or free-base form for smoking, the impact is very fast and strong, and has a much greater propensity for dependence and addiction. Professor Nutt had observed in his evidence:
    

“Methamphetamine dependence/addiction is a brain disorder that once established is hard to overcome. It does not go away on its own by simply stopping someone using methamphetamine. The desire to use is often present for years after stopping because the memories of the effects of methamphetamine, especially when smoked or injected, are so powerfully pleasurable that they never go away. The desire to use again, even when the person knows that to do so will lead them back into the addiction, or even to prison, can be profound and in many cases will overwhelm their intention not to use”

58. Addiction caused by Methamphetamine calls in question the effectiveness of individual deterrence, in the same way that a mental health issue may do, potentially rendering a term of imprisonment more severe for the offender if effective addiction treatment programmes are not available in the prison /correction centre.
    
59. The Court accepted that addiction engages other considerations under the Sentencing Act and in particular, the purpose of assisting an offender’s rehabilitation and reintegration. The Court encouraged sentencing judges to explore rehabilitative options in sentencing addicted offenders. However the Court laid down certain qualifications. Addiction should only be relevant where it is causative of the offending, and that addiction should not be treated as having mitigating effect in cases where the offender operated above self-sufficient dealing. Commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence. Any discount should be based on persuasive evidence, as opposed to mere self-reporting. Inasmuch as a stage two discount for mitigating circumstances is engaged, the onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction.
    
60. The other problem that may seem inevitable with imposing long custodial sentences for drug addicts is that the perception of severity of sanction is likely to discourage acceptance of responsibility. Acceptance of guilt is a pre–requisite to participation in restorative justice processes and treatment programmes. Drug addicts may be reluctant to accept their guilt on the basis that doing so is likely to result in lengthy, inflexible prison terms. Offender denial is therefore likely to lead to anti-therapeutic outcomes for drug addicts.
    
61. In a case where a small quantity of Methamphetamine is found in the possession of the suspect, a greater responsibility is cast on the police and the prosecutors to ascertain if he/she is an offender and not a victim. Only the offenders and not the victims are punished by our criminal justice system. Due to lack of sophisticated investigation mechanisms in identifying the role or degree of responsibility of the suspect, there is a danger of victims being identified and implicated as offenders. In some jurisdictions, like the Netherlands, the suspects found in possession of small quantities of illicit drugs are subjected to voluntary urine/blood tests to assertion if they had possessed the drug for personal consumption. There can be a situation where a student given free methamphetamine by a drug dealer to addict and indebt him, who is then forced himself to deal the drug to get by. Each aspect is a matter for the investigator and the sentencing judge to have regard to.
    
62. Having discussed the latest developments in the New Zealand’s sentencing regime and the suitability of its application in Fiji for small scale Methamphetamine offending, I would suggest that the magistrates in sentencing the offenders, who are found in possession of small quantities less than 1g of Methamphetamine for personal consumption and drug addicts, should consider other sentencing options available under the Illicit Drug Control Act 2004 (fines) and Section 15 of the SPA. I observe an under-utilization by the Magistrates of Section 15 of the SPA that gives wider discretion to impose non-custodial sentencing options for offenders who are found in possession of small quantities of illicit drugs for personal consumption or drug addicts. I would also suggest that it is open to sentencing magistrates to treat Abourizk Category 1 as not applicable in such cases, if justifiable reasons are available in the circumstances. I must emphasis again that these are only suggestions and the guidelines issued by the Court of Appeal are to be applied.
    
63. I now proceed to apply the principles I discussed to the present appeal. In the present case, the total weight of the substance found in the possession of the Appellant was 0.1464g. According to the Fiji Police Forensic Chemistry Laboratory Report submitted to the Magistrates Court, each of the five packets that were examined tested positive for Methamphetamine. The purity of the drug had not been determined although the summary of facts indicates that the entirety is pure Methamphetamine. It can be assumed that the percentage of pure Methamphetamine is less than what is reflected in the total weight. In any event, the total weight is less than 5 g and therefore the applicable tariff band under Abourizk is Category 1, attracting a minimum imprisonment term of 2 ½ years.
    
64. According to Abourizk guidelines, no role analysis is required either to determine the starting point at stage one or aggravating and mitigating circumstances at stage two. If Zhang guidelines were to be applicable in Fiji, the Learned Magistrate, based on the weight and the role, would have selected Band I ranging between 2 – 4.5 years, Community to 4 years.
    
65. The Learned Magistrate, having considered the objective seriousness of the offence, picked 38 months as the starting point.
    
66. Appeal grounds 3 and 4 raised by the Appellant complain that the Learned Magistrate, having erred in law and in fact, imposed a greater sentence based on the fact that the illicit drugs apprehended was for commercial purpose and that a starting point of 38 months was excessive. These two grounds can conveniently be considered and dealt with together.
    
67. The Learned Magistrate at paragraph 21 of the Sentencing Ruling states: “Upon perusal of summary statement of facts, it reveals that, the accused was carrying those illicit drugs underneath his trouser for a commercial purpose.....”
    
68. However, in the summary of facts read in Court, there is no mention that the accused was carrying illicit drug for a commercial purpose. It only states “Upon searching [B-1]’s shorts, [A-1] found 5x zip lock clear plastic containing crystal from the right hand side of the shorts underneath ....believed to be Methamphetamine”.
    
69. It is clear that there is no admission by the accused that he was carrying the illicit drug for a ‘commercial purpose’. The Learned Magistrate, from the fact that the illicit drug was found in 5 zip lock bags, has drawn an inference that the accused was carrying drugs for a commercial purpose or supply in exchange of money.
    
70. The conviction has been recorded on the basis of the confession contained in the summary of facts. However, in the facts admitted by the accused, there was no evidential basis, direct or circumstantial, to show that the accused had possessed the illicit drug for supply. By the manner in which the illicit drug had been parcelled (in 5 zip lock bags), it was of course open for the Learned Magistrate to draw the inference he did. However, it was not the only inference that he could have drawn; it is also possible that the accused had bought the substance from a supplier for his personal consumption. Therefore the Learned Magistrate mistook the facts when he concluded that the Appellant was carrying the illicit drug for a commercial purpose.
    
71. The charge framed by the DPP concerns a specific act (possession) and the accused was supposed to defend and was answerable only to the charge as farmed. If the DPP had evidence that the accused had possessed the illicit drug as a supplier he would have charged the accused for supply. On the strength of the facts admitted by the accused, the only conviction that could possibly have been recorded is for Possession of Methamphetamine as charged in the information. The Appellant was therefore liable to be punished only for what he was convicted of. [Vakalalabure v State [2006] FJSC 3; CAV0003U.2004S (1 May 2006) King v Bright [1916] 2 KB 441 at 444-5:]
    
72. In Tirai v State [2009] FJCA 13; AAU 0023.2009 (23 September 2009), the accused was convicted of Possession of 617.6 g of cannabis sativa. The sentencing magistrate in his Sentencing Ruling erroneously considered that the accused had admitted supply when there was no such admission made by the accused. The Court of Appeal at [18] reached the following conclusion:

"We are satisfied that the Learned Magistrate erred in increasing the sentence of the appellant by three months to reflect the fact that the appellant was a supplier of drugs. The appellant was not charged with the offence of supply of an illicit drug. The prosecution did not lead any evidence to show the appellant was a supplier of an illicit drug”. (Emphasis added).

73. Marshall JA who wrote the minority decision in Sulua (supra) reached the same conclusion. His Lordship took the view that the sentencing judge had erred in taking into account as an aggravating factor that the drugs (cannabis) were intended for supply when the accused was charged and convicted for possession only. Temo JA who wrote the majority decision (with whom K.P. Fernando JA concurred) also agreed that the sentencer below had fallen into an error in sentencing the accused on the basis that the drugs were possessed for supply. His Lordships however, concluded that the error was not fatal because the maximum penalty prescribed for possession and supply is the same that is life imprisonment.
    
74. Goundar JA in Koroivuki v State (supra), did not agree with the view taken by the Court of Appeal in Sulua. His Lordship at paragraphs 22, 23 observed:

“I respectfully differ in opinion expressed in Sulua to the extent it states that the court cannot take into account the purpose for which the drugs were in possession in sentencing the offender. Unlike the English statute, the Illicit Drugs Control Act 2004 does not prescribe any form of aggravation regarding the intention of the offender for the offence of "possession". So there is no legal obligation on the State to include aggravation in the charge.

If there is evidence led by the prosecution regarding the purpose for which the offender had the drug in his possession, then that purpose becomes relevant in assessing the culpability of the offender. If the drug is of a small quantity and was intended for personal use, the court can take that into account in reducing the offender's culpability when passing sentence. If the drug was possessed with the intention to keep for another, that intention is relevant in assessing the offender's culpability and role in the joint enterprise. If the drug is intended for distribution or sale, a higher culpability is imputed on the offender. The list is not exhaustive. Further, the court can impute various degrees of culpability based on commercial aspects involved. If the drug is kept in possession for sale, the degree of culpability will be much higher than if the drug was possessed for supply for no remuneration but as a favour for another. The criminality that is involved in each case will depend on the evidence led by the prosecution or facts admitted by the offender.”

75. With all due respect, I take the view that the Illicit Drugs Control Act 2004 does not prescribe any form of aggravation regarding the intention of the offender for the offence of "possession". However it does provide for distinct offences if there is evidence that the intention of the accused in relation to possession was for a specific purpose. For example, if there is evidence that the suspect was possessing the illicit drug for a commercial purpose, he should be charged for Supply of Illicit Drugs (according to Section 2, ’supply’ includes distribute, give, sell and offer to supply) and not for possession of Illicit drugs. So there is an obligation on the State to charge a suspect for the correct offence and to lead evidence to prove that charge. The courts should not in my opinion punish the offender for an offence for which he has not been charged or convicted.
    
76. At the sentencing hearing, the Learned State Counsel submitted that the different offending acts described in Section 5(a) of the Illicit Drugs Control Act constitute a single offence. I am unable to agree with this proposition. The mere fact that each offending act carries a maximum punishment of life imprisonment does not, in my opinion, make different acts the same offence. The Court of Appeal in Tirai (supra), at paragraph 18 (cited above) confirms that Supply is a distinct offence from Possession.
    
77. The question is whether the fact that all types of offending in Section 5 (1) (a) and 5(b) of the Illicit Drugs Control Act 2004 ought to be punished on an equal footing (maximum life imprisonment) eliminates the prejudicial effect on an offender convicted only for possession of a small quantity of Methamphetamine when he is punished on the basis that he is a supplier. In my judgment it does not. That is where the role of the offender comes into play. It has to be accepted that there is a huge difference in culpability between the case of a person who is found to be in possession of small quantity of Methamphetamine for personal/ recreational use and the case of a supplier for a commercial purpose. Each in theory is liable to imprisonment for life. There must be a logical and consistent sentencing scale between the most serious of cases (attracting life imprisonment) and the least serious of cases, if the constitutional imperative of proportionality is to be given effect.
    
78. As I said before, the State may have difficulty in establishing the exact nature of the offender’s role and therefore a prosecution on a possession charge would be preferable to the State when evidence is insufficient or lacking to prove the involvement or the role of the suspect. However justice must be done in the sentencing process. In a jurisdiction like ours, where quantity is the sole basis for measuring the culpability, large scale possessors of illicit drugs can adequately be punished even on a mere possession charge. My point is that small scale possessors should be prosecuted for possession and punished leniently when there is no evidence of commerciality.
    
79. The important question is how this mistake has affected the sentence of the Appellant. The State Counsel submits that the Learned Magistrate has not taken the so called ‘commercial purpose’ into account as an aggravating circumstance. I do agree with that as the Learned Magistrate at paragraph 7 of the Sentencing Ruling specifically stated that there are no aggravating factors. Then for what purpose has the Learned Magistrate considered the commerciality. The only assumption I can make is that the Learned Magistrate has taken this aspect into account in determining the culpability and the starting point of 38 months which the Appellant says is excessive.
    
80. The starting point is objectively determined on the basis of the culpability. If the culpability was measured solely on the basis of weight as required by Abourizk, the weight of the substance found in the Appellant’s possession was quite small, less than 1g. If the role were to be considered, in the absence of any evidence of commercial dealing, the Appellant had played a lesser role.
    
81. The prime expectation of the Abourizk guidelines is to promote consistency in sentencing levels nationwide. Underline rationale is that like cases should be treated in like manner, similarly situated offenders should receive similar sentences and outcomes should not turn on the identity of the particular judge or magistrate.
    
82. Consistency is not of course absolute and in the guideline judgment, the Court of Appeal has been careful to emphasise that sentencing is still an evaluative exercise when it states ...[T]hese guidelines may apply across all acts identified under section 5(a) and 5(b) of the Illicit Drugs Control Act 2004 subject to relevant provisions of law, mitigating and aggravating circumstances and sentencing discretion in individual cases. (emphasis added) The guideline judgments are just that, “guidelines”, and must not be applied in a mechanistic way. Sentencing outside the bands is also not forbidden, although it must be justified. I take the view that the Learned Magistrate has failed to select a starting point that is commensurate with the culpability of the Appellant when he picked 38 months.
    
83. At stage two of the sentencing exercise, the Learned Magistrate found no aggravating features and he discounted the sentence for mitigation. The Appellant is 33 years of age, a father of one child. He is a first offender with no previous convictions. Learned Magistrate discounted the sentence by 3 months to reflect these mitigating circumstances. Further discount of 5 months was given for the early guilty plea to arrive at 30 months. The Appellant had been in remand for 2 months. Therefore the final sentence should have been an imprisonment term of 28 months although the sentence imposed by the Learned Magistrate according to the Ruling was 21 months’ imprisonment. It is not clear how that calculation was done. What matters in this appeal is the final sentence imposed which is 21 months’ imprisonment.
    
84. The non-parole period imposed was 23 months when the final sentence was 21 months. The Learned Magistrate fell into an obvious error when he imposed a non-parole period of 23 months, in excess of the final sentence. Since the final sentence fell below 2 years’ imprisonment, the Learned Magistrate as per Section 18 (3) of the SPA had a discretion either to impose a non-parole period or not. Any non-parole period so fixed must be at least 6 months less than the term of the sentence.
    
85. Although the Learned Magistrate mistook the facts and took an irrelevant matter into consideration to select the starting point, an imprisonment term of 21 months is not manifestly excessive for a serious offence which attracts a maximum sentence of life imprisonment. The tariff set by the Court of Appeal justifies the sentence if it were not mechanistically applied. What the Learned Magistrate failed to appreciate was the wide discretion given to him by the guideline judgment which stated ..... I set the following guidelines for tariff in sentences for all hard/major drugs (such as Cocaine, Heroin, and Methamphetamine etc.). These guidelines may apply across all acts identified under section 5(a) and 5(b) of the Illicit Drugs Control Act 2004 subject to relevant provisions of law, mitigating and aggravating circumstances and sentencing discretion in individual cases. (emphasis added)
    
86. There was no evidence presented before the Learned Magistrate that the Appellant was addicted to Methamphetamine. Therefore the Learned Magistrate was under no duty to explore the possibility of imposing a Drug Treatment Order in accordance with Regulations made under Section 30 of the SPA. However, other sentencing options listed under Section 15 of the SPA, such as wholly or partly suspended sentence (d), Orders for Community work or Probation Orders (e) Orders for payment of fines (f), Deferment of sentence orders (g) should have been considered by the Learned Magistrate.
    
87. The Appellant is a first and young offender with nil previous convictions. He pleaded guilty to the charge at the first available opportunity and was remorseful. The Learned Magistrate at paragraph 21 of his Ruling however observed that ‘Even at the mitigating submissions to the court also, the Accused did not show any remorsefulness for the offence committed’. It is not clear how that observation was made when the accused had pleaded guilty at the first available opportunity. The Appellant cooperated with police and sought another chance to rehabilitate.
    
88. The Appellant has all the qualifications to get a suspended sentence. However, in the absence of any evidence that he possessed the illicit drug for his personal consumption or that he is a drug addict, immediately releasing him to the society would be problematic. The possession of Methamphetamine is a serious offence and the courts in Fiji have come down harsh on this offence. I am aware that special rehabilitation programmes are available at the correction facility for drug related offenders. A right balance should be struck between denunciation, and deterrence on one hand and rehabilitation on the other. To facilitate Appellant’s reintegration a partial suspended sentence will meet the interests of justice.
    
89. The Appellant should be sentenced to a term of 18 months’ imprisonment. He has already served more than 2 months in the correction facility. He should serve 12 months in total at the correction facility and the remainder should be suspended for a period of two years.
    
90. Following Orders are made
    

i. The appeal is allowed.

ii. The sentence imposed by the Learned Magistrate is quashed.

iii. An imprisonment term of 18 months is imposed from the date of the original sentence.

4. 6 months of the sentence is suspended for a period of 2 years. Accordingly the Appellant is to serve only 12 months in the Correction Centre from 15 May 2020 and the balance 6 months is suspended for a period of 2 years.
   

Aruna Aluthge

Judge

At Suva

23 July 2020

Solicitors: Appellant in Person

Director of Public Prosecution for State