Uaisele v Police [2001] TOSC 10; CR APP 025 2000 (7 March 2001)

IN THE SUPREME COURT OF TONGA
CRIMINAL APPEAL JURISDICTION
NUKU'ALOFA REGISTRY

CR.APP.NO.25/00

BETWEEN:

VILI UAISELE
Appellant

AND:

POLICE
Respondent

BEFORE THE HON. JUSTICE FORD

COUNSEL: Mr Tu'utafaiva for the Appellant;
Mr Fusitu'a for the Crown.

Date of Hearing: 1 March, 2001.
Date of Judgment: 7 March, 2001.

JUDGMENT

The appellant, Vili Uaisele, is from Ha'apai. He is 21 years of age and single. He came to Tongatapu to obtain work. He was fortunate in that he was able to obtain employment as a construction worker. From his modest wages, he sends money back to his elderly mother and family in Ha'apai. His employer thinks highly of him and was instrumental in instructing counsel in connection with the present appeal.

On the night of Sat 6 October 2000, Vili, as his counsel put it, "went out on the town and got drunk". He was apprehended on the street by the police and taken back to the police station. The police found on him a small transparent plastic bag measuring 7 X 4 centimetres containing leaves of Indian hemp, also known as cannabis or marijuana. The quantity of the substance could not be weighed on the scales.

The appellant freely admitted his offending in a statement he gave to the police. He was charged with being found drunk in a public place and with possession of Indian hemp. He pleaded guilty to both charges and was dealt with summarily in the Magistrates' Court. On the drunkenness charge he was convicted and fined $20; on the possession charge he was convicted and sentenced to six months imprisonment. He now appeals to this Court against the sentence of six months imprisonment imposed on him in respect of the possession charge.

Counsel for the appellant did not dispute that the Magistrate had power to impose an imprisonment sentence for possession of Indian hemp but he told the Court that the usual punishment imposed in the Magistrates' Courts in the Kingdom for possession of Indian hemp was a fine averaging $500 and so his main ground of appeal was disparity of sentencing between this case and others. Counsel submitted that there were no extraordinary features associated with this case which would warrant a penalty outside the "norm". He noted the evidence that the appellant had purchased the plastic bag of cannabis for $10.00 from a person who he had named to the police. Counsel submitted that there was only a very small amount of product involved. He said that in his drunken state, the appellant had bought the cannabis to try the taste. He had used some of it and counsel submitted that it was clear from the small amount involved that the appellant had the product for his personal use and not for commercial purposes. The appellant had no previous convictions.

Crown counsel filed helpful written submissions. He noted that under the Drugs and Poisons Act (CAP 79) the Court could, upon conviction, have imposed a fine up to a maximum of $2000 or a term of imprisonment of up to 10 years or both. Counsel also noted that, unlike in some jurisdictions, the legislation imposes no graduated scale of sentencing depending upon the quantity of the prohibited drug involved and hence the fact that only a small amount of Indian hemp was involved in this case should not, as he put it, "be a determinate of the appropriateness or otherwise of a sentence of imprisonment".

Counsel also referred to the sentencing guidelines suggested by Hill J. in Anders v Police (1974-1980) TLR 60 and to the decision of the Court of Appeal in Tuita and Mafi v R, Appeals CA 15/98 and 2/99; Cr.122/98 which adopted some of his observations. Counsel went on to say in his submissions:

"In Anders v Police Department, an appeal was made to the Supreme Court against a Magistrates' Court sentence of six months imprisonment for a conviction for possession of marijuana... Hill J. considered this sentence as extremely lenient. He noted that his recommended sentence for the possession of such drugs as cannabis (namely, Indian hemp), without supply, would be in the region of three to six years imprisonment."

Counsel submitted that, "the guidelines and concerns of Hill J. are rendered even more valid in the present climate of widespread Indian hemp availability and use in the Kingdom".

The Crown also drew the Court's attention to the "grave concerns" expressed by the learned Magistrate in his sentencing remarks in the present case where he said:

"... it has become evident that this (Indian hemp possession) has become widespread in Tonga today. This includes the manner in which marijuana is procured. And this is an extremely dangerous thing. I comment on this subject from an informed position as I was one of the first people (in the country) to study drug use. And this is the nature of marijuana, when one smokes marijuana it immediately enters the blood stream and is then spread in this manner throughout one's body."

The Magistrate spoke more about the effects of the drug and concluded:

"Perhaps my remarks have become rather drawn-out but this is in order that I might use this as a lesson or deterrent example to those who consume marijuana."

As to the current practice in the Magistrates' Court, Crown counsel accepted the submission made on behalf of the accused that possession of Indian hemp cases were being dealt with by the imposition of a monetary fine but he submitted that such sentences should not be considered "par for the course" or grounds for leniency and they did not mean that the sentence imposed in this case was in any way inappropriate or excessive.

In relation to the principal submission advanced by the Crown, Crown counsel is quite correct when he says that the legislation does not distinguish between different quantities of a drug when it comes to sentencing but that does not mean that the Court itself cannot make such a distinction and, in reality, when it comes to sentencing, the quantity of drug involved in a case is one of the fundamental factors a Court is bound to have regard to.

In relation to the Crown's submission about what Hill J. had said in the Anders case, the relevant passage in the judgment reads as follows:

I want all the Magistrates in this country to take notice of this judgment because I expect them to follow my directions. And I want them to know that such sentence will certainly be upheld by me in the absence of very exceptional circumstances. If there is a case of trafficking or importing substantial quantities of cannabis, in my view the correct sentences, and this is in line with other countries, is between three and five years. If there is any attempt to supply or import hard drugs that is heroin, cocaine or LSD, the standard sentence will be around seven years up to the maximum which I can impose which is ten years. The sentence for possessing such drugs without supplying them will be in the region of three years to six. I want everybody to know that there are not going to be drugs in Tonga if the Courts can stop it."

(emphasis added)

Whether the reference to "such drugs" was intended to refer only to the hard drugs described in the previous sentence or to cannabis which was mentioned in the sentence prior to that is not free from doubt.

In any event, there are two points I make about the suggestion that three to six years imprisonment is an appropriate sentence for possession of cannabis. First, that passage was not specifically endorsed by the Court of Appeal in the recent Tuita and Mafi case and, secondly, it is a statement made back in 1978. Hill J. indicated that his observations on sentencing were "in line with other countries". I will now look at that proposition, but even if it is correct and the appropriate sentence for possession of Indian hemp in those days was three to six years, I need to consider whether that statement of principle holds true now in 2001. I also need to consider whether it has any application at all to the type of factual situation I have outlined in the present case where the quantity of drug involved is very small and obviously not intended for commercial use.

In R v Dutch [1981] NZCA 44; [1981] 1 NZLR 304, the New Zealand Court of Appeal carried out a review of sentences in previous cases for cannabis cultivation. It concluded that examples of cultivation sentences showed three broad divisions of this class of offending. The second and third classes recognised were for large scale commercial growing. In relation to the first class, the Court of Appeal said:

"At the lowest level of culpability are cases where the offender has cultivated a few plants on his own property exclusively for his own use. Sentences for cultivation to that extent have not been considered by this Court, as obviously they will normally be dealt with by a fine or some other form of non-custodial penalty in the District Courts. But there will be offences of a more serious kind in relation to non-commercial cultivation where terms of imprisonment or heavy fines will be appropriate."

It is difficult to reconcile the first part of that statement in relation to cannabis "cultivation" with the statement by Hill J. only three years previously where His Honour observed that three to six years imprisonment for possession only was "in line with other countries."

In 1983 the Court of Appeal in England in R v Aramah (1983) 76 Cr App R190, also issued guidelines for sentencing in drug offences and in the recent publication "The Law on the Misuse of Drugs and Drug Trafficking Offences" third edition, paragraph 14.42 the learned author described the Aramah guidelines as being still relevant today. In relation to possession of cannabis for personal use, the guideline is expressed as follows:

"Ordinarily, possession of a very small amount of cannabis for the defendant's personal use would not result in a custodial sentence but a continuous or persistent flouting of the law might justify a short custodial sentence."

The Court of Appeal in the Aramah case drew a distinction between possession of class "B" drugs such as cannabis and possession of class "A" drugs such as heroin and morphine and said in relation to the latter category. "there will be very many cases where deprivation of liberty is both proper and expedient". The fact that the Court of Appeal drew this distinction inclines me to the view that Hill J.'s reference to "such drugs" was intended to be a reference to the "hard drugs" of the type that he described rather than cannabis. In any event, if the reference was intended to include cannabis then I cannot accept, as being correct, his comment that three to six years imprisonment for simply possessing cannabis was in line with sentences in other countries.

Of course, these so-called guideline cases do not lay down rigid rules to be applied strictly in all cases. The appropriate sentence is always a matter for the discretion of the sentencing judge. As Dunn L. J. said in R v De Havilland (1983) 5 Cr App R.109, 114:

"Occasionally this Court suggests guide-lines for sentences...but the sentencer retains his discretion within the guide-lines, or even to depart from them if the particular circumstances of the case justify departure".

I do not think it is purely a coincidence that the sentencing guidelines I have referred to in the New Zealand and English Court of Appeal cases appear to be consistent with what the Court was told is "the norm" applied in the Magistrates' Court in the Kingdom. The reality is that most jurisdictions in this day and age recognise that this type of offending is at the very lowest end of the scale. The situation is entirely different, of course, when commercialism or large scale growing or possession is involved. In such cases a strong deterrent message is certainly called for.

There is nothing in the present case, in my opinion, that would warrant any departure from the guidelines I have referred to. For this reason, I have concluded that the sentence imposed of six months imprisonment is wrong in principle and it is hereby set aside. In its place, I impose a fine of $300 which is to be paid within three months from today's date failing which the accused will be imprisoned for a period of three months.

Nuku'alofa: 7th March, 2001

JUDGE