Police v Mareko [2003] WSCA 1; 04 2003 (21 November 2003)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 4/2003

IN THE MATTER of the Judicature Ordinance 1961.

AND

IN THE MATTER of an appeal
pursuant to Section 164Q of the Criminal Procedure Act 1972.

BETWEEN

THE POLICE
Appellant

AND

SALE MAREKO TUA’I
Self Employed of Togafuafua Apia.
Respondent

Coram: The Rt Hon Lord Cooke of Thorndon
The Rt Hon Sir Gordon Bisson
Hon Justice Ellis

Hearing: 17 & 18 November 2003

Counsels: Mr R Schuster and Ms Hunter-Betham for appellant
Mr M Leung Wai for respondent

Judgment: 21 November 2003

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

On 19 May 2003, the respondent, Sale Mareko Tua’i, pleaded guilty to the charge that on the 23^rd March 2002 he knowingly had in his possession narcotics namely cannabis substances (one shopping bag of dried marijuana leaves). The maximum sentence for this offence is 7 years under s.18(2)(a) of the Narcotics Act 1967. He was duly convicted and sentenced by Justice Vaai to come up for sentence within 12 months. He was warned that if he re-offended in that period, Justice Vaai said "I will have no hesitation in sending you to prison".

On 30 May 2003 a Notice of Appeal against sentence duly signed by the Attorney-General was filed in Court (and subsequently stamped and dated 5 June 2003). This Notice was "given" within the 14 days prescribed in s.164Q of the Criminal Procedure Act 1972 and was not "brought" after 21 days from the date of passing sentence as prescribed in R.28 of the Court of Appeal Rules in the First Schedule to the Judicature Ordinance 1961. Accordingly, there was no application for this Court to enlarge the time for filing the Notice of Appeal. The Notice of Appeal, however, has never been served on the respondent. There is no provision in the Rules or the Ordinance for service of such a Notice. But we think it is implicit in the giving of notice that it be to the other party to the proceeding. The Notice of Appeal should have been served on the respondent within in the 21 days prescribed for the appeal to be brought, or at least as soon as is reasonably practical thereafter.

The respondent was not made aware that there was an appeal pending until the 5^th November 2003 when he was served with the Record of Appeal. This Record of Appeal had been filed on 28 October 2003 well beyond the prescribed six weeks from the date of filing the Notice of Appeal. This failure to comply with the Rules was grossly unfair to the respondent. In a Notice of Motion dated 17 November 2003 to extend the time to file the Record of Appeal it was stated that there had been an "oversight" on the part of counsel. Such an oversight without a satisfactory explanation is quite inexcusable.

In The Police v Faaleofi Niupulusu Posui Etelagi and others [2001] WSCA 2 (judgment 23 November 2001) the Attorney-General "candidly acknowledged, there appears to have been an administrative oversight which could not be a sufficient reason for the lapse of some seven months which has occurred." The Court held that under R.35 "the appeal shall be determined to have been abandoned." There has been no such concession by the Attorney-General in this case but we consider the lapse of some five months through oversight a sufficient reason for holding that the appeal shall be determined to have been abandoned, especially in view of the decision of this Court in the earlier case.

We are however urged by the appellant to consider the case on its merits and to apply R.38 which provides,

38. Non-compliance with rules may be waived – Non-compliance on the part of an appellant with these rules or with any rule of practice for the time being in force under the Ordinance shall not prevent the further prosecution of his appeal if the Court of Appeal or the President thereof considers that such non-compliance was not wilful and that it may be waived or remedied by amendment or otherwise. The Court of Appeal or the President thereof may in such manner as is thought proper direct the appellant to remedy such non-compliance and upon the proper action being taken by the appellant the appeal shall proceed.

In The Police v Maleko Faasolo and others [2001] WSCA 6 (Judgment 23 November 2001) this Court said,

As well as the enlargement of time power referred to earlier, there is Rule 38 which permits non-compliance with rules to be waived. Whether it could cover the deeming provisions of Rule 35 is open to debate but, in a case where there was an acquittal more than a year ago, it would be unconscionable to permit the continuation of a process which challenges that conclusion. There are provisions to enable application to be made for extensions of time so there are inbuilt safeguards. But inaction or omission whether through neglect, oversight or mistake which persists for this length of time cannot be excused.

We are satisfied that R.38 can be applied to waive a non-compliance of the Rules which was not wilful so as not to prevent the further prosecution of the appeal. But the Court has a discretion. It is not sufficient simply that the non-compliance was not wilful. The overall justice of the case must be considered and a compelling justification found to depart from a strict compliance with the Rules which is to be expected of an appellant who is represented by counsel. These considerations apply with especial force in a case such as the present, where the prosecution are seeking on appeal to substitute a custodial sentence for a sentence which has allowed the offender to remain in the community.

In this case the appellant in support of the Motion to extend time to file the Record of Appeal pleaded,

(a) Oversight on the part of counsel who had the carriage of the matter despite instructions to file the record within time;

(b) That on the merits of the matter, the Appellants contends that the sentencing judge imposed a sentence manifestly inadequate considering the previous decisions of the Supreme Court of Samoa for offences of this type;

(c) That where this Honourable Court grants the Appellants motion to extend time to file the record of appeal, there is minimal inconvenience to this Honourable court as there had been no trial and therefore no exhibits were produced or Court trial records documented by the Supreme Court;

(d) That the appeal is wholly confined to the circumstances in which the sentencing judge imposed the penalty now appealed against;

(e) That the deemed abandonment was not wilful nor deliberate and the mind of the appellant was not directed to abandon the appeal, and for all intents and purposes the Appellant had no intention of abandoning the appeal;

(f) That the deemed abandonment should be treated as a nullity for the foregoing reasons and leave to file the record granted.

The grounds for appeal itself were:-

(a) The sentence imposed was manifestly inadequate in relation to previous decisions handed down by this Honourable Court against offences of this nature;

(b) The sentence does not give sufficient weight to the need for general deterrence for this type of offending;

(c) The sentence does not reflect the nature of the criminal act and the role of the Respondent in the circumstances of this matter.

Turning now to the facts of the case. The respondent is 44 years of age living with his de facto wife and their two children. The family operates a food stall at the market which is their main source of income. On 23 March 2003 the Police executed a search warrant at the respondent’s house and found one shopping bag of dried marijuana leaves and a bundle of marijuana wrapped in newspaper. The respondent admitted being in possession of the shopping bag of dried marijuana leaves which is the subject of the charge to which he has pleaded guilty. A difficulty arose for the Judge on sentencing as the summary of facts did not state the quantity of marijuana involved in the charge. He said, "shopping bags (if the police are referring to the plastic bags issued by shops to customers) come in very many sizes." There is in the appeal case an analysis by a Forensic Technician employed by the Institute of Environmental Science and Research Limited in New Zealand of the cannabis material found in the house.. This report deals with four separate samples all of which whether leaves female heads or seeds were identified as of the genus cannabis (cannabis sativa L) with a total weight of 37.8 grams. Unfortunately the report did not deal separately with what was contained in the shopping bag so was no help to the Judge on sentencing and without any worthwhile estimate of quantity of cannabis the Judge may well have refrained from imposing a prison sentence. Counsel for the appellant and respondent have cited a large number of cases to us and it appears that the Judges hearing these cannabis related cases have differing approaches to sentencing. There is no clear discernible pattern. It would lie in the interests of the Judicial System if a settled pattern of sentencing could be agreed upon leaving room of course for the exercise of leniency in well deserved cases. Imprisonment may not always be called for where only a small quantity of cannabis is possessed and is for personal use especially if it is a first offence. Other forms of punishment are available and more appropriate. Where the amount possessed or other circumstances are such as to give rise to a likelihood of dealing then imprisonment would usually be appropriate. It has to be made clear that cannabis dealing is a serious offence.

Having regard to the lack of evidence of quantity of cannabis material we find it difficult to hold that the sentence was manifestly inadequate. We also in the circumstances do not find the merits of the case call for a waiver of the respondent’s non-compliance with R.35 and failure to serve the respondent with the Notice of Appeal was a denial to him of natural justice. Accordingly the Motion for enlargement of time for preparing and lodging the record as provided in R.32 is dismissed. The appellant’s appeal shall under R.35 be determined to have been abandoned.