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Qiolele v State [2012] FJCA 42; AAU0092.2010 (28 June 2012)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0092 of 2010
[High Court Criminal Action No. HAC 0028 of 2009]

BEFORE THE RESIDENT JUSTICE OF APPEAL, HON. JUSTICE WILLIAM MARSHALL

BETWEEN:

ALIFERETI QIOLELE
Appellant

AND:

THE STATE
Respondent

COUNSEL: Appellant in Person
Mr. M. Korovou for Respondent

Date of Hearing: Thursday, 17th March 2011

Date of Ruling: Thursday, 28th June 2012

RULING

1. I heard this application to appeal against conviction and sentence by Alifereti Qiolele on 17th March 2011.
   
2. What is beyond doubt is that police and the military raided a house in Nanoca in Navosa on the 29th March 2009. It was the house of Alifereti Qiolele. Two men in the house ran away and were not captured. In the house was found a total of 7253 grams (7.253 kilograms) of cannabis. The house was being used as a wholesale distribution shop for locally produced cannabis.
   
3. In his statement under caution Alifereti Qiolele said it was the first time that he had done wrong and asked for a lenient sentence from the Court. When this was reported at trial he did not contest it. So he was admitting the basic facts. He gave sworn evidence. Incredibly he said he thought that they were dalo leaves.
   
4. Unsurprisingly two of the three assessors expressed an opinion of guilt. Surprisingly one assessor gave an opinion of "not guilty".
   
5. At trial the two who ran away gave evidence for the prosecution. But the evidence was overwhelming without their contribution.
   
6. Alifereti urges the following points against conviction:
   

"Submission for Conviction Appeal

1.6 That the learned Trial Judge failed to give sufficient weight to the lack of legal representation during trial and failed to assist an unrepresented accused like me.

1.7 That the learned Trial Judge erred in law by accepting additional witnesses of the State and failed to notice that the name of those two witnesses were mentioned during my caution interview as the owner of this illicit drugs.

1.8 That the learned Trial Judge erred in law by failing to determine the proceeding of trial and ordered the State counsel to direct the police for investigation to be conducted to Sailosi Saqalu and Vilive Lauroko.

1.9 That the learned Trial Judge erred in law by accepting the additional witnesses of the State and fails to consider that it was recorded three days away from the commencement of trial.

2.0 That the whole proceeding of trial is biased and conviction is unsafe."

7. None of these points have any chance of success. I refuse leave in respect of conviction. I will dismiss the appeal against conviction under Section 35(2) of the Court of Appeal Act.
   
8. The sentence appeal on the other hand is in a different category. Justice Paul Madigan sentenced Alifereti Qiolele to 12 years imprisonment although the charge was "simple possession" and followed Meli Bavesi which is now seen as a wrong turning.
   
9. Alifereti Qiolele says his grounds are:
   

"Submission for Sentence Appeal

2.1 That the sentence is manifestly harsh and excessive.

2.2 That the learned Trial Judge failed to consider my previous good behavior and other mitigating factors."

10. Prior to this ruling being handed down the Court of Appeal has delivered judgment in two appeals. The first is the appeals of Kini Sulua and Michael Ashley Chandra v. The State. The appeal numbers are AAU0093 of 2008 and AAU0074 of 2008. Kini Sulua involves simple possession of 5.2 kilograms of cannabis. Michael Ashley Chandra is in respect of supply of 1.8 kilograms of cannabis. I presided over the panels in these two cases and the other members of the Court were Salesi Temo JA and Priyantha Fernando JA. My judgment in these cases proposing to allow the appeals at least so far as the result is concerned is a minority dissenting judgment. The majority were of the view that the appeals should be dismissed and the sentences of 8 years and 6 years confirmed. However the orders of the court also say Kini Sulua is eligible for parole after 6 years and Michael Ashley Chandra after 4 years.
    
11. The second appeal is Laisiasa Koroivuki v. The State Criminal Appeal No. AAU0018 of 2011. It involved simple possession of 1.8 kilos of cannabis. I presided and the other members of the panel were Salesi Temo JA and Eric Basnayake JA. In this case my judgment in Kini Sulua and Michael Ashley Chandra would have prevailed because Eric Basnayake JA opted, having considered my draft judgments in both cases, to agree with my judgment and proposed orders. That left Salesi Temo JA in the minority. The appeal of Laisiasa Koroivuki would have been allowed and his sentence of 5 years and 11 months would have been reduced to 2 years and 3 months. However these judgments will not be given. They will not be finalised until after 15th July 2012 after which I have no power to give judgment.
    
12. In my view it is likely that both judgments will be eventually appealed to the Supreme Court of Fiji.
    
13. In Laisiasa Koroivuki the appeal against sentence would have been allowed. As in this case the failure of the legislature in 2004 to enact a "supply" offence of "possession with intent to supply" together with the sentencing principle that those charged with "simple possession" cannot be sentenced as "suppliers", approved by the Supreme Court in Vakalalabure (2006) FJSC 8, has the result that judges, mislead by the judgment in Meli Bavesi v. The State (2004) FJHC 93, have been induced to commit serious errors of principle.
    
14. In respect of the length of sentence Alifereti Qiolele has a very strong case in his appeal. I propose to grant him leave to appeal against sentence. But if the majority judgment in Kini Sulua and Michael Ashley Chandra prevails in the Supreme Court, Alifereti Qiolele may lose his appeal. On the other hand applying Justice Temo's guidelines of a range of 7 years to 14 years if the amount is in excess of 5 kilograms, it seems to me that 12 years is excessive for 7.25 kilos.
    
15. It is the duty of the prosecutor to be aware of relevant authority and to place it before the Court even if he wishes to argue that it is inapplicable or not relevant.
    
16. Uraia Tirai v. The State Criminal Appeal No. AAU 0023 of 2009 a decision on sentencing "simple possession" of cannabis only on the basis of the accused being a possessor and not as "a supplier" was decided by the Court of Appeal on 23rd September 2009. The sentence of 12 years on Alifereti Qiolele was handed down on 2nd September 2010. It is unlikely that Justice Madigan would have sentenced as he did if Uraia Tirai had been placed before him.
    

ORDERS

17. I order

(1) that Alifereti Qiolele be refused leave to appeal against conviction.

(2) that the appeal of Alifereti Qiolele against conviction be dismissed pursuant to section 35(2) of the Court of Appeal Act.

(3) that Alifereti Qiolele have leave to appeal against the sentence of imprisonment for 12 years.

William Marshall
Resident Justice of Appeal

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions for Respondent