IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAU 0018 OF 2010

BETWEEN:

LAISIASA KOROIVUKI
Appellant

AND:

THE STATE
Respondent

Coram : Chandra, JA
Lecamwasam, JA
Goundar, JA

Counsel : N. Sharma for the Appellant
N. Tikoisuva for the Respondent
M. Korovou for the Respondent

Date of Hearing : 7th February 2013
Date of Judgment : 5th March 2013

JUDGMENT OF THE COURT

Goundar, JA:

[1]	The appellant was tried in the High Court at Suva on one count of unlawful possession of an illicit drug contrary to section 5(a) of the Illicit Drugs Control Act 2004. On 26 February 2010, he was convicted and sentenced to 5 years and 11 months imprisonment. This is an appeal against sentence on the following grounds:

(i)	Sentencing was done on the basis of supply when the accused was charged for possession.

(ii)	The starting point was on the higher scale which did not reflect the circumstances of the offence.

(iii)	The final sentence was reached by double counting of the aggravating factors.

(iv)	There was a lack of consideration or full application of the provisions of the Sentencing and Penalties Decree when determining the sentence.

[2] 	The facts were that after a covert surveillance of the premises occupied by the appellant at Kinoya, Suva, the police carried out a raid and found dried leaves wrapped in aluminium foil stacked at different locations inside and outside the premises. Tests conducted on the leaves by a government analyst revealed the leaves were cannabis also known as marijuana.

[3]	The appellant was arrested and interviewed under caution. He confessed to the police that the drugs belonged to him. He also told the police that the drugs were for sale.

Was the appellant sentenced as a supplier?

[4]	In his sentencing remarks, the trial judge concluded that the appellant had intended to put the drugs to a commercial use. This factor was used as an aggravating factor by the trial judge to enhance the appellant's sentence. The appellant contends that this was an error because he was not charged and convicted for supply of drugs. The appellant cites the English and local authorities in support of his ground of appeal.

[5]	In R v Twisse [2000] EWCA Crim.98 the appellant was charged and convicted with one count of supply of drugs. The trial judge enhanced the appellant's sentence because there was evidence he had been trading in drugs for a while before the charged transaction. The English Court of Appeal held that the appellant was sentenced for the criminality that the appellant had not admitted. The English Court of Appeal suggested that the charge should have been drawn to cover the entire period of trading for the Court to properly assess the appellant's criminality. The Court stated at paragraph 8:

"What, however, is important is that, if the indictment is not drawn as we have suggested and the defendant does not ask for offences to be taken into consideration, Judges when sentencing should refrain from drawing inferences as to extent of the defendant's criminal activity, even if such inferences are inescapable having regard, for example, to admissions made or equipment found. In other words, a defendant charged with one offence of supply cannot receive a more substantial sentence because it is clear to the court that he has been trading for 9 months: but the court is not require to blind to the obvious. If he claims that the occasion in question was an isolated transaction, that submission can be rejected. He can be given the appropriate sentence for that one offence without the credit he would receive if he really were an isolated offender."

[6] 	Twisse case is distinguishable. In the present case, the appellant's sentence was not enhanced on the ground that he had in his possession drugs on occasions not covered by the charge. The appellant was sentenced for only one transaction of possession. There is nothing in the trial judge's sentencing remarks to suggest that the appellant was sentenced for more than one instance of possession not covered by the charge.

[7] 	A further submission advanced on this ground is that by sentencing the appellant on the basis of supply, he was sentenced to a more serious offence that he was not charged and convicted. Counsel for the appellant cites R v Smith and Tovey [2005] EWCA Crim.530 in support of his submission. In that case the English Court of Appeal adopted the principles adopted by Lord Bingham in R v Canavan [1998] 1 Cr App R 70 at p. 245-246:

"[The defendant] may be sentenced only for an offence proved against him [by admission or verdict] or which he has admitted and asked the court to take into consideration when passing sentence: see Anderson [1978] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law. It is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit."

[8] 	There is no question that the appellant was convicted of possession and not supply of drugs. The Illicit Drugs Control Act 2004 does not define the word "possession". In absence of a statutory definition, the Court can be guided by the English common law definition of the word "possession". Possession is proven if the accused intentionally had the drugs in his physical custody or control to the exclusion of others, except anyone who was acting in concert with him in the alleged offence (Lambert [2002] 2 AC 545). Possession is also proven if the accused intentionally had the substance in some place to which he either alone or jointly with some other person acting in concert with him had access and might go to get physically or control it (Lambert, supra). In the present case, the prosecution relied on the second limb of the meaning of "possession" to prove the charge against the appellant.

[9] 	The ordinary meaning of the word "supply" is to furnish or make available something to someone else who needs, wants or requires it. Section 2 of the Illicit Drugs Control Act 2004 defines the word "supply" as "distribute, give, sell and offer to supply". In his caution interview, the appellant admitted that he intended to sell the drugs found in his possession. But there was no evidence that he had in fact sold, distributed, gave or offered to give the drugs to someone. On the evidence led at trial, a charge of supply could not have been sustained. This explains the reason the State charged the appellant with possession and not with supply. However, there was evidence of the quantity, packaging and admission that the appellant intended to sell the drugs. Intention is a fault element of the offence. Possession and supply are the physical elements. It is clear that the appellant could not have been charged with supply solely on the basis of the fault element, when the evidence on the physical element was lacking. 

[10] 	In Tirai v State [2009] FJCA 13; AAU 0023.2009 (23 September 2009) the accused was convicted of being found in possession of 617.6 grams of cannabis sativa. In sentencing the accused the learned Magistrate erroneously took into account that the accused had admitted dealing in drugs. There was no such admission made by the accused. Apart from the quantity there was no evidence direct or circumstantial to show that the accused had possessed the drugs for supply. The Court of Appeal reached the following conclusion at paragraph [18]:

"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".

[11]	The error made by the learned Magistrate in Tirai is not present in this case. In the present case, there is evidence of confession by the appellant that he had intended to sell the drugs found in his possession. The truth of the confession was accepted by the trial court. The trial judge did not sentence the appellant as a supplier. The purpose of possession as established by evidence was imputed as an aggravating factor to enhance the appellant's sentence. The appellant submits that this is an error and cities Vakalalabure v State [2006] FJSC8; CAV0003U.20045 (15 June 2006).

[12]	In Vakalalabure, the accused was convicted of taking engagements in the nature of an oath purporting to bind himself to commit treason. The offence did not require proof that the accused committed an act of treason. The trial judge imputed a higher culpability on the accused for setting of the new government after the lawful government was taken hostage by George Speight in 2000. After citing the English and Australian authorities, the Supreme Court concluded that the petitioner was sentened for treasonable conduct for which he was not charged or convicted. 

[13]	In The King v Bright [1916] 2 KB 441 Darling J, giving the judgment of the Court of Criminal Appeal, said at 444-5:

"…the judge…must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation."

[14]	Bright was followed by the High Court of Australia in The Queen v De Simoni (1981)147 CLR 383 where Gibbs CJ said at 389:

"....the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence or which he has not been convicted… a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."

[15]	In my judgment the last statement by Gibbs CJ in De Simoni sums up the principle. The principle is that if the statute prescribes some form of aggravation exposing the offender to a conviction for a more serious offence then he cannot be sentenced for that aggravation unless he is charged and convicted of that aggravation. In other words, if the State could have charged an accused with a serious offence or with an offence prescribing circumstances of aggravation, but elects not to do so, on conviction or guilty plea, the accused cannot be sentenced for the uncharged offence or aggravation. In Vakalabure, the accused could have been charged with treason but due to the statutory time limitation, he was charged with a less serious offence. For this reason, the Supreme Court concluded that the trial court erred in imputing a treasonable conduct on the offender as an aggravating factor. 

[16]	A good example of a statutory aggravation offence is the offence of sexual assaults created by section 210 of the Crimes Decree. Section 210(1) sets out the ordinary sexual assaults:

"A person commits an indictable offence (which is triable summarily) if he or she –

(a) unlawfully and indecently assaults another person; or
(b) procures another person, without the person's consent –

(i) to commit an act of gross indecency; or
(ii) to witness an act of gross indecency by the person or  any other person.

Penalty – Imprisonment for 10 years."

[17]	Subsections (2) and (3) set out the circumstances of aggravation making the offence more serious and punishable by tougher maximum sentences:

"(2) The offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in sub-section 1(a) or 1(b)(i) if the indecent assault or act of gross indecency includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person".

(3) Further, the offender is liable to a maximum penalty of 14 years imprisonment if- 

(a) immediately before, during, or immediately after, the offence, the offender is, or pretends to be, armed with a dangerous or offensive weapon, or is in company with any other person; or

(b) for an offence defined in sub-section (1)(a), the indecent assault includes the person who is assaulted penetrating the offender's vagina, vulva or anus to any extent with a thing or a part of the person's body that is not a penis; or

(c) for an offence defined in sub-section (1) (b) (i), the act of gross indecency includes the person who is procured by the offender penetrating the vagina, vulva or anus of the person who is procured or another person to any extent with a thing or a part of the body of the person who is procured that is not a penis." 

[18]	Under the principle laid down in Bright, De Simoni and Vakalabure an accused charged and convicted under section 210(1), cannot be sentenced for circumstances prescribed under subsections (2) and (3). The offender will have to be charged and convicted for the statutory aggravation under subsections (2) and (3) first, before the court will be permitted to sentence on the basis of aggravation. 

[19]	Another case relied on by the appellant is Kini Sulua and Michael Ashley Chandra Criminal Appeal No. AAU0093 of 2003 and Criminal Appeal No. AAU0074 of 2008 (31 May 2012). In that case, Marshall JA in a minority decision while acknowledging the lacuna in the Illicit Drugs Control Act 2004 for not creating an offence of possession with intention to supply that exists under the English legislation, held that the trial judge 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. Marshall JA reached this conclusion after considering the same authorities cited above.

[20]	The majority decision which was written by Temo JA and agreed by Fernando JA accepted that the trial judge had made an error in sentencing the accused on the basis the drugs were possessed for supply, their Lordships concluded that the error was not fatal because the maximum penalty prescribed for possession and supply is the same, that is life imprisonment. After considering about 50 previous cases, the majority recommended the following guidelines for sentencing offenders convicted of possession of cannabis:

(i)	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.

[21]	Since Sulua was convicted for possessing 5,203.3 grams of cannabis sativa, the majority concluded the amount fell within category 4 and therefore the term of 8 years imprisonment was within the range of sentences imposed for possession of large quantities of drugs. 

[22] 	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.

[23] 	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. 

[24] 	In the present case it was open on the evidence for the trial judge to impute the commercial use that the appellant had intended to put the drugs to, as an aggravating factor to enhance the sentence. No error of law or fact has been shown in the trial judge's consideration of the intention of the appellant in possessing the drugs. This ground fails.

Starting Point

[25]	The appellant's contention under this ground of appeal is that the trial judge erred in selecting a starting point of 5 years imprisonment. In crafting his arguments, counsel for the appellant submits that at the time the appellant was sentenced the Bavesi guidelines were applicable (see, Meli Bavesi v the State Crim.App.HAA027 of 2007, Winter J). Bavesi guidelines recommended a starting point of 5 years for the most serious cases of offending involving possession of large amounts of drugs usually with a considerable degree of sophistication. By the time this appeal was heard, this Court in Sulua had overruled the Bavesi guidelines. Counsel for the appellant submits that the quantity of drugs in this case falls under category 3 in Sulua's case. The suggested tariff for possession of less than 2,500 grams of cannabis under category 3 is less than 4 years imprisonment. 

[26] 	The purpose of tariff in sentencing is to maintain uniformity in sentences. Uniformity in sentences is a reflection of equality before the law. Offender committing similar offences should know that punishments are even-handedly given in similar cases. When punishments are even-handedly given to the offenders, the public's confidence in the criminal justice system is maintained. 

[27] 	In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range. 

[28]	In the present case, the trial judge picked his starting point based on Bavesi category reserved for the most serious cases of offending involving considerable degree of sophistication. No reasons were given as to why the trial judge considered the offending in the present case to be the most serious case of offence involving considerable degree of sophistication. The lack of reasoning leads this Court to conclude that the trial judge erred in picking 5 years as his starting point. Under the new Sulua category, the recommended tariff for possessing 1.8 kg cannabis is less than 4 years. 

[29] 	In State v Roko [2008] FJHC 67; HAC160.2007 (11 April 2008), after a trial, the offender was convicted of possessing 1.9 kg of cannabis. He was 30 years old and married with four young children. He was also a first time offender. The cannabis was packaged in aluminum foil and stacked on different locations around his home. He was sentenced to 4 years imprisonment. 

[30] 	The circumstances of the offence in the present case and the personal circumstances of the appellant are similar to that in Roko's case. Under both the old Bavesi category and under the new Sulua category, 5 years is not an appropriate starting point for possession of 1.8 kg of cannabis. By selecting 5 years as his starting point, the trial judge was virtually incorporating the aggravating features of the offence rather than picking a term based on an objective seriousness of the offence. This ground of appeal succeeds. 

Double Counting of Aggravating Factors

[31] 	This ground is an extension of ground 2. Counsel for the appellant points out that the trial judge picked his 5-year starting point by taking into account that the large quantity of cannabis was not for personal consumption but for sale. The same factors, that is, the large quantity of cannabis and the fact that they were for sale, were used as aggravating factors to enhance the appellant's sentence by 2 years. It is clear from the sentencing remarks of the trial judge that the aggravating factors were used twice. Firstly, it was used to justify the higher starting point. Secondly, it was used as aggravating factors to enhance the sentence. The double use of the same factors was tantamount to double punishment and an error by the trial judge. This ground succeeds. 

Lack of Consideration Given to the Sentencing and Penalties Decree

[32]	By the time the appellant was convicted and sentenced, the Sentencing and Penalties Decree had come into effect. Pursuant to section 61(1) of the Sentencing and Penalties Decree, the trial judge was obliged to give due regard to the Decree and accordingly apply the relevant provisions. Counsel for the appellant raises five complaints in regard to the application of the Sentencing and Penalties Decree.

[33]	The first complaint is that the trial judge erred in not applying the principle of rehabilitation as provided by section 4 of the Sentencing and Penalties Decree. Section 4 provides five purposes for which sentence may be imposed. In summary they are: punishment of offenders, protection of community, deterrence for offenders, rehabilitation of offenders and denunciation of offences. The courts may apply any one or combination of these purposes.

[34] 	Counsel for the appellant points out that in his caution interview the appellant told the police that he intended to provide the necessities of life to his two children with the money earned by selling cannabis. Counsel cites the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) that encourages the sentencing courts to strike a balance between the rehabilitative needs of the offender, the protection of society and the interests of the victim. 

[35] 	The trial judge did not expressly identify the purpose for which the sentence was imposed on the appellant. From the length of the custodial sentence imposed on the appellant it could be implied that the purpose was both special and general deterrence. When there is evidence of commercial aspect in possessing a large quantity of drugs, both special and general deterrence play an important purpose. The purpose of punishment is not only to deter the appellant from committing similar offence in the future but other like-minded people should know that if they commit a similar offence they would be dealt with in the like manner. 

[36]	When there is evidence of commercial aspect for possessing a large quantity of an illicit drug, the motive of the offender is irrelevant in sentencing. Whether the offender is dealing in drugs to feed his children or to live a lavish lifestyle, the primary purpose of punishment is deterrence. Otherwise, all unemployed men will start running drug syndicates to feed their families. In the present case, there was a total lack of contrition by the appellant. The prospect of genuine rehabilitation becomes less significant when the offender takes no responsibility for his action. There is no error by the trial judge in failing to apply rehabilitation as one of the purposes of sentence in this case. 

[37]	The second complaint is that the trial judge failed to properly assess the appellant's culpability and degree of responsibility for the offence as required under section 4(2)(d) of the Sentencing and Penalties Decree. Counsel for the appellant submits that the appellant is less culpable because he committed the offence out of need to provide for his family. Counsel cites R v Afonso [2004 EWCA where the English Court of Appeal imputed lesser culpability on an offender who was an unemployed addict relying on supplying as a mean to finance his addiction. In the present case, the appellant is not an unemployed addict. He is a young man who has chosen an easy way to earn a living without any regard to the harm that cannabis brings to its users. The trial judge cannot be criticized for not giving any weight to the reason the appellant gave for committing the offence.

[38]	The third complaint is that although the trial judge was obliged to take victim impact in consideration under section 4(2)(e) of the Sentencing and Penalties Decree, the impact of drugs on society was erroneously taken into account without supporting evidence from an external source. First of all, there was no victim in this case in the true sense of that word. Secondly, unlike developed countries, Fiji does not have research institutions to carry out independent and credible surveys of the impacts of various crimes in our society. The lack of evidence of the impact of a certain crime on the society from an external source does not necessarily mean that the courts cannot take notice of the prevalence of a particular crime and its impact on the society as a whole (Oosthuizen [2006] 1 Cr App R (S) 385). What is important is that the seriousness of an offending should be determined on its own dimensions of harm and culpability, rather than as part of a collective social harm. While the trial judge acknowledged the collective social harm that the use of drugs brings, it is rather unfortunate that the judge did not expressly state that he was not imputing a higher culpability on the appellant using that harm. Instead the trial judge used the collective social harm among other factors to justify a higher starting point for sentence. 

[39]	The fourth complaint is that the trial judge failed to give any weight to previous good character of the appellant as required by section 4(2) (i) of the Sentencing and Penalties Decree. At the time the appellant was sentenced, he had one previous conviction for larceny by servant dating, 21 March 2002. In his sentencing remarks, the trial judge noted that although the appellant's previous conviction was not for a drug offence, the appellant was not entitled to a discount for previous good character. 

[40]	Section 5 of the Sentencing and Penalties Decree states that in determining the character of an offender the court may consider among other matters-

(a) 	the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions recorded against the offender;
(b) 	the general reputation of the offender; and
(c) 	any significant contributions made by the offender to the community, or any part of it.

[41]	In the present case, the trial judge unfortunately failed to direct his mind to any of the factors mentioned in section 5. The appellant committed the offence in this case on 15 January 2008, that is, six years after his only previous conviction for larceny by servant. There was no correlation between the two offences. One was a dishonest offence while the other was a drug offence. 

[42]	For larceny by servant the appellant was sentenced to 7 months imprisonment suspended for 2 years. The appellant maintained his good character for 6 years. The lapse of time between the old conviction and the new offence is a significant factor in assessing the character of an offender. As this Court said in Tirai (supra) at paragraph [8]:

"There are situations where, notwithstanding a previous conviction, it is appropriate to treat the offender as being rehabilitated and of good character. This will be especially so if there has been a considerable lapse of time since the last conviction [R v. Smith (1983) 5 Cr. App.R(s) 61]."

[43]	In my judgment the lack of correlation between the two offences and the considerable lapse of time were relevant in assessing the good character of the appellant. The lack of consideration of these factors led the trial judge to erroneously disregard the previous good character of the appellant. Some reduction should have been made in sentence to reflect the previous good character of the appellant. 

[44]	The final complaint summarizes all the grounds of appeal. Counsel for appellant submits that due to the combination of errors alleged in the grounds of appeal, the appellant did not receive a just punishment in all the circumstances as required by section 4(1)(a) of the Sentencing and Penalties Decree. Since most of the complaints regarding the appellant's sentence have been sustained, in my judgment, it could be said that the appellant did not receive a just punishment in all the circumstances as required by section 4(1)(a) of the Sentencing and Penalties Decree.

Conclusion

[45] 	For the reasons given, the appeal against sentence should be allowed. The sentence of 5 years and 11 months imposed by the trial judge is quashed. In lieu thereof, the appellant is sentenced to 3 ½ years imprisonment with a non-parole period of 2 ½ years, effective from 26 February 2010. 

Chandra, JA: I concur.

Lecamwasam, JA: I concur.

Result

Appeal against sentence allowed.

……………………................
Justice Suresh Chandra
Judge of Appeal

………………………………
Justice Susantha Lecamwasam
Judge of Appeal

……………………………….
Justice Daniel Goundar
Judge of Appeal

Solicitors:
Office of the Director of Legal Aid Commission for Appellant
Office of the Director of Public Prosecutions for State