IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 026 of 2019
[High Court of Suva Criminal Case No. HAC 355 of 2016]

BETWEEN: 	

ARISI KAITANI
Appellant

AND:	

STATE
Respondent

Coram	: 	Prematilaka, JA

Counsel:	Mr. S. Fesaitu for Appellant 
	Ms. S. Kiran for the Respondent

Date of Hearing: 	08 June 2020

Date of Ruling: 	17 June 2020

RULING 

[1]	The appellant had been charged with the appellant in AAU 174/2017 (Atekini Matakorovatu) in the High Court of Suva on two counts of Unlawful Possession and Unlawful Cultivation of Illicit Drugs contrary to section 5(a) of the Illegal Drugs Control Act. The information reads as follows. 

	FIRST COUNT
Statement of Offence

	UNLAWFUL POSSESSION OF ILLICIT DRUGS: contrary to section 5(a) of the Illicit Drugs Control Act 2004.

Particulars of Offence
	ARISI KAITANI AND ATIKINI MATAKOROVATU on the 15th day of September 2016 at Kadavu in the Eastern Division, unlawfully possessed 1184.4grams of an illicit drug known as cannabis sativa.

SECOND COUNT
Statement of Offence

	UNLAWFUL CULTIVATION OF ILLICIT DRUGS: contrary to section 5(a) of the Illicit Drugs Control Act 2004.

Particulars of Offence

	ARISI KAITANI AND ATIKINI MATAKOROVATU on the 15th day of September 2016 at Kadavu in the Eastern Division, unlawfully cultivated 7975.7 grams of an illicit drug known as cannabis sativa.

[2]	After full trial, on 09 July 2018 two assessors found the appellant not guilty of both offences, while the other assessor found him guilty of both of them. The learned High Court judge had agreed with the majority of assessor (and disagreed with the minority) on the first count and acquitted the appellant of the count on ‘possession’. The learned trial judge had disagreed with the majority of assessors (and agreed with the minority) in respect of the second count of ‘cultivation’ and convicted the appellant guilty as charged in the judgment delivered on 10 July 2018. The appellant was sentenced on 16 July 2018 to 14 years and 02 months of imprisonment subject to a non-prole period of 10 years and 02 months.

 [3] 	Legal Aid Commission had tendered an untimely notice of appeal and an application for enlargement of time 16 April 2019 against conviction and sentence.  The delay is 08 months. The appellant’s written submissions had been tendered on 15 April 2019. The State had tendered its written submissions on 01 June 2020. 

 [4]	The brief summary of facts is as follows. The prosecution had led evidence of nine witnesses and relied on direct evidence and the admissions made by the accused in the cautioned interview to prove the two charges. The accused had given evidence and called one witnesses. Having considered the evidence of police witnesses PW1, PW2, PW3 and the military officer PW6 who took part in the raid, the learned trial judge had accepted their evidence that they saw the appellant uprooting plants in the farm before they were arrested. Given the demeanour and deportment of the accused when he gave evidence taken together with all the relevant evidence led in this case, the learned trial judge had found the appellant’s evidence that he was arrested on his way while he was looking for the herbal medicine and brought to the farm thereafter, not credible and reliable.

[5]	Presently, guidance for the determination of an application for extension of time within which an application for leave to appeal may be filed, is given in the decisions in Rasaku v State CAV0009, 0013 of 2009: 24 April 2013 [2013] FJSC 4, Kumar v State; Sinu v State CAV0001 of 2009: 21 August 2012 [2012] FJSC 17.
 
[6]	In Kumar the Supreme Court held

	‘[4] Appellate courts examine five factors by way of a principled approach to such applications. Those factors are:
	(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?

[7]	Rasaku the Supreme Court further held

	‘These factors may not be necessarily exhaustive, but they are certainly convenient yardsticks to assess the merit of an application for enlargement of time. Ultimately, it is for the court to uphold its own rules, while always endeavouring to avoid or redress any grave injustice that might result from the strict application of the rules of court.’

[8]	Under the third and fourth factors in Kumar, test for enlargement of time now is ‘real prospect of success’. In Nasila v State [2019] FJCA 84; AAU0004.2011 (6 June 2019) the Court of Appeal said 

  	‘[23] In my view, therefore, the threshold for enlargement of time should logically be higher than that of leave to appeal and in order to obtain enlargement or extension of time the appellant must satisfy this court that his appeal not only has ‘merits’ and would probably succeed but also has a ‘real prospect of success’ (see R v Miller [2002] QCA 56 (1 March 2002) on any of the grounds of appeal……’

[9]	I would rather consider the third and fourth factors in Kumar first before looking at the other factors which will be considered, if necessary, in the end.

	Grounds of appeal

		Against conviction		

1.	THAT the Learned Trial Judge erred in law and facts by not directing himself and the assessors on the principles of Turnbull, given that the Appellant disputed identification, therefore as a result of the non-direction has caused a substantial miscarriage of justices.

2.	THAT the guilty verdict is inconsistent.

3.	THAT the  Learned Trial Judge did not provide cogent reasons in disagreeing with the majority opinion of the assessors that the Appellant is not guilty for the offence of unlawful cultivation of illicit drugs.

4.	THAT the Learned Trial Judge ought to have given the parties the opportunity to raise any objections (if any), of him hearing the case against the Appellant, given that the trial Judge had heard the facts and sentenced the co-accused who pleaded guilty to both offences, which the Appellant is being charged with.

Against Sentence

5.	THAT the Learned Trial Judge erred in law and principles by using the same aggravating factor to select a starting point of 7 years, and then giving 11 years to the same aggravating factor, resulting in the excessive enhancement of the sentence.’

	01st ground of appeal

[10]	The appellant complains that the learned trial judge had failed to give Turnbull directions to the assessors. The evidence reveals that there had been evidence that the police officers saw the appellant uprooting cannabis plants in the farm and they arrested him inside the farm. The appellant’ position was that he was arrested when he was on his way looking for herbal medicine and was then brought to the farm by the police officers. Therefore, the issue was not regarding his identity but as to the credibility of the two versions. The trial judge had accepted the prosecution evidence and rejected the appellant’s position. This is clearly not a situation where Turnbull directions were required as it was not a case of disputed identity (see Korodrau v State [2019] FJCA 193; AAU090 of 2014 (03 October 2019).
 
	02nd ground of appeal

[11]	The appellant argues that since he was acquitted of the charge relating to ‘possession’ it was illogical to convict him for ‘cultivation’ and therefore the verdicts are inconsistent.

[12]	This contention is misconceived. The reasons given by the learned High Court judge for his decision to acquit the appellant of the first count are as follows.  

	‘11. In relation to the first count, I find that the evidence led by the prosecution leaving aside the cautioned interview which I have decided to disregard, does not establish beyond reasonable doubt that the accused was in possession of the loose material that were found in the farm including the farm house. Those loose material may be parts of the plants that would have been cultivated by the accused. But the prosecution had failed to prove that the accused had the custody and control of those loose material.

[13]	It is clear that the conviction of the appellant on the second count was based on the eye-witness evidence of the police officers on cultivation whereas the first count could not be sustained in the absence of the cautioned interview which had not been accepted by the learned trial judge to attribute any ownership to or knowledge of the appellant of the farm house where loose material supposed to be cannabis was found. Thus, the two verdicts are not inconstant at all  and can stand together [see Balemaira v State [2013] FJSC 17; CAV0008 of 2013 (06 November 2013) and Vulaca v State [2013] FJSC 16; CAV0005.2011 (21 November 2013)].

 	03rd ground of appeal

[14]	The appellant’s argument here is that the learned trial judge had not given cogent reasons for differing with the majority opinion of not guilty in respect of count 02. I have examined the judgment carefully and find that the learned trial judge had given convincing reasons to justify his disagreement with the majority of assessors on count 02 i.e. ‘cultivation’. Those reasons are found in paragraphs 04 to 10 and 13 of the judgment. The reasons provided in the judgment taken together with the summing-up in accordance with section 237(4) of the Criminal Procedure Act do satisfy the requirements when a trial judge dissents with the opinion of the majority of assessors as set out in Ram v Director of Public Prosecutions [1999] FJSC 1; CAV0001U of 1998S (05 March 1999),  Lautabui v State [2009] FJSC 7; CAV0024.2008 (6 February 2009), Baleilevuka v State [2019] FJCA 209; AAU58 of 2015 (03 October 2019) and Singh v State [2020] FJSC 1; CAV 0027 of 2018 (27 February 2020).   

	04th ground of appeal

[15]	The appellant complains that the learned trial judge ought to have given an opportunity for the appellant to raise objections (if any) on his hearing the case against the appellant after the co-appellant pleaded guilty to both offenses set out in the information. 

[16]	The law is that any such objection must be taken up by the accused or his counsel before the trial judge who then could rule on it. Law does not require the trial judge to act ex mero motu, or ex proprio motu, or sua sponte (on his own motion) in asking the accused or his counsel whether there is any reservation for the judge to continue to hear the case against the remaining accused [see Tikoniyaroi v State [2011] FJCA 47; AAU0043 of 2005 (29 September 2011)]. In Yang Xieng Jiong v State [2019] FJCA 17; AAU0077 of 2015 (07 March 2019), the facts were different and cannot be applied to the facts of this case. 

[17]	In any event the State has submitted that from all records available the appellant or his counsel had not made any recusal application. Further, though the co-appellant had pleaded guilty to both counts the learned trial judge had acquitted the appellant of the first count on ‘possession’ clearly showing that the co-appellant’s guilty plea had not influenced the trial judge’s decision in any way.     

[18]	Before parting with the appeal grounds against conviction, I should mention that I can only concur with the sentiments expressed by Pathik J, in Khan  v  State  [2009] FJCA 17; AAU0046.2008 (13 October 2009)  regarding the appellant’s grounds of appeal. 
	‘[18] (a) The grounds advanced by the appellant are completely without merit. In fact I find that this is a frivolous and vexatious application…...

	05th ground of appeal 

[19]	Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40;  (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For an untimely ground of appeal against sentence to be considered arguable there must be a real prospect of its success in appeal. The aforesaid guidelines are as follows.

	(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 consideration. 

[20]	The appellant argues that the learned trial judge had erred in law and sentencing principles by using the same aggravating factors to select the starting point and then adding 11 years for the same aggravating factor resulting in the excessive enhancement of the sentence. 

[21]	The learned trial judge had taken 07 years as the starting point having stated as follows.  

	‘Coming back to your case, you have been involved in cultivating 824 plants with another. Your sentence should therefore be within the range of 7 to 14 years imprisonment as you have been engaged in a large scale commercial cultivation which is more than 100 plants. 100 plants would have the assumed yield of 4000grams and therefore, this tariff is in line with Sulua (supra). It is pertinent to note that the assumed yield of 824 plants is 32960 grams or 32.96 kg.’

[22]	Then in adding another 11 years to the starting point for aggravating factors the learned trial judge had stated:

	‘13.According to the categorisation, I selected the starting point based only on the fact that you have cultivated more than 100 plants and did not take into account the fact that you cultivated 824 plants. In my view, the number of plants you have cultivated beyond the 100 plants which is used to identify the tariff should be taken into account as an aggravating factor since that was not considered in selecting the starting point.

14. In your case, you have cultivated 724 plants more than the minimum number of plants stipulated for category 4. Considering the said quantity of plants which clearly suggests that you have been involved in a very large scale cultivation but also bearing in mind that another person was also involved in this cultivation, I would add 11 years to your sentence. It is pertinent to note that, since cultivating 100 plants warrants a minimum of 7 years imprisonment according to the relevant tariff and if I am to add 7 years for each set of 100 plants you have cultivated; that would bring the term of imprisonment to 56 years. I decided to mention this, merely for you to understand the seriousness of the offence you have committed.’

[23]	It appears from the evidence that cannabis plants were being uprooted by the appellant and the co-appellant in AAU 174/2017 (Atekini Matakorovatu) in a farm when the police arrested them. The police officers had uprooted a total of 824 plants which included the plants uprooted by the appellant and his co-appellant. Evidence had not revealed how many plants had been uprooted by each of the accused. For the purpose of sentence of the appellant he had been considered as having been responsible for the cultivation of all 824 plants. Evidence had also not revealed whether the appellant and his co-appellant were uprooting cannabis plants in their own farm or whether they had been employed as workmen for wages or any other form of remuneration by someone who owned the farm. It is also not in evidence as to whether they participated only in the act of uprooting the plants on the day in question or whether they had been involved from the beginning in bringing the plants up till the stage of harvesting. Clearly, these considerations had not gone into the equation in the matter of sentence. Should such matters or similar aspects not be considered in the matter of sentence when accused are sentenced for ‘cultivation’ as aggravating or mitigating features?  Of course, to unearth these matters there needs to be an efficient investigation by well-trained law enforcement officers. On the other hand if the legislative intention is zero tolerance in the cultivation of cannabis then sentencing anyone caught in any of the acts deemed to constitute cultivation with deterrent sentences in respect of the whole of the end product regardless of his role, degree of involvement, benefits to be received etc. may be justified. Perhaps, these are matters for the full court of the Court of Appeal or the Supreme Court to consider in the future.  

[24]	Be that as it may, I do not think that the learned trial judge could be faulted for having taken into account the substantially high quantity as an aggravating factor, for he had taken as the starting point the lowest of the range of sentencing tariff prescribed in  Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012). It is too naive to argue that any weight over and above the threshold of a category should attract the same sentence. Had the learned trial judge started at a higher end of the tariff there would have been some merit in the appellant’s argument. 

[25]	Sulua was a case concerning possession; not cultivation. However, the majority of judges of the Court of Appeal in Sulua had determined that the sentencing guidelines for possession of cannabis sativa should apply to offending verbs of "acquire, supplies, produces, manufactures, cultivates, uses or administers" in section 5(a) of the Illicit Drugs Control Act 2004. Sulua guidelines were based only on the weight of the illicit drug. They were made applicable to other acts too namely ‘transfer, transport, supply, use, manufacture, offer, sale, import, or export’ of an illicit drug as set out in section 5(b).

[26]	However, it appears that the sentencing judges have not always applied Sulua guidelines when it comes to offences involving cultivation. Some examples can be  taken from the learned trial judge’s sentencing order itself.

[27]	In Tuidama v State [2016] FJHC 1027; HAA29.2016 (14 November 2016) the High Court had decided to apply the following tariff based on the number of cannabis plants for the offence of unlawful cultivation of illicit drugs calling in aid the judgment in Meli Bavesi v State [2004] FJHC 93; HAA 0027.2004;

a.	The growing of a small number of plants for personal use by an offender on a non-commercial basis - 1 to 2 years imprisonment; [Cultivating up to 10 plants]
b.	Small scale cultivation for a commercial purpose with the objective of deriving a profit - 3 to 7 years imprisonment; [Cultivating more than 10 plants up to 100 plants]
c.	Large scale commercial cultivation - 7 to 14 years imprisonment. [Cultivating more than 100 plants]

[28]	In State v Nabenu [2018] FJHC 539; HAA10.2018 (25 June 2018) the High Court suggested the following tariff after considering a number of previous decisions including Tuidama;

a.	The growing of a small number of plants (less than 9 plants with assumed yield of 40g per plant) for personal use by a first offender - non- custodial sentence or a fine at the discretion of the court.
b.	Small scale cultivation (10 to 30 plants with assumed yield of 40g per plant) for a commercial purpose with the objective of deriving a profit - 1 to 3 years imprisonment, with or without a fine at the discretion of the court.
c.	Medium scale commercial cultivation (30 -100 plants) - 3 to 7 years imprisonment with or without a fine at the discretion of the court.
d.	Large scale cultivation capable of producing industrial quantities for commercial use (more than 100 plants) 7 - 14 years imprisonment with or without a fine at the discretion of the court.

[29]	Nabenu inter alia had equated the number of plants to a corresponding assumed weight. Both Tuidama and Nabenu had also considered the purpose of cultivation (i.e. personal or commercial) and scale of the cultivation to determine the sentence. 

[30]	Dibi v State [2018] FJHC 86; HAA96.2017 (19 February 2018) had referred to In re Koroi [2012] FJHC 1029; HAR002-006.2012 (20 April 2012) where the following tariff for cultivation had been pronounced deviating from Sulua on the basis that  Sulua did not apply to sentences involving cultivation. 

	‘19.] For ease of reference those tariffs as suggested by the U.K. Sentencing Council and adopted by this Court in Koroi are:
(i) Possession of up to 100 grammes or cultivation of no more than 5 plants, non-custodial sentences at the discretion of the Court

(ii) Possession of 100-1000 grammes and cultivation of 5-50 plants; custodial sentences in the range of one year to six years

(iii) Possession of more than 1000 grammes and cultivation of more than 50 plants, custodial sentences of six years or more
(iv) Possession of very large quantities (5kg or more) custodial sentences in the range of 10 to 15 year
20.] There will be times when the plants are many, but small, yielding a minimal weight (as in the present appeal) and a balance will have to be struck between use of the above categories.

[31]	Tuidama had been criticized in Dibi on the ground that it had failed to consider Koroi and instead followed ‘discredited’ Meli Bavesi. 

[32]	Meli Bavesi in considering an appeal against possession stated the following guidelines for cultivation and possession.  

	‘Category 1 – The growing of a small number of cannabis plants for personal use by an offender or possession of small amount of cannabis coupled with “technical” supply of the drug to others on a non-commercial basis. First offender a short prison term, perhaps served in the community. Sentencing point 1 to 2 years.
Category 2 – Small scale cultivation of cannabis plants or possession for a commercial purpose with the object of deriving profit, circumstantial evidence of sale even on small scale commercial basis. The starting point for sentencing should generally be between 2 to 4 years. However, where sales are limited and infrequent and lowest starting point might be justified.
Category 3 – Reserved for the most serious classes of offending involving large scale commercial growing or possession of large amounts of drug usually with a considerable degree of sophistication, large numbers of sales, circumstantial or direct evidence of commercial involvement the starting point would generally be 5 to 6 years.

[33]	There is an appeal pending against the decision in Tuidama filed by the State bearing No. AAU003 of 2017 where the State had in its written submissions (a copy of which was filed in this appeal) had demonstrated with 08 examples that while some High Court judges follow Sulua guidelines others rely on Tuidama, Dibi and Nabenu and stated that this had resulted in lack of uniformity in the sentencing in cases involving cultivation of illicit drugs. Regarding this anomaly in sentencing I can only reiterate my observations in paragraph 25 of the Ruling in Kumar v State [2020] FJCA 64; AAU033.2018 (28 May 2020) made on a similar situation in sentencing relating to aggravated burglary. 

[34]	It has to be admitted that there was no specific discussion on sentencing guidelines on cultivation in Sulua or in subsequent decisions in State v Dreduadua [2020] FJCA 7; AAU65 of 2016 (27 February 2020) and State v Mata [2019] FJCA 20; AAU0056 of 2016 (07 March 2019) as this issue of disparity of sentencing arising from different tariff regimes was not argued before the Court of Appeal. Therefore, there is an urgent need for the Court of Appeal or the Supreme Court to revisit the sentencing guidelines on cultivation of illicit drugs in the light of the current situation which has surfaced. Whether sentencing in offences involving cultivation should be based on weight of cannabis or the number of plants or a combination of both cultivated in any given extent of land where cannabis plants are found with all other factors being considered as aggravating or mitigating the offence, would be a vital question to answer. Similarly, if the number of plants could be equated scientifically to a corresponding weight then whether Sulua guidelines could still be applied perhaps with suitable modifications even in the case of cultivation with other aggravating and mitigating factors specific to cultivation being taken into account in arriving at the final sentence, is also another matters to be considered.

[35]	Though, the ground of appeal urged by the appellant against sentence does not have a reasonable prospect of success the above issue poses a question of law requiring no leave to appeal. However, the appeal is out of time.

[36]	In the circumstances, I am inclined to grant enlargement of time against sentence though the delay is substantial and the reasons for the delay are not convincing. I also do not think that there will be prejudice to the State as a result of enlargement of time.

[38]	Therefore, enlargement of time to appeal against conviction is refused but enlargement of time to appeal against sentence is allowed.

Order 

1.	Enlargement of time against conviction is refused.
2.	Enlargement of time against sentence is allowed.

					
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL