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In re Koroi [2012] FJHC 1029; HAR002-006.2012 (20 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

Criminal Miscellaneous Case Nos. HAR 002 of 2012
HAR 003 of 2012
HAR 004 of 2012
HAR 005 of 2012
HAR 006 of 2012

IN THE MATTER OF:

1. Mesulame Koroi
2. Joseva Rarasea
3. Matereti Tagica
4. Amani Tagica
5. Esala Tagica

   Respondents

AND:

THE STATE
Interested Party

BEFORE : Mr. Justice P. K. Madigan
COUNSEL : Ms. S. Vaniqi for the Respondents
Mr. P. Bulamainaivalu for the State

Dates of Hearing : 7 and 14 March 2012
Date of Judgment : 20 April 2012

JUDGMENT
[CANNABIS SENTENCING]

1. On the 3rd February 2012 in the Magistrates Court at Suva, these five respondents entered pleas of guilty to various charges of unlawful cultivation and possession of illicit drugs contrary to section 5(a) of the Illicit Drugs Control Act 2004. On the 1st March they were sentenced by the Magistrate. The first three Respondents who had been charged with cultivation of illicit drugs were sentenced to 17 months and twenty eight days imprisonment (with fifteen months of that term suspended for two years) and the fourth and fifth respondents charged with possession of illicit drugs were sentenced to thirteen months and twenty eight days (with eleven months of that term suspended for two years.
   
2. Pursuant to section 260(1) of the Criminal Procedure Decree 2009, this Court thereupon called for the records of proceedings in the Court below to satisfy itself as to the correctness of the sentences there handed down to these five respondents.
   
3. The review was first called in this Court on the 7th March 2012 when Goundar, J. invited counsel for the respondents and counsel for the interested party to file written submissions on the matter. Despite the State not appealing the sentences, they have filed extremely detailed and comprehensive submissions which have been of great assistance to this Court. Counsel for the respondents have also filed submissions, more by way of mitigation than in law.
   
4. From the outset, Counsel for the State has asked that this Court, in deciding upon this review, hand down a guideline judgment in terms of section 6 of the Sentencing and Penalties Decree 2009. Whilst this may well be a desirable course of action, the legislation precludes this Court from so doing. Section 6(3) of the Decree only allows this Court to even consider whether to give a guideline judgment if it is hearing an appeal on sentence from the Magistrates Court. These proceedings are not an appeal against sentence: they are a review of sentences handed down below. The State for some reason did not appeal the sentences, despite now vigorously opposing the sentences before me.
   
5. FACTS:
   

The first respondent was charged with unlawful cultivation of 14 plants of marijuana yielding 1361.3 grams of cannabis sativa. He is a farmer, 31 years old and says that his cultivation was for his own personal use and he had no intention of commercial supply.

The second respondent was also charged with unlawful cultivation of illicit drugs, being 4 plants yielding 3kg of cannabis sativa. He too is a farmer aged 35 and he too claims cultivation for his own personal use without intent to supply. He has a clear record.

The third respondent was charged with unlawful cultivation of illicit drugs, being 2 plants yielding 121.9 grammes of cannabis sativa. He is a farmer, 25 years old with a clear record and grew the drug for his own use with no intention to supply.

All of these three co-operated with the authorities and personally took the Police to show them the plants growing.

6. The Magistrate passed the same sentence on each of these three: and that was 18 months imprisonment reduced by a period of three days, the time each had spent in remand before plea. It was then ordered that these sentences of 17 months and twenty-eight days were to be served in custody for two months and twenty-eight days and the balances of fifteen months were to be suspended. These same sentences were passed despite the enormous differences in the amount of drug being produced by the cultivation. These differences (between 121 grams and 3 kg) should have been reflected in the sentences passed.
   
7. Although the quantities being produced are small, and although there is no indication that any of these three respondents were intending to sell or otherwise distribute these drugs, a differentiation in sentencing between possessors of cannabis and cultivators of cannabis must be made. In England where the penalties for possession of cannabis are low, the courts have said that cultivation nevertheless remains a serious offence. It was said in Herridge [2006] 1Cr App R (S) 252 that cultivation would ordinarily attract a custodial sentence.
   
8. The English Court of Appeal in Auton and Others [2011] EWCA Crim 76 dealt with sentencing for cultivation of cannabis. In deciding that cultivation of any amount deserved a custodial sentence, the Court said this:
   

"It involves not simply possessing, but creating, a drug which is illegal to have...There is, as this Court remarked in Herridge (Supra) a significant element of calculated defiance of the law."

And later,

"A defendant who embarks upon such cultivation even exclusively for his own use, is avoiding the risk of being caught buying on the open market and making available to himself large quantities of strong cannabis. The total drug available in the community is appreciably increased by that operation."

And still later,

"Cultivation is further widening, and socializing the use of an illegal drug and making it available in circumstances where the risk of detection is reduced."

9. Given that persuasive authority, it can now be said that only in very exceptional circumstances in Fiji can sentences for cultivation be suspended.
   
10. Cultivation of marijuana in Fiji is an ever burgeoning problem. The legislature made no distinctions in the Illicit Drugs Act 2004 between marijuana or any 'hard' drugs, and in Fiji marijuana is the illicit drug that is most prevalent; it is the drug that is more and more seducing our young people and leading to the involvement of organized crime in supply, transportation and distribution. The legislature, although making no distinction between possession, supply or cultivation or even manufacture, has been harsh in the penalties ascribed to any dealings with drugs and the Courts must pass sentences in accordance with that prescription.
    
11. The decision of Winter, J in Meli Bavesi [2004] was handed down on 14 April 2004 some three months before the Illicit Drugs Control Act was assented to by the President. It cannot therefore be used as a valid precedent for sentences passed pursuant to Section 5 of the Act: nevertheless it provides useful categories of offending for drug offences which remain valid in part for offences under the later legislation.
    
12. The categories expounded in that case were these:
    

(a) The first category of offending was for growing a small number of cannabis plants for personal use or possession of a small quantity with the potential to be able to supply to others on a non-commercial basis.

(b) The second category was for small scale cultivation of cannabis plants or possession for commercial purposes, albeit on a small scale commercial basis.

(c) The most serious offending involving large scale commercial growing or possession of large quantities with direct evidence of commercial involvement.

13. In the case of Vakalalabure (2006) FJSC8, The Supreme Court said:
    

"It is a fundamental principle of our criminal law, that a person must not be punished except for offences for which he has been tried and convicted."

With this principle in mind, an accused who has been found guilty of possession of marijuana cannot be sentenced on the basis that he had the intention to supply the drug to others. If that be the State's case, then the charge should be one of supply and not possession. It is very unfortunate that we do not have in Fiji a separate offence of 'possession with intent to supply'. The categories set out in Meli Bavesi are therefore invalid where they refer to possession for commercial purposes, and the sentences suggested therein are also invalid because the maximum penalty then pertaining for the offence was 8 years and not life imprisonment. It is axiomatic that Meli Bavesi should no longer be regarded as a good precedent. However there is no reason why evidence of obvious intention to supply such as packaging, cash at hand, scales for weighing, etc. cannot be seriously aggravating in a charge or possession.

14. Bearing these categories in mind and in respect of cultivation and possession only, this court would venture to say that appropriate starting point of sentence could now be:
    
    • (i) Possession of up to 100 grams or cultivation of no more than 5 plants, non custodial sentences at the discretion of the court.
    • (ii) Possession of 100 – 1000 grams and cultivation of 5 – 50 plants; custodial sentences in the range of one year to six years.
    • (iii) Possession of more than 1000 grams and cultivation of more than 50 plants, custodial sentences of six years or more.
    • (iv) For possession of very large quantities (5 kg or more) custodial sentences in the range of ten to fifteen years.
      
15. The length of sentence would depend of course on the amount possessed or number of plants being cultivated and would depend on the degree of sophistication of the cultivating and the purity of the drug possessed.
    
16. Sentences passed in England for cultivation of cannabis are not helpful precedents for cultivation sentences in Fiji. England has a cold climate and normally cultivation there is on a small scale, hydroponically, in glass houses, bedrooms or attics. Fiji has a tropical climate with abundant sunshine and rich soil and the agrarian farming of cannabis plants is easy and fruitful. As such harsher penalties than those pertaining in England must be passed to stem the tide of easily produced recreational drugs perverting our young people.
    
17. THIS REVIEW
    

In the light of the suggested sentencing parameters in paragraph 13 (supra), the sentence passed on the third respondent, Matereti Tagica, is appropriate, and this Court declines to review it. The first and second respondents, having a small number of plants are still producing large amounts of illicit drug (1361.3 grams and 3 kg respectively). Such a large amount of narcotic belies their claim of possession for own use, although without being charged with supply that cannot be a factor in the sentencing. What is a relevant factor is the weight of the drug seized. The sentence passed on the first respondent is set aside and a new sentence of two years imprisonment is substituted. It will not be suspended. The sentence against the second respondent is also vacated and for his possession of 3 kg of marijuana, a very large amount, he is sentenced to five years imprisonment, and with no suspension of sentence.

18. The sentences for the fourth and fifth respondents are also set aside. The fourth respondent was in possession of only 25.9 grams of cannabis and an appropriate sentence against him would be a fine or a short suspended sentence. His sentence below will not be reviewed. The fifth respondent was in possession of 284 grammes. An appropriate sentence on him would have been eighteen months immediate custodial imprisonment. This was the sentence passed on him but it was for the most part suspended. Suspension of sentence for possession of this amount should have not been ordered, but given that this is a review and he has every expectation of release within weeks I choose not to review the sentence passed on him below.
    
19. For clarity the sentences now imposed on the five respondents are as follows:
    

20. The first respondent will serve two years' imprisonment dated from 1st March 2012. He will serve eighteen months before he is eligible for parole. The second respondent will serve five years' imprisonment dated from 1st March 2012. He will serve a minimum term of three years.
    

Paul K. Madigan
JUDGE

At Suva
20th April 2012