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

CRIMINAL APPEAL NO.AAU 123 of 2017
[High Court of Suva Criminal Case No. HAC 287 of 2015S]

BETWEEN:

ACURA QARANIVALU
Appellant

AND:

STATE
Respondent

Coram	: 	Prematilaka, JA

Counsel:	Appellant in person
	Mr. M. Vosawale for the Respondent

Date of Hearing: 	28 September 2020

Date of Ruling: 	29 September 2020

RULING 

[1]	The appellant had been charged in the High Court of Suva on a single count of Cultivation of Illicit Drugs contrary to section 5(a) of the Illegal Drugs Control Act of 2004. The information read as follows. 

‘Statement of Offence
UNLAWFUL CULTIVATION OF ILLICIT DRUGS: Contrary to section 5(a) of the Illicit Drugs Control Act 2004.
Particulars of Offence
ACURA QARANIVALU on the 3rd day of January 2012, at Vuravu Farm, Daku Village, Kadavu, in the Southern Division, without lawful authority cultivated 32 plants of cannabis sativa an illicit drug, weighing 11.0 kilograms.
  
[2]	At the conclusion of the summing-up, on 06 June 2017 the assessors had unanimously opined that the appellant was guilty as charged. On the same day the learned trial judge had agreed with the assessors, convicted the appellant and sentenced him on 07 June 2017 to 12 years of imprisonment subject to a non-prole period of 10 years.

[3] 	The appellant had signed a timely notice of appeal on 12 June (received by the CA registry on 18 August 2017) against conviction and sentence. Amended grounds of appeal and written submissions had been tendered by the appellant on 09 October 2019. The State had tendered its written submissions on 10 June 2020. 
                                                                                                                                                                                                              
 [4]	The brief summary of facts according to the sentencing order is as follows. 

‘2.	The facts of your case were as follows. On 3 January 2012, the police received information that people were cultivating cannabis sativa plants (i.e. Marijuana plants) around the Vuravu Settlement area. A team of police officers from Kadavu Police Station then went to one Apakuki’s house to execute a search warrant. Another group of police officers raided a nearby farm where numerous marijuana plants were uprooted. Police discovered that you were drying 32 plants of marijuana at Apakuki’s house.

3.	They seized the plants and took it to Koronivia Research Station for analysis on 9 January 2012. It was found that the plants were cannabis sativa and they weighed 11 kilograms. You were caution interviewed by police on 7 January 2012. You admitted to police that you had been cultivating cannabis sativa plants, with others, on 3 January 2012. As a result, you were later charged for unlawful cultivating of illicit drugs.’

[5]	In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.

[6]	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 a ground of appeal timely preferred against sentence to be considered arguable there must be a reasonable 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. 

[7]	Grounds of appeal urged on behalf of the appellant are as follows.

		‘Against conviction

1.	THAT the Learned Trial Judge erred in law and in fact when he did not address properly, fairly, fully, adequately and sufficiently the failure of the Police charging officer to inform the Appellant the rights of counsel presence thus violating Section 13(1)(c) of the 2013 Fiji Constitution.

2.	THAT the Learned Trial Judge erred in law and in fact when he considered that the prosecution has proven their case when in fact the elements of the charge is not proved beyond reasonable doubt that the Appellant unlawfully cultivate the alleged illicit drugs on the 3rd day of January, 2012.

3.	THAT the Learned Trial Judge erred in law and in fact when he had convicted the Appellant on the category (4) scale when in fact there was evidence in the Appellants charge statement line (5) that he was charged with the quantity of 3.2kg drugs equivalent to category (3) scale therefore the conviction was unsafe and unfair giving rise to a grave and substantial injustice.

4.	THAT the Learned Trial Judge erred in law and in fact when he overlooked and ignored the substantial material irregularity regarding the rightful and or correct quantity weight of the cannabis sativa (marijuana) uprooted and found by Police on the 3rd day of January, 2012, where upon no formal enquiry was made on the irregularity nor any verification on which the Learned Prosecution must give credible reasons regarding the evident irregularity thus the Appellants trial was held unfairly resulted to the conviction being unsafe.

5.	THAT the Learned Trial Judge erred in law and in fact when he ruled the allege confession as admissible, failed to analyse the Appellant oppressive treatment, breaches of the Judges Rule and constitutional rights during the whole period of police custody thus the failure to analyse the Appellants defence of the voir dire ruling and the summing up gives rise to an unfair trial and a perverse voir dire rulings.

6.	THAT the Learned Trial Judge erred in law and in fact by ignoring and had overlooked the fact that the Appellant was not apprehend by the police cultivating the illicit drugs nor was there any illicit drug found in the appellant’s possession.  In fact the Appellant was forced, threaten, handcuffed and mistreated by the interview office and charging office to self-incriminate himself in committing the offence charged.

Against sentence 

7.	THAT the sentence passed is unsafe because the actual quantity of weight and plants evidence on the record disputes the evidence whether it was correct to convict and sentence the Appellant to category (4) or category (3).

8.	THAT the learned sentencing Judge erred when he mistook and overlooked the facts of the case whilst sentencing the Appellant.

9.	THAT the learned sentencing Judge erred when he had imposed a non-parole term of 10 years too close to the head sentence, thereby violating Section 18 of the sentencing and Penalties Act.

10.	THAT the Learned Sentencing Judge erred when he directly imposed the non-parole term of 10 years without giving the Appellant an opportunity to persuade the court whether to fix a non-parole term on the case or not as an approach currently enforced by the Supreme Court of Fiji this year in the case appeal of Nacani Timo v. The State CAV.

11.	THAT the Learned Sentencing Judge erred when he considered or took into account as aggravating factor the quantity of illicit drugs already part of the particulars of offence, thus enhancing the sentence higher causing the appropriate sentence to be inappropriate.”

01st ground of appeal

[8]	The appellant’s criticism relates to his cautioned interview. He complains that he had not been afforded the constitutional right under section 13(1)(c) of the Constitution in that the interviewing officer had not informed him of his right to communicate with a lawyer. I have perused the cautioned interview and find that in Q3 the appellant had been clearly informed of his right to consult a lawyer but the appellant had replied in the negative indicating waiver of that right.

[9]	The trial judge in paragraph 3 of the voir dire ruling dated 07 June 2017 had given his mind to this matter and stated that the appellant had been afforded inter alia his right to counsel.

[10]	This ground of appeal has no reasonable prospect of success.

 	02nd ground of appeal 

[11]	The appellant argues that the elements of the charge namely that he had unlawfully cultivated 32 plants of cannabis sativa weighing 11 kg on 03 January 2012 had not been proved by the prosecution beyond reasonable doubt and the trial judge had erred in holding otherwise. 

[12]	According to the summing-up, it appears to me that the only evidence that could connect the appellant with the charge was his cautioned interview. The relevant paragraphs in the summing-up are as follows.

‘14.	The prosecution’s case were as follows. Upon information received, D/Sergeant 1739 Adriu Naitukuni (PW1) led a team of 5 police officers to execute a search warrant at one Apakuki’s house at Vuravu Settlement. It was the 3rd of January 2012. According to the prosecution, information was received that people were cultivating cannabis sativa plants in the area. According to the prosecution, at Apakuki’s house, the police saw 24 marijuana plants, belonging to the accused, been hung out in the open to dry. They seized the plants and later took it by fibre glass boat to Kadavu Police Station.

15.	Enroute to Kadavu Police Station, the police saw and arrested the accused in another fibre glass boat. They also took him to Kadavu Police Station. The 24 marijuana plants were packed, tagged and kept in the exhibit room, to be transported later to Koronivia for analysis. On 7 January 2012, the accused was caution interviewed by D/A Corporal 3036 Amani Satuwere (PW5) at Kadavu Police Station. He was given his legal rights, formally caution and given the standard rest breaks. During the interview, the accused admitted cultivating cannabis sativa plants, with others, in Kadavu.

22.	‘The State’s case against the accused was based on the direct verbal evidence of four police officers and an ex-police officer, that is, D/Sergeant 1739 Adriu Naitukuni (PW1); Waisale Saru (ex-police officer and PW2); WPC 3623 Taraivini Vusoni (PW3); Sergant 1785 Sakaraia Tuberi (PW4); and D/A Corporal 3036 Amani Satuwere (PW5). The State’s case also relied on the direct evidence of the government analyst, Ms Miliakere Nawaikula (PW6).

23.	D/Sergeant Adriu (PW1) said, on 3 January 2012, he received information that people were cultivating marijuana in the Vuravu Settlement area. He organized a party of 5 police officers to execute a search warrant on one Apakuki’s house in the area. He took his party from the Kadavu Police Station to Apakuki’s house via a fibre glass boat. At the house, they executed the search warrant. PW1 said, they found 24 marijuana plants been hung up to dry at Apakuki’s house. PW1 said, according to the information he received, the 24 plants were said to belong to the accused. PW1 said, they seized the plants and took the same to Kadavu Police Station.

24.	Waisale Saru (PW2) next gave evidence. PW2 said, he was a police officer on 3 January 2012, and was part of the team that raided Vuravu Settlement that day. PW2 said, his team went to a farm at Vuravu Settlement. At the farm, they uprooted numerous marijuana plants. PW2 said, they received information that some marijuana plants had been uprooted and dried at a nearby house. PW2 said, they later went to the house and saw 24 marijuana plants been dried. PW2 said, they later seized the 24 plants and took them to Kadavu Police Station. It would appear that these were the same marijuana plants PW1 was talking about above.’

[13]	It is clear that both PW1 and PW2 speak to 24 marijuana plants being dried at another person’s house on 03 January 2012. It is the evidence of PW3 that she had received 24 marijuana plants and 6 branches of dried leaves from PW1 on 03 January 2012 (see paragraph 25 of the summing-up) which had been weighed by the Government Analyst (PW6) and found to be containing 11 kg (see paragraph 26 of the summing-up). Thus, the evidence does not reveal 32 plants of marijuana as alleged in the information.  
                                                                      
[14]	Secondly, there is no direct evidence of cultivation of 32 marijuana plants by the appellant elicited from the police officers. The appellant had been arrested when he was in a fiber glass boat and not on the farm. Therefore, to prove the charge the prosecution had to rely on the appellant’s cautioned interview. 

[15]	One of the allegations put to the appellant at the cautioned interview was that he had cultivated marijuana at Vuravu farm from 01 May 2011 to 04 January 2012 (between Q6 and Q7). Answering Q21 the appellant had admitted that he had cultivated marijuana at Vuravu Estate. He had owned it (Q31) and Apakuki was in charge of it (Q32). Marijuana plants at the farm where Apakuki was in charge had been uprooted by the police officers in January 2011. The appellant had admitted that marijuana plants uprooted from his farm and shown to him at the police station were cultivated by him (Q47). Obviously, these plants were not the ones uprooted on 03 January 2012.

[16]	Therefore, the admission of cultivation of marijuana plants from 01 May 2011 to 04 January 2012 is general in nature. No specific allegation set out in the charge had been put to and no answer had been obtained from the appellant in the cautioned interview as to whether on 03 January 2012 he had cultivated 32 plants of cannabis sativa weighing 11 kg. The rest of the admissions on cultivation in the cautioned interview appears to relate to the year 2011 which is outside the charge in the information. Other admissions only relate to the sale of marijuana for which there is no charge. 

[17]	Therefore, though I cannot say with certainty at this stage whether the appellant has a reasonable prospect of success on this ground of appeal, it is certainly worthwhile for the full court to consider seriously with the help of the complete appeal record to determine as to whether there is a clear nexus beyond reasonable doubt between the admissions of cultivation and the charge against the appellant in the information.   

03rd ground of appeal 	

[18]	The appellant’s complaint is that he had been charged with regard to cultivation of marijuana plants weighed 3.2 kg.  The state has submitted that the prosecution has not relied on the charge statement of the appellant at the trial. Nor do I have any material to substantiate the appellant’s position at this stage. The only thing that is clear is that even in the cautioned interview the appellant had not been confronted with an allegation of his having cultivated 32 plants of cannabis sativa weighing 11 kg on 03 January 2012 as alleged in the information. 

[19]	This ground of appeal has no reasonable prospect of success. 

04th ground of appeal 
	
[20]	The appellant’s complaint is that the police officers have not disclosed the weight of the  marijuana plants supposedly uprooted at a farm in Vuravu other than to say ‘numerous’ plants were uprooted. During the second raid at Apakuki’s house the police officers had found 24 marijuana plants being dried in the open weighing 11 kg. However, the charge in the information refers to 32 plants weighing 11 kg. PW3 and PW6 had confirmed that 11 kg was the weight of 24 marijuana plants and 6 branches of dried leaves. Thus, there is obviously a discrepancy between the particulars in the information and the evidence of prosecution witnesses. 

[21]	It is clear that the prosecution had led evidence only on 24 marijuana plants weighing 11 kg found in the open at Apakuki’s house and on what basis the information mentioned 32 plants is not clear. However, this discrepancy by itself would not vitiate the conviction if the appellant had confessed to having cultivated even 24 marijuana plants shown to him at the police station. He appears to have confessed only to having cultivated marijuana plants in January 2011 in his cautioned interview. However, the 24 plants of marijuana plants had not been uprooted on 03 January 2012 but prior to that in January 2011 (Q45 & Q47). 

[22]	This ground of appeal could be considered under the second ground of appeal provided the appellant decides to renew his appeal before the full court. 

	05th ground of appeal 

[23]	The appellant’s grievance here is regarding the admissibility of his cautioned interview and the directions to the assessors. The prosecution had summoned 06 witnesses at the voir dire inquiry and the appellant remained silent and not called any witnesses. The trial judge had stated in the voir dire ruling as follows. 

5.	I have carefully listened to and considered the evidence of all the 6 prosecution witnesses’ evidence. The police caution interview officer said the accused was given all his rights, his right to counsel and was formally cautioned during the interview. He was given the standard rest and washroom break. After the interview, he was formally charged. The charging officer said he was given all his rights.

6.	The arresting police officer, the caution interview officer and the charging police officer said they did not assault or threaten the accused to give his statements, and neither did they assault or threaten him while he was in their custody. They said, the accused co-operated with police and he made no complaints to them. I take judicial notice of the Magistrate Court record. When the accused first appeared in the Magistrate Court on 10 January 2012, he made no complaint to the Magistrate of any untoward police behaviour.

7.	The accused choose to remain silent in the voir dire hearing.

8.	After looking at all the evidence, I ruled the accused’s caution interview and charge statements as admissible evidence, but its weight and value, are matters for the assessors to decide in the trial proper. The above are my reasons for my ruling on 29 May 2017.’

[24]	The trial judge had addressed the assessors on the cautioned interview vis-à-vis the prosecution evidence and the defense case and directed them as follows.  

	‘29.	When considering the above confessional evidence, I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements as alleged by the police above. If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.’

[25]	Therefore, I see no reasonable prospect of success in this appeal ground. 

	06th ground of appeal 

[26]	The appellant’s complaints here have been dealt with under the second and fifth grounds of appeal and it overlaps with those two grounds of appeal.  
	
	Sentence

	07th ground of appeal 

[27]	The appellant argues that it was wrong for him to have been dealt with under category 4 of sentencing guidelines in Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) instead of category 3 as there was some uncertainty as to the actual weight of the plants found by the police. 

[28]	However, as pointed out above despite not having any evidence as to the number and weight of plants uprooted at the farm on 03 January 2012, the evidence led by the prosecution is clear that the weight of the plants found in the open at Apakuki’s  house was 11 kg and the number of plants was 24. It clearly falls into Sulua category four where the sentencing tariff had been set at 07-14 years of imprisonment for possession of cannabis sativa of 4000g or above.

[29]	There is no reasonable prospect of success in this ground of appeal. 

	08th ground of appeal 

[30]	The appellant alleges that the trial judge had mistaken or overlooked facts in sentencing him and he had been initially charged for possession. However, it is clear from the cautioned interview that the appellant had been interviewed for cultivation as well.  The judge had considered the prosecution evidence that the number of plants found in the open at Apakuki’s house was 11 kg and the number of plants was 24 and the appellant had confessed to having cultivated marijuana at his farm. Subject to what I have stated under the second ground of appeal the trial judge cannot be faulted for having taken the facts elicited in evidence for the purpose of sentencing.
  
[31]	There is no reasonable prospect of success in this ground of appeal.

	09th ground of appeal  

[32]	The appellant complains about the non-parole period of 10 years being too close to the head sentence of 12 years.  

[33]	In Korodrau v State [2019] FJCA 193; AAU090.2014 (3 October 2019) the Court of Appeal examined a similar argument extensively having considered all previous authorities on this matter and inter alia stated as follows.

	‘[89] The Learned Trial Judge while sentencing the Appellant to 17 years imprisonment had fixed the period during which he is not eligible to be released as 16 years in terms of section 18(1) of the Sentencing and Penalties Decree…..’

	‘[90] However, the complaint of the Appellant is that the non-parole period of 16 years has the effect of denying or discouraging the possibility of rehabilitation and is inconsistent with section 4(1) of the Sentencing and Penalties Decree and the decision in Tora v State AAU0063 of 2011:27 February 2015 [2015] FJCA 20.’

	‘[114] The Court of Appeal guidelines in Tora and Raogo affirmed in Bogidrau by the Supreme Court required the trial Judge to be mindful that (i) the non-parole term should not be so close to the head sentence as to deny or discourage the possibility of rehabilitation (ii) Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent (iii) the sentencing Court minded to fix a minimum term of imprisonment should not fix it at or less than two thirds of the primary sentence of the Court.’

[34]	The Supreme Court in Tora v State CAV11 of 2015: 22 October 2015 [2015] FJSC 23 had quoted from Raogo v The State CAV 003 of 2010: 19 August 2010 on the legislative intention behind a court having to fix a non-parole period as follows.

	"The mischief that the legislature perceived was that in serious cases and in cases involving serial and repeat offenders the use of the remission power resulted in these offenders leaving prison at too early a date to the detriment of the public who too soon would be the victims of new offences."

[35]	In Natini v State AAU102 of 2010: 3 December 2015 [2015] FJCA 154  the Court of Appeal said on the operation of the non-parole period as follows:

	“While leaving the discretion to decide on the non-parole period when sentencing to the sentencing Judge it would be necessary to state that the sentencing Judge would be in the best position in the particular case to decide on the non-parole period depending on the circumstances of the case.”
	‘.... was intended to be the minimum period which the offender would have to serve, so that the offender would not be released earlier than the court thought appropriate, whether on parole or by the operation of any practice relating to remission’.

[36]	Section 18(4) of the Sentencing and Penalties Act states that any non-parole period so fixed must be at least 06 months less than the term of the sentence. Thus, the non-parole period of 10 years fixed by the trial judge is in compliance with section 18(4). Therefore, in my view that the gap of 02 years between the final sentence and the non-parole period cannot be said to violate any statutory provisions and it is not obnoxious to the judicial pronouncements on the need to impose a non-parole period.

	10th ground of appeal

[37]	The appellant complains that he should have been afforded an opportunity to persuade the trial judge not to impose a non-parole period based on Timo v State CAV0022 of 2018:30 August 2019 [2019] FJSC 22. However, Timo had not been decided when the trial judge sentenced the appellant on 07 June 2017.

[38]	In any event the arguments based on the calculation of remission vis-à-vis the non-parole period and when to fix a non-parole period appropriately have been put to rest by the Corrections Service (Amendment) Act 2019. It states 

	‘2. Section 27 of the Corrections Service Act 2006 is amended after subsection (2) by inserting the following new subsections—
	“(3) Notwithstanding subsection (2), where the sentence of a prisoner includes a non-parole period fixed by a court in accordance with section 18 of the Sentencing and Penalties Act 2009, for the purposes of the initial classification, the date of release for the prisoner shall be determined on the basis of a remission of one-third of the sentence not taking into account the non-parole period.
	(4) For the avoidance of doubt, where the sentence of a prisoner includes a non-parole period fixed by a court in accordance with section 18 of the Sentencing and Penalties Act 2009, the prisoner must serve the full term of the non-parole period.

(5) Subsections (3) and (4) apply to any sentence delivered before or after the commencement of the Corrections Service (Amendment) Act 2019.”.
Consequential amendment
	3. The Sentencing and Penalties Act 2009 is amended by—
	(a) in section 18—
	(i) in subsection (1), deleting “Subject to subsection (2), when” and substituting “When”; and
	(ii) deleting subsection (2); and

(b) deleting section 20(3).

[39]	In terms of the new sentencing regime introduced by the Corrections Service (Amendment) Act 2019, when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole  and irrespective of the remissions that a prisoner earns by virtue of  the provisions in the Corrections Service Act 2006, such prisoner must serve the full term of the non-parole period. In addition, for the purposes of the initial classification, the date of release for the prisoner shall be determined on the basis of a remission of one-third of the sentence not taking into account the non-parole period. In other words, when there is a non-parole period in operation in a sentence, the earliest date of release of a pensioner would be the date of completion of the non-parole period despite the fact that he/she may be entitled to be released early upon remission of the sentence.  

[40]	The changes introduced by the Corrections Service (Amendment) Act 2019 to the non-parole regime are in accord with the decisions in Natini and Raogo. However, the amendment has negated the following aspects of Timo v State CAV0022 of 2018:30 August 2019 [2019] FJSC 22

	(i) fixing a non-parole period is quite a drastic power and to make it reasonable, it should be exercised by a Court after giving the convict an opportunity of having a say to enable him or her to persuade the Court to not fix any non-parole period or at worst a short non-parole period. (per Lokur,J)
	(ii) The power to fix a non-parole period should be exercised by the Courts in exceptional cases and circumstances and where it is absolutely necessary to do so and when that power is exercised it must be preceded by a hearing and supported by reasons. (per Lokur,J)

[41]	Corrections Service (Amendment) Act 2019 on the other hand has affirmed the following direction by the Supreme Court in Timo 
	‘The remission period must be calculated on the basis of the total sentence awarded to a convict (head sentence plus the set off period) and the convict given the benefit thereof subject to the non-parole period (if any) fixed by the Court and the practice followed by the Commissioner of calculating the remission period on the expiry of the non-parole period, being the head sentence minus the non-parole period ought to be discontinued forthwith. (per Lokur,J)

[42]	Gates, J remarked in Timo as follows

	‘(i) judicial officers need to justify the imposition of non-parole periods close to the head sentence, or (ii) indeed for the decision not to impose one at all and (iii) for section 18(1) speaks in terms of “must fix a period...” (per Gates,J)

[43]	Corrections Service (Amendment) Act 2019 has left part (i) of the above observation intact while it has clearly rendered part (ii) irrelevant. The last comment in (iii) on section 18(1) of the Sentencing and Penalties Act 2009 has been affirmed by the amendment.

[44]	Thus, this ground of appeal too has no reasonable prospect of success.
 
	11th ground of appeal 

[45]	The appellant’s argument here is that the trial judge had taken the quantity of 11 kg as an aggravating factor and enhanced the sentence by 03 more years when the tariff for 4 kg and above had already consumed the weight. 

[46]	The sentencing tariff of 07-14 years for any weight of 04 kg or more of cannabis sativa as stipulated in  Sulua v State [2012] FJCA 33; AAU0093.2008 (31 May 2012) does not necessarily mean that any weight of or above 4kg should only get a sentence of 07 years. Depending on the higher weight above 04kg the final sentence gets increased over 07 years. 

[47]	However, in this instance the trial judge had committed a different sentencing error. In paragraph 6 of the sentencing order the judge had identified one aggravating factor namely the quantity of 11kg of cannabis sativa plants ‘cultivated’ by the appellant.  
 
[48]	The trial judge had started with 12 years in sentencing the appellant and added further 03 years for the amount of 11 kg of cannabis sativa plants ‘cultivated’ making it 15 years and after giving discount of 03 years for mitigating factors and time in remand, the judge had ended up with a sentence of 12 years of imprisonment on the appellant. 

[49]	In Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court has raised a few concerns regarding selecting the ‘starting point’ in the two-tiered approach to sentencing in the face of criticisms of ‘double counting’ and question the appropriateness in identifying the exact amount by which the sentence is increased for each of the aggravating factors stating that it is too mechanistic an approach. Sentencing is an art, not a science, and doing it in that way the judge risks losing sight of the wood for the trees.

[50]	The Supreme Court once again said in Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) that whatever methodology judges choose to use, the ultimate sentence should be the same. If judges take as their starting point somewhere within the range, they will have factored into the exercise at least some of the aggravating features of the case. The ultimate sentence will then have reflected any other aggravating features of the case as well as the mitigating features. On the other hand, if judges take as their starting point the lower end of the range, they will not have factored into the exercise any of the aggravating factors, and they will then have to factor into the exercise all the aggravating features of the case as well as the mitigating features. Either way, you should end up with the same sentence. If you do not, you will know that something has gone wrong somewhere. 

[51]	This concern on double counting was echoed once again by the Supreme Court in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) and stated that the difficulty is that the appellate courts do not know whether all or any of the aggravating factors had already been taken into account when the trial judge selected as his starting point a term towards the middle of the tariff. If the judge did, he would have fallen into the trap of double-counting. 

[52]	Unfortunately the trial judge had fallen into the error of double counting in picking a high starting point of 12 years of the tariff of 07-14 years because of the quantity of 11kg of cannabis sativa plants and then taken the same large quantity of 11kg of cannabis sativa plants as the sole aggravating factor to increase the sentence by further 03 years. 

[53]	Thus, this sentencing error has a reasonable prospect of success in appeal. However, it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered (vide Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006). In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015). 

[54]	The appellant should be given leave to appeal against sentence on this sentencing error. The appropriate sentence is a matter for the full court to decide [Also see Salayavi v State AAU0038 of 2017 (03 August 2020) and Kuboutawa v State AAU0047.2017 (27 August 2020) for detailed discussions]. 

[55]	Leave to appeal against sentence could also be granted on a different footing namely the general state of confusion prevalent in the sentencing regime on cultivation of illicit drugs among trial judges which is yet unresolved by the Court of Appeal or the Supreme Court. 
[56]	Some High Court judges and Magistrates apply sentencing guidelines in Sulua v State (supra) in respect of cultivation as well while some other High Court judges have suggested different sentencing regimes on the premise that there is no guideline judgment especially for cultivation of marijuana meaning that Sulua guidelines may not apply to cultivation and the sentences not following Sulua guidelines have been based by and large on the number of plants and scale and purpose of cultivation. State has earlier cited before this court the scale of operation measured by the number of plants (incorporating potential yield) and the role of the accused as a measure of his responsibility as the basis for possible guidelines in ‘cultivation’ cases deviating from Sulua guidelines. 
 
[57]	These disparities and inconsistencies have been amply highlighted in four recent Rulings in the Court of Appeal and therefore, the same discussion need not be repeated here. 

Order 

1.	Leave to appeal against conviction is refused.

2.	Leave to appeal against sentence is allowed. 						

							
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL