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Public Prosecutor v Sope [2004] VUSC 62; Criminal Case 014 of 2004 (9 July 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 14 of 2004.

PUBLIC PROSECUTOR

-v-

TUK SOPE
KALTO RIMAN

Ms. Hellen Wodak for the Public Prosecutor
Mr. Jacob Kausiama for the defendants

SENTENCE

1. This is the sentence of the defendant Tuk Sope. The defendant is charged with and pleaded guilty to, the offence of being in possession of cannabis contrary to Section 2(13) of the Dangerous Drugs Act [CAP. 12].

2. The second defendant Mr. Kalto Riman was charged with aiding and abetting possession of cannabis contrary to Section 2(13) of the Drugs Act [CAP. 12] and section 30 of the Penal Code Act [CAP. 135]. The second defendant pleaded not guilty to the charge. On 8th July 2004 the Public Prosecutor entered a nolle prosequi by informing the Court that he did not wish to continue the proceedings against the second defendant and there on the second defendant was discharged in respect of the charge.

3. The defendant is from Pango Village, Efate and is 26 years old.

4. On 24th March 2004 around 12.30 p.m. he was standing near the Drugstore with Kalto Riman and drinking Tusker beer. He spoke to tourists as they went past him and police observed that the defendants eyes were very red and his general behaviour was typical of someone who is quite drunk with alcoholic liquor. The defendant tried to sell cannabis to tourists. The Police officer observing all these returned to the Police station and reported the defendant and Mr. Riman to the Police officers on duty. Shortly after, they were arrested and brought to the Police station. When they were approached the defendant tried to conceal the cannabis in the left pocket of his trousers. The Police searched the defendant at the scene and found a plastic of cannabis in the pocket of his trousers. At the Police station the Police searched the defendant again and found another plastic hidden under his genitals.

5. Out of the two plastic of cannabis found by the police, one was broken and one was not broken. The police also found some cannabis seeds, dried leaves and flowers from the pocket of Sope’s trousers. After the defendant was searched, he was detained for further investigation.

6. On the 21st of March 2004 the Police interviewed and obtained a caution statement of the defendant on the allegation that the police had found cannabis leaves and seeds in his possession. The defendant admitted the offence to the police. Out of recording he told the interviewing officer that he liked to smoke cannabis because it is good to work with and that he makes money from cannabis and it helped him to pay electricity bills, food etc. While being interviewed, the defendant, asked the interviewing officer to give him the cannabis which has been confiscated by the police so that he can smoke it. The interviewing officer refused to give him the cannabis as it is illegal to do so.

7. The two plastic of cannabis were received by the interviewing officer on Saturday the 20th of March 2004 and he tested the content of the cannabis by using a “field test” and it gave a positive sign. The interviewing officer also tested the cannabis with “Nacotest” which is a simplified testing procedure for cannabis. The result was that it gave a greyblue or purplish blue colour which means that it is positive sign for cannabis.

8. On the 26th of March 2004 the cannabis were weighed at the Quarantine Office. The first sample (dried leaves in plastic) weighed 9.55 grams. The second sample in powdered form in opened plastic weighed 0.80 grams.

Sentencing submissions

Miss. Wodak on behalf of the Public Prosecutor referred the Court to the cases of PP –v- Naio & Other (Criminal Appeal Case No. 7 of 1997) and PP –v- Tukoro [1999] VUCA 9 (Criminal Appeal Case No. 2 of 1999). She submitted that in these cases the Court of Appeal has emphasized that the legislature has given judges a wide discretion when sentencing under the Dangerous Drugs Act, so as to be able to respond appropriately to the severity of the offence committed in each individual case.

In the case of Public Prosecutor –v- Naio & Others the Court of Appeal allowed an appeal against 5 year sentences for the first defendant’s conviction for cultivation of cannabis and the second defendant’s conviction for unlawful possession of cannabis. The second defendant had received 6 seeds and kept them in his possession for 14 months, after which he gave them to the first defendant who planted them. The Court instead imposed sentences of 9 months for the first defendant and 6 months for the second defendant, suspended for 2 years.

The Court held that the sentencing judge had given insufficient attention to the mitigating factors for the defendants being:-

a) ready admissions of the offences to the police;
b) cooperation with the police;
c) no attempt to conceal the plants;
d) previous good character; and
e) pleas of guilty.

With respect to the trial judge’s concern with the seriousness of drug offences, and his perception that the legislature intended sentences to be long, the Court said:-

“It will be noted also that the Parliament has fixed the punishment for all drug offenders ranging from a fine up to 100 million vatu ... or a term of imprisonment up to 20 years. The Legislature clearly intends to give the court a wide range of rooms within which to move in order to impose appropriate penalties for drug offences based on the circumstances of the particular cases before the Courts. There are offences much more serious than those which the appellants were convicted of. For such offences the Courts will no doubt consider meeting them with severe sentences.” (p4)

In Public Prosecutor –v- Tukoro [1999] VUCA 9 (Criminal Appeal Case No. 2 of 1999) the Court of Appeal described 5 year concurrent sentences for the defendant’s importation of cannabis seeds, possession of cannabis seeds and cultivation of cannabis plants, as manifestly excessive and imposed a 12 months sentence.

The Court described the aggravating features in that case as making a suspended sentence of imprisonment inappropriate, as follows:-

a) the defendant’s knowledge of the nature of cannabis in his possession;
b) that the defendant intentionally brought cannabis into Vanuatu;
c) the number of seeds involved (20);
d) an apparent willingness to distribute the seeds, although no commercial element involved.

His “significant” mitigating factors were:-

a) voluntary surrender of the remaining seeds to the police before any enquiries had begun;
b) subsequent co-operation and ready admission of the offences to the police and magistrate; and
c) guilty plea.

The trial judge had drawn attention to seriousness with which drug offences are viewed by the Parliament as exemplified by the substantial increase in penalties in 1989. The Court of Appeal, commented upon this increase as follows:-

“... it is not insignificant that Parliament in increasing the quantum of penalties has not seen fit to alter the form or nature of the penalties that may be imposed thereby recognizing that drug offences (like other sorts of offending) may be equally and justly dealt with by the imposition of a fine alone. Needless to say if the Legislature had intended a mandatory custodial sentence for all drug offences it could quite easily have made its intentions clear by simply removing any-non-custodial alternative. The fact that it did not speaks volumes of Parliament’s true intentions and it behoves the Courts to bear that in mind when sentencing a drug offender ...” (p2)

Public Prosecutor –v- Wayane [2004] VUSC 3 (Criminal Case No. 43 of 2003) the defendant arrived from Noumea and on his body was found 2 different parcels containing seeds and leaves, weighing 160 grams. The defendant had taken the cannabis seeds and leaves from New Caledonia.

Chief Justice Lunabek imposed a 9 months sentence because of the following aggravating factors:-

a) the defendant knew about the nature of cannabis;
b) the defendant intentionally imported cannabis; and
c) the amount of cannabis involved.

In doing so, the Chief Justice considered the following mitigating factors:-

a) the defendant admitted that he had the cannabis;
b) he did not possess the cannabis for a commercial purpose;
c) he does not consume cannabis;
d) he did not pay for the cannabis; and
e) his plea of guilty.

Aggravating factors

In the present case Prosecution submits that the Court should consider the following aggravating factors when considering sentencing:-

a) the defendant attempted to hide the cannabis on his person;
b) the defendant admitted he smokes cannabis;
c) the defendant’s understanding of the nature of cannabis; and
d) the defendant attempted to sell the cannabis to tourists, and admitted he had sold cannabis in the past.

Mitigating factors

The Prosecution submits that the Court should consider the following mitigating factors when considering sentencing:-

a) the defendant co-operated with the police and admitted the offence, although this was only after he had been searched and cannabis found on his person;
b) the small amount of cannabis involved, both parcels together weighed 10.35 grams; and
c) the guilty plea.

Criminal Record

On 22nd March 2000, the defendant was convicted of drunkenness and fined VT1,500. On 31st August 2000, the defendant was convicted of theft and fined VT5,000.

Sentencing Range

Although a small amount of cannabis was involved, because the defendant has admitted he possessed the prohibited substance for a commercial purpose, the Prosecution submits that a custodial sentence is appropriate. The Prosecution submits that a sentencing range of 3 to 9 months is appropriate, with a reduction for the plea of guilty.

Defendant’s case

Counsel on behalf of the defendant does not dispute that it is a serious offence but ask the Court to take into account mitigating factors including the following:-

• the defendant is 26 years old and is living in a de facto relationship.
• Has a child of 3 years.
• Has been attending courses at the USP in Vila since the first Semester this year.
• Has an ongoing project which produces necklaces and bracelets and sells them mainly to tourists.
• He is sorry and is remorseful for what he has done.
• Has pleaded guilty at the earliest opportunity.
• He cooperated with the police.

On the issue of sentencing counsel further submitted that there are distinguished features between the case of Public Prosecutor –v- Reece S. Tukoro and the present case. In the present case the defendant was only in possession of the cannabis and that is what he had been charged with, nothing more. In the circumstances the defendant pleads leniency. Counsel on behalf of the defendant submits that if a custodial sentence is imposed then it should be a suspended sentence.

Findings

I take into account the mitigating factors put forward by counsel on behalf of the defendant. I am thankful for both counsels for the cases referred to me on the point of sentencing.

The defendant admitted that 2 plastic bags of marijuana was given to him by “wan white man long Sunset bar” on Friday night.

He was arrested on 20th March and made his statement on 21st March 2004. The way in which Friday night was referred to in the defendants statement in my view can only refer to Friday night the 19th of March 2004. That means that he had been in possession of the prohibited drug for about a day, when he was arrested.

The person who gave him the marijuana informed him accordingly and the defendant knew what it was when he received it. The offence the defendant was charged with was “possession of cannabis contrary to section 2(13) of Dangerous Drugs Act [CAP. 12]. He was not charged with nor admitted “sale or supply” of cannabis.” The statement admitting to sale of cannabis was made “out of recording”, that is its not part of the cautioned statement, and in my view cannot be admitted as it is unfair on the defendant. The defendant was given the cannabis on Friday night the 19th of March 2004. He was arrested about midday on 20th March 2004 very drunk near the Drugstore. I do not see how he could have had the opportunity to sell the cannabis in the past “because it is good to work with and that he makes money from cannabis and it helped him to pay electricity bills, food etc.” In the circumstances I am not satisfied that I should take into account any information relating to sale of the cannabis by the defendant.

In summary the case against the defendant is that he was in possession of cannabis, nothing more.

I have taken into account the mitigating factors and in the circumstances, the proper penalty in my view would be a custodial sentence but suspended. A sentence of 3 months would be an appropriate period in the circumstances of this case. Mr. Sope you are sentenced to 3 months imprisonment but suspended for 12 months. Within the period of suspension you must not commit any offence under any Act or subsidiary laws, if you do you will be arrested and serve your time. You have 14 days to appeal this sentence.

DATED at Port Vila, this 9th day of July 2004.

H. BULU
Judge.