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Public Prosecutor v Ali [2007] VUSC 59; Criminal Case 53 & 83 to 102 of 2006 (15 June 2007)

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

CRIMINAL CASE No.53 OF 2006 &
CRIMINAL CASES Nos.83 to 102 OF 2006

PUBLIC PROSECUTOR

-v-

MARKWIN ALI
ELMO AMBOAS
JOHNERY SANDY
JSERETY BICE
JUSTIN ALICK
DAIS BICE
MARY BICE
WASAMI AILUL
EDWIN APAL
PASCAL AROPKALO
AIDING DAIS
AISING BICE
KEVIN AILUL
JERRY MASSING
JOHN DEO
MOЇSE TOHTES PAЇS
SAM WILLIE
JOHN JERRY
LIAMY SULIVIA BICE
TOVOR BICE
SELWIN BICE
AILUL APAL EDWARD

Coram: Chief Justice Vincent LUNABEK

Counsel: Messrs Bernard Standish & Eric Molbaleh for the Public Prosecutor
The Defendants on their own behalf

Date of submissions: 11-12 June 2007
Date of sentence: 15 June 2007

SENTENCES

These are the sentences of each and all the above-named Defendants. All the Defendants are from Melip village, South West Malekula, Vanuatu. All the Defendants except Markwin Ali and Kevin Ailul, were arrested at Melip village on 20 October 2006. They were brought to Port-Vila and remanded in custody until their sentence. The two (2) others (Markwin & Kevin) were arrested on the next day in Port-Vila. All male Defendants have spent a total of 240 days in custody. The three (3) ladies have spent 18 days in custody and were released on bail until their sentence.

All men and women are convicted of an offence under the provisions of the Dangerous Drugs Act [CAP.12].

Section 17 of the Dangerous Drugs Act [CAP.12] set the maximum penalty by a fine not exceeding 100 million Vatu or a term of imprisonment not exceeding 20 years or to both fine and imprisonment.

The prosecution submits that there is no provision in the Dangerous Drugs Act in relation to the quantity of the drugs whether 1 gramme or 1 kg Section 17 of the Dangerous Drugs Act does not seem to make a distinction.

There was no guide set out in the Dangerous Drugs Act to guide the Courts in the sentencing process. The Court must have to take into consideration the general circumstance of each individual Defendant.

The prosecution submits that as part of the package of sentencing options, the Court has to bear in mind of the general direction set by Section 37 of the Penal Code Act [CAP.135] (as amended) of keeping the Defendants to the community.

The sentencing reforms under the new amendments of the Penal Code Act provide for options of sentences available to the Courts, from imprisonment sentence, partially imprisonment sentence, and a combination of supervision order, suspension of imprisonment sentence.

The prosecution invites the Court to consider the sentencing options to the individual case of the Defendants.

1. PP v. Markwin Ali, Criminal Case No.53 of 2006

You are a young man of 19 years old. You are a first time offender. You have no previous convictions. You are motivated by your misconception of biblical knowledge. The facts show also that your initial motivation was for commercial purpose. You were convicted of possession of cannabis in excess of 1kg on different size of packages bearing Vatu libelling for selling (from 100VT to 6,000VT).

The pre-sentence report said, it was difficult for a sentence of community sentence to be suggested on your behalf.

You told the Court you would never give up as cannabis is the creature of God of nature. You want to go to jail.

I sentence you to 24 months imprisonment. A period of 240 days must be deducted from your total sentence of 24 months.

You are sentenced to 24 months minus 240 days with immediate effect.

You have 14 days to appeal this sentence.

2. PP v. Elmo Amboas, Criminal Case No.83 of 2006

You said you are motivated by money to pay school fees for your small sister. The pre-sentence report shows that you are decided to take new direction for your life. You express remorse of what you did. You are ready to make custom ceremony to the people in your community. You were convicted for planting 51 cannabis of different sizes small and big.

The prosecution submitted a suspended imprisonment sentence. You told the Court you want to take a new direction in your life and you want to help your community. The Court takes that into consideration. Planting cannabis are serious offence. I sentence you to 16 months imprisonment and suspend it for a period of 2 years. If you breach the term of your suspended sentence you shall serve the 16 months imprisonment in addition to any other sentence on the new offence.

You have 14 days to appeal this sentence.

3. PP v. Johnery Sandy, Criminal Case No.84 of 2006

You are 19 years old. You are a first time offender. You express your willingness to change. You would perform a custom ceremony. Your family rely on you. You express your remorse of what you did was wrong. You were convicted for planting cannabis weighing 0.22kg.

Your told the Court you will stop to plant cannabis and you will only plant what is allowed by the laws of Vanuatu such as cocoa and kava.

I take into your credit 240 days you spent in jail. I sentence you for 6 months supervision under Section 58F of the Penal Code Act of 2006 as amended.

You have 14 days to appeal this sentence.

4. PP v. Jserety Bice, Criminal Case No.85 of 2006

You were arrested and released on 6 November 2006. You were convicted of planting 31 plants of cannabis, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] weighing 1.90kgs. You are a first time offender. Your mother is a ill mother. She is paralysed on one side of her body. Your ill mother depends on you.

The pre-sentence report shows that you told the probation officers that you will continue to cultivate cannabis.

However, you told the Court that you were 18 years old. You are willing to change and you asked the Court to give you a chance to go back to the community but not to be sentenced to imprisonment.

I sentence you to 2 years imprisonment as producing more than 1kg of cannabis is a very serious offence and the degree of aggravation is toward the top of the scale. I suspend it for a period of 2 years to give you the chance to return to your community and respect the laws of Vanuatu by not planting cannabis plants anymore.

You have 14 days to appeal this sentence.

5. PP v. Justin Alick, Criminal Case No.86 of 2006

You are a young offender of 19 years old. You are motivated by money. You never make any money out of the cannabis you grew as they were destroyed by the police. You were convicted of planting cannabis weighing 0.14kg. You spent 240 days in custody. You indicate you want to make a positive change of your life. You told the Court you will not plant cannabis again.

You are sentenced to 9 months supervision.

You have 14 days to appeal this sentence.

6. PP v. Dais Bice, Criminal Case No.86 of 2006

You are a mature man of 65 years of age. You are married and you have 7 children. You do not believe you have done anything wrong. You are convicted for planting 612 plants of cannabis weighing 5.16kgs. This is one of the most serious categories of offences by one offender. You said you are not sorry for what you did. You say you will continue to cultivate cannabis the Dangerous Drugs Act [CAP.12] is not the law of Vanuatu.

You have the support of your wife and children. Your wife said she will try to change your behaviour.

Your mature status will influence others in the community. You will continue to threat the community unless you are willing to change.

The prosecution submits for a term of imprisonment and that the 240 days time served in custody be deducted in favour of the Defendant.

You told the Court that the Dangerous Drugs Act is not the law of Vanuatu. You have a misapprehension of what is the law of Vanuatu and how Parliament of Vanuatu enacted laws. You have also a misconception about the biblical principles. During submissions on sentence, you show the Court that you have in your possession cannabis substance and you consumed it in Court.

The following constitutes aggravation in your case: the size of the plants are mature plants. I consider also as a special aggravation, the fact that while you are given the opportunity to make submissions for your sentence, you defy the law and the Court by taking out cannabis substance in your pocket and consume cannabis in the Court. The appropriate sentence in such a situation is 5 years imprisonment. This term must be increased to 6 years to reflect the aggravation. I sentence you to a term of 6 years imprisonment. A period of 240 days already spent in custody must be deducted from the total of 6 years.

You are directed to serve 6 years imprisonment minus 240 days in prison.

You have 14 days to appeal this sentence.

7. PP v. Mary Bice, Criminal Case No.88 of 2006

You are 31 years of age. You spent 18 days in prison. You are a first time offender. You realised that what you did was wrong. You were convicted of unlawful possession of cannabis of less than 1 gramme.

You told the Court you wish to take positive steps in your life. I sentence you to 6 months supervision.

You have 14 days to appeal this sentence.

8. PP v. Wasami Ailul, Edwin Apal, Pascal Aropkalo, Markwin Ali, Criminal Case No.89 of 2006

• Wasami Ailul
You are 35 years of age. You were motivated by money. You are ready to make a custom ceremony. There is doubt as to whether you will change and no longer plant cannabis.

• Pascal Aropkalo
You are 20 years of age. You indicated you have no recognition of laws. You do not accept that you committed any crime. You say your belief in God allows you to continue to plant cannabis. You say you wish to go to prison.

• Edwin Apal
You are 20 years of age. You are a first time offender. You said you planted cannabis because you wanted to improve the standard of living on Malekula. Life is hard. Your wife involved in dangerous drugs awareness. You told the Court you will continue to plant cannabis on basis of your faith.

• Markwin Ali
Your personal character has been referred to earlier. You wish to go to prison.

Wasami, Pascal, Edwin, Markwin, you were convicted for planting 140 plants of cannabis in a joint garden. The plants weighed 65.82kgs. It is at the top of the offending categories of offences. It is a serious offence.

I sentence each of the Defendants: Wasami Ailul, Pascal Aropkalo, Edwin Apal and Markwin Ali to 2 years imprisonment.

Defendant Markwin Ali’s term of imprisonment shall be served concurrently with your sentence of 24 months imposed in Criminal Case No.53 of 2006.

You have 14 days to appeal this sentence.

9. PP v. Aiding Dais, Criminal Case No.90 of 2006

You are 20 years old. You were convicted of possession few cannabis (0.32kg). You have some difficulties in your mental health. You are easily led by others. You express a desire to use cannabis. It is hoped you would stop. The prosecution suggested a leniency for you.

You told the Court you do not want to go back to the village. Your situation is a special one. After convicting you for possession of cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12], I discharge you under s. 55(4) of the Penal Code (Amendment) Act of 2006.

You have 14 days to appeal this sentence.

10. PP v. Wasami Ailul, Criminal Case No.91 of 2006

This Defendant is the same Wasami we deal with his personal account earlier. You say you want to go to prison. You were convicted of unlawful possession of 28.24kgs of cannabis.

You are sentenced to 2 years imprisonment. You will serve this sentence of 2 years concurrently with your sentence of 2 years in Criminal Case No.89 of 2006.

You have 14 days to appeal this sentence.

11. PP v. Aising Bice, Criminal Case No.92 of 2006

You are 22 years old. You got a baby of 8 months. You were convicted of possession of cannabis of 0.02kg. It is a small amount of cannabis. You express your willingness to continue to smoke cannabis. You said you are addicted to cannabis.

I sentence you to 200 hours of community work under Section 58N of the Penal Code Act of 2006.

You have 14 days to appeal this sentence.

12. PP v. Kevin Ailul, Criminal Case No.93 of 2006

You are 19 years old. You were convicted of possession of cannabis (x2), contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] and cultivation of cannabis contrary to Section 4 of the Act [CAP.12].

You have expressed your willingness to change. The offence you committed are serious. I sentence you to 12 months on each of 3 counts concurrently and I suspend the sentence of 12 months for 2 years. In addition I direct you will be on supervision for 6 months for the period of suspension of 2 years.

You have 14 days to appeal.

13. PP v. Jerry Massing, Criminal Case No.94 of 2006

You are 35 years old. You are a first time offender. You got 2 children at school. You are convicted of planting cannabis, contrary to Section 4 of the Dangerous Drugs Act [CAP.12]. The plants weights 1.42kgs. You express your interest to change your life. You are fearful to go to prison. You said you would not plant cannabis again. You are ready to reintegrate the community.

You are sentenced to 200 hours of community work.

You have 14 days to appeal this sentence.

14. PP v. Moïse Tohtes Païs, Criminal Case No.96 of 2006

You are 50 years old. You are described as the ring leader of the group. You encourage others to plant cannabis on basis of a religious belief. Whatever role you played you were convicted for possession of 5 grammes of cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12].

You told the Court that you fight to get rid of the drugs legislation. You are entitled to your opinions and if you do not like a law, you will change that law only by the authorised legal means through Parliament representatives. However, you cannot allow yourself by breaching the law of Vanuatu deliberately just because you do not like the Dangerous Drugs Act [CAP.12].

I sentence you for possession of 5 grammes of cannabis to 100 hours of community work.

Your have 14 days to appeal this sentence.

15. PP v. John Deo, Criminal Case No.95 of 2006

You are 27 years old. You have daughters, a brother. Your parents depend on you. You were convicted for possession 18 dried plants of cannabis weighing 0.18kg. You were motivated to plant cannabis for money but you never benefited. You read bible and you were sorry for what you did.

I sentence you to 9 months supervision order.

You have 14 days to appeal this sentence.

16. PP v. Sam Willie, Criminal Case No.97 of 2006

You are 26 years old. First time offender, you are motivated by money. You intended to help your family. You were convicted for cultivation of 5 plants of cannabis, contrary to Section 4 of the Dangerous Drugs Act [CAP.12].

I sentence you to 6 months imprisonment and suspended it for 1 year.

You have 14 days to appeal this sentence.

17. PP v. John Jerry, Criminal Case No.98 of 2006

You are 19 years old. You are a first time offender. You have some problem before in the village by stealing crops. You are motivated by religious belief. You were convicted of planting 33 plants of cannabis weighing 14.98kgs. It is a serious amount of cannabis which reflected the aggravation of the offence.

You told the Court you will still continue to cultivate cannabis.

I sentence you to 16 months imprisonment minus 240 days already spent in jail waiting for you trial and sentence.

You are ordered to start serving your sentence of 16 months minus 240 days with immediate effect.

You have 14 days to appeal this sentence.

18. PP v. Liamy Sulivia Bice, Criminal Case No.99 of 2006

You are 39 years old. You spent 18 days in jail before trial. You have 5 children. You need money. You had a tumour in your body. You were convicted of planting cannabis, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] weighing 1.3kgs.

You realise what you did was wrong. You express you desire to change your life. You want to go back to Malekula. You said you would no longer plant cannabis.

I sentence you to 400 hours community work.

You have 14 days to appeal this sentence.

19. PP v. Tovor Bice, Criminal Case No.100 of 2006

You are 54 year old. You have previous record of rape in 1980. It is not relevant in this case. You are motivated by money. You were convicted of planting cannabis weighing 11.4kgs.

You express your remorse. You realised what you did was wrong. You want to be given a chance.

I sentence you to 12 months imprisonment suspended for a period of 2 years.

You have 14 days to appeal this sentence.

20. PP v. Selwin Bice, Criminal Case No.101 of 2006

You are 36 years old. You are a first time offender. You have 3 children and 2 are at school. Your children were affected. You said you want to change life. You realise what you did was wrong. You were convicted of planting 26 cannabis plants weighing 0.06kg.

I sentence you to 9 months supervision.

You have 14 days to appeal this sentence.

21. PP v. Ailul Apal Edward, Criminal Case No.102 of 2006

You are 24 years old. You were convicted of possession of cannabis, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] of 034kg. He has no literacy. You smoke cannabis. You were motivated by money. You are ready to change.

I sentence you to 600 hours community work.

You have 14 days to appeal this sentence.

DATED at Port-Vila this 15th day of June 2007

BY THE COURT

Vincent LUNABEK
Chief Justice