Naio v Public Prosecutor [1998] VUCA 1; Criminal Appeal Case 07 of 1997 (8 January 1998)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appellate Jurisdiction

CRIM. APPEAL CASE No. 7 OF 1997

BETWEEN:

ANDREW TOM NAIO & NOEL NATHANIEL
Appellants

IGN="CENTER">AND:

THE PUBLIC PROSECUTOR
Resp>Respondent

Coram : Hon. Justice Bruce Robertson
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 p;&nbbsp;&nsp; p;&spp;&nbbsp;& p;&nbn. Chief JustiJustice Sir John Muria

Counsel: Mr Reynold Liu for the Appellants
p;&nbbsp; &bsp; nbsp; &nbss;&nbbsp; &nsp; Ms Kayline Tavoa fo Rtheondspondent

JUDGMENT

This is an appeal against sentence by the lantsew Too and Nand Noel Noel Nathanathaniel who were each convicted and sentenced to 5 years imprisonment for offences under the Dangerous Drugs Act [CAP 12].

The record shows that Andrew Tom Naio had been charged with the offence of cultivation of cannabis plants contrary to section 4 as read with section 17 of the Dangerous Drugs Act an Noel Nathaniel had been charged with unlawful possession of dangerous drugs contrary to section 2 as read with section 17 of the same Act. Both Appellants had pleaded guilty to the charges and were accordingly dealt with by the trial Judge on that basis.

In his reasons for sentencing the learned trial Judge expressed his concern that these two Appellants had committed serious offences. His Lordship also reiterated the serious view which the law takes of drug offences. His Lordship thereafter proceeded and sentenced the Appellants to five years imprisonment each. The position taken by the trial Judge is reflected in the following passage of his reasons for sentencing :

"Both Defendants have committed every serious offences. Initially the penalties were VT200,000 fine of 5 years imprisonment. But in 1989, Parliament increased these penalties to VT1,000,000 fine and 20 years imprisonment. Obviously these indicate the very serious consequences that must be faced by anyone found to act in breach of the law.

I find that both Andrew and Noel are guilty on the same degree of culpability and therefore I sentence them to equal terms of imprisonment of 5 years. Parliament has treated these offences seriously and this Court would not be upholding that law if I impose any sentence less than 5 years even taking into account of all that has been said in respect of each Defendant by their defending counsel."

As to the concern that drug offences are serious matters and the law must provide stern measures to discourage such offence, we entirely agree. We agree also that the Courts must reflect the seriousness which the law places on drug offences through the sentences they imposed on people who commit such offences.

Having said that, however, the Court must always bear in mind the particular circumstances of a given case before it, as each case must be considered in the light of its own facts. Sentences which Courts impose must be appropriate according to the circumstances of the particular case.

Briefly the version of the facts presented to the Court by the Prosecution was that in or about November 1994 Noel Nathaniel received six seeds from an expatriate man and kept them in his box for about 1 year 2 months. On 10 February 1996 he gave the seeds to Andrew Tom Naio. Andrew went to Epi taking the seeds with him and planted them. He was once told by an ex-police man that the plants were dangerous drugs. Andrew wanted to destroy the plants but had not done so. When they were arrested, both Appellants cooperated with the police. Noel admitted receiving the seeds from an expatriate and keeping them for 1 year 2 months while Andrew admitted receiving the seeds from Noel and planting them. In addition, both Appellants were of good character although Andrew had a previous conviction but that was for a different offence. We were not told what that previous conviction was for. In any case, it was for a different offence and we are prepared to treat him as a person of previous good character.

In his reasons for sentence the learned trial Judge referred to these matters including the Appellants personal circumstances. However, the learned trial Judge went on to say that the offences were serious and that Court would not be doing its duty if it imposed any sentence less that 5 years even taking into account what had been submitted on behalf of the appellants. He regarded both appellants with equal culpability and imposed a sentence of imprisonment of 5 years on each of them.

The power of an Appellate Court in an appeal such as this is well settled. The position had been clearly stated in Skinner -v- The King (1913) 16 CLR 336, at p.340 where the High Court of Australia said :

"... a Court of Criminal Appeal is not prone to interfere with the Judge’s exercise of his discretion in apportioning the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued or overestimated, or misunderstood, some salient features of the evidence, the Court of Criminal Appeal will review the sentence; but sort of such reasons, I think it will not."

We respectfully adopt those principles as we are clearly of the view that those principles are apt to the circumstances of Vanuatu and should be applied in this jurisdiction.

The learned trial Judge dealt with the Appellants in this case on equal footing resulting in both of them receiving the same sentence. With respect, we feel that his Lordship erred in so doing in that his Lordship had overlooked the fact that Noel who received the seeds and kept them for more than a year, did not know they were seeds of a drug plant. He thought at first that they were seeds of a good plant although later he became aware that they were seeds of marijuana. He then gave them to Andrew who planted the seeds which had grown into plants. The ex-police officer who saw the plants said they were dangerous drugs and should be destroyed. Andrew then knew the plants were dangerous drugs and yet did not take steps to destroy the plants. He kept them and continued to nurture them outside his house. In those circumstances it cannot be said that both Appellants were guilty on the same degree of culpability.

We note from the records that Mr Liu had ably argued, placing before the trial Court all the mitigating factors on behalf of the Appellants. The trial Judge thereafter proceeded to deal with the Appellants on the basis that they committed very serious offences; that they must face the serious consequences for breaching the law and that even taking into account what had been said on their behalf, a sentence of less than 5 years would not be sufficient. Having considered all that had been said on their behalf, we are of the view that the learned trial Judge had clearly undervalued important matters placed before him on behalf of the Appellants. These include the fact that the Appellants had readily admitted the offences to the police ; they cooperated well with the police ; there was no attempt to conceal the plants; they were of previous good character; and they both pleaded guilty in Court. All these factors in our view, given proper and adequate weight in the circumstances of the case, would undoubtedly give the Court basis for imposing a sentence much less than what it imposed on each of these two Appellants. Having considered anxiously what his Lordship the trial Judge said in his reasons for sentence, we are satisfied that his Lordship failed to adequately give the matters mentioned due weight. This Court is entitled therefore to interfere with the sentences imposed.

It will be noted also that Parliament had fixed the punishment for all drug offences ranging from a fine up to 100 million Vatu (and not 1 million Vatu as mentioned in the passage quoted from the learned trial Judge’s reasons for sentence) 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.

Counsel for the appellants referred the Court to a number of drug related offences. We note that the Courts in those cases imposed sentences ranging from a fine of VT20,000 to very short sentences of 9 months. We appreciate that a sentencing process is not a mathematical exercise but we do bear in mind the range of sentences imposed by the Courts in Vanuatu for drug offences.

Taking all these matters into account and having regard to the whole of the material before the Court, we are of the opinion that the sentences imposed on these two Appellants were manifestly excessive. The sentences which should be imposed are : for Andrew Tom Naio, 9 months imprisonment and for Noel Nathaniel 6 months imprisonment. The sentences are to be suspended for 2 years.

The Orders of the Court will therefore be that the appeal is allowed, the sentences of the Supreme Court are set aside, in lieu thereof the sentences of 9 months imprisonment in respect of Andrew Tom Naio and 6 months imprisonment in respect of Noel Nathaniel are imposed. Each of the sentences is suspended for 2 years.

DATED AT PORT-VILA, this 8th DAY of JANUARY 1998

BY THE COURT

J. Bruce ROBERTSON, J.A.
John W. von DOUSSA, J.A.
Sir John MURIA, J.A.