Public Prosecutor v Sope [2004] VUCA 14; Criminal Appeal Case 03 of 2004 (1 November 2004)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Criminal Appeal Jurisdiction)

CRIMINAL APPEAL CASE No. 03 of 2004

BETWEEN:

THE PUBLIC PROSECUTOR
Appellant

AND:

TUK SOPE
Respondent

Coram: Hon. Vincent Lunabek, CJ
Hon. Bruce Robertson J
Hon. John von Doussa J
Hon. Daniel Fatiaki, J
Hon. Patrick Treston, J
Hon. Oliver Saksak, J

Counsel: Mr. Nicholas Mirou, Public Prosecutor for the Appellant
Mr. Jacob Kausiama for the Respondent

Date of hearing: 25th October 2004
Date of decision: 1st November 2004

JUDGMENT

This was an appeal against a sentence of 3 months imprisonment suspended for 12 months imposed on the respondent in the Supreme Court at Port-Vila on 9 July 2004. Mr. Sope entered a plea of guilty to a charge of being in possession of cannabis contrary to Section 2(13) of the Dangerous Drugs Act [CAP. 12]. There was a co-defendant charged with aiding and abetting but that prosecution was not proceeded with and the other man was discharged.

Mr. Sope is 26, living in Pango Village, Efate. He has a 3 year old child.

On 20 March 2004 around the middle of the day, the respondent was seen standing near a drug store with another drinking Tusker beer. He was seen to be speaking to tourists passing in his vicinity. As a result of his actions he was taken to the police station. On searching him the police found a plastic which contained 9.55 grams of cannabis leaf in his trousers pocket and another plastic was concealed on his body with 0.80 grams of cannabis in powder form. At the time of his apprehension he was seriously affected by alcohol.

The following day he was interviewed under caution and admitted the possession of cannabis leaf and seeds.

As an appeal by the Prosecutor, the rules are clear. They were recently considered at length by this Court in Public Prosecutor v. Atis Willie, [2004] VUCA 4; Civil Appeal Case No. 2 of 2004. The sentence must be shown to be clearly wrong and outside any reasonable sentencing discretion before an appellate court will intervene.

It became clear in reading the comprehensive submissions which had been prepared and in the oral argument that the crux of the case was that the Prosecution alleged that this case was more than simple possession, but it was in fact possession for the purposes of supply.

Under the relevant Section of the Dangerous Drugs Act that additional allegation could have been included in the charge. Why he had possession would then have been a matter of relevance and importance in the case, but that is not the way the wrong doer was charged.

Particular reference was made by the Public Prosecutor to the fact that in ‘off the record’ comments by the Appellant it was contended that he had made several damaging admissions. The Judge in sentencing said: "The offence the defendant was charged with was "possession of cannabis contrary to section 2(13) of the Dangerous Drugs Act [CAP. 12]. He was not charged with nor admitting ‘sale or supply’ of cannabis". The statement admitting to sale of cannabis was made "out of recording", that is not part of the cautioned statement, and in my view cannot be admitted as it is unfair on the defendant."

This part of the sentencing exercise is what leads to the appeal. We fully endorse the approach of the Supreme Court Judge. It will only be in the most exceptional circumstances that a court will consider admitting evidence of an out of court admission statement which is not made as part of a properly cautioned interview statement.

Not only is doing otherwise unfair to an accused person (as the sentencing Judge noted), but it also has the potential to create situations in which allegations can be made that the police are not truthfully reporting what was said. It is in everybody’s interests and will maintain the integrity of the justice system if accused persons are interviewed and statements recorded in a proper and professional manner and that only evidence so obtained is received by the court.

We do not overlook in the particular circumstances of this case that there might have been evidence which could have been given by the police officers who observed the activities of Mr. Sope in the vicinity of the Drugstore which might have provided an evidential basis for allegations of attempting to supply. However it was of no relevance because of the way that this man was charged.

We do not accept the proposition that evidence which would support a more serious charge can be ignored or excluded from the actual charge and only to be later resurrected as a means of enhancing what is otherwise an appropriate sentence for the particular charge.

Accordingly, we are of the view that a sentence of three months imprisonment could not possibly be considered to have been manifestly inadequate. It may in fact have been open to challenge on the basis that simple possession of about 10 grams of cannabis might well have been dealt with by the monetary penalty which is also contemplated as a sentence for an infringement of this particular section. But as there is no cross appeal that is not an issue which we can take any further.

It is then argued on appeal that the sentence should not have been suspended and that no reasons for the suspension were articulated. In our judgment it is inaccurate to suggest that there were no reasons for suspension. They may not appear in the exact paragraph where suspension was allowed but the mitigating factors were clearly enumerated under 7 bullets points in a paragraph called the defendant’s case.

In our judgment there was ample justification for the Judge in the total circumstances of this case for doing so. Having decided that there should be a term of imprisonment to mark the seriousness of the offending under the Act, it was open to him to be satisfied that suspension was a reasonable and appropriate response. The argument to the contrary again goes back to the issue of possession for sale or supply which in fact does not arise.

As the Court said to Mr. Sope at the appeal hearing he may have been very fortunate that he was not charged with some of the more serious aspects of his activities. But on the basis of the charge laid, the sentence imposed was completely within the available discretion. There is no basis on which this Court could contemplate intervening.

The appeal against the adequacy of the sentence is dismissed and the sentence of the Supreme Court is confirmed.

DATED at PORT-VILA this 1^st day of November 2004

BY THE COURT

Vincent LUNABEK, CJ
Bruce ROBERTSON J
John von DOUSSA J
Daniel FATIAKI, J
Patrick TRESTON, J
Oliver SAKSAK, J