(5) &nnbsp;  sayspsays he thoew s e
se seeds down the toilet.
cl
(6p; He admits giving th
remaining seeds to the Police
class="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(7) &nbbsp; Hsp; He admits in h s
ec rec record of interview with the Police on 17th March 1998 that he planted 20
seeds.
(See Q30) And that none are growing (Q.31).
<
(8) He admits pla ting 1ing
seeds in the protected area (Q.39).
&nt">
(9) &nbssp; He admits bringing ging
the seeds into Vanuatu in his pocket (Q.43)
n lan-GB" ="fone: 12.0pt">
The Prosecution tendered the
Certificate of Analysis dated 27th May 1998 showing the result of forensic
examination of
the seeds as genus cannabis.
On the evidence presented and
on the Defendant's admiss am satisfied that the Defendant is guilty as
chargedarged and
convict him accordingly.
However before I pass sentence
I consider what the Defendant has said in mitigation. He plHe pleads for leniency
and gave the
following factual reasons -
(a) &nnbsp;;&nspp; Tsp; That heat he brought
seeds into Vanuatu on the assurance of Chief Kaleb Ser who advised him it
was alright to bring them in.
(b) ; Cspnabin or ronr rongoa agoa as
is described in Maori language is used as & &nsp; med and is not a
dru
drug.
lass=ormalle="text-indent: -34.9-34.9pt; mpt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(c) &&nsp;; Hspvolu taluntarilyarily gave
the seeds to the Police
(d) &nTsp; ole P dicenoid not
not
find any seeds in his possession during search.
(e) p; &nsp;&nNo seeds or plant as
indicated in witness statement as exhibits were brought and tendered to the
court.
p clasoNorstylet-indent: -34.9pt; margin-lefn-left: 70.9pt; margin-top: 1; margin-bott-bottom: 1om: 1">
">
class="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(f) He grew seeds for
t ene benefit of the whole community not for an individual.
span lang="EN-="EN-GB" sGB" style=tyle="font"font-size-size: 12.: 12.0pt">
(g) p;&nbbsp; bsp; He came to carry out
commucommunity development at the invitation of Chief Kaleb Ser and as a result
of an Arrangement made between Malvatumauri Council of Chiefs and the Maori
Chiefs iefs of New Zealand in or about 1996.
(h) & p;&nssp; Csp; Can is n is
categorised as a as a "Class C" drug which is not harmful. It is used as medicine
and it enhances the thinkroces is uor back pains and has no
voilent lent effeceffects.
(i) p;&nbbsp;&&bsp; bsp; Cannabis is a plant createreated by God to be used as medicine and that is what he brought the
seeds intuatu for. He referred to the Book of Genesis.
(j) &nbssp; He said said he is not
t
subject to the law because the law is for sinners. He abides by the Law of
God. He referred to 1 Timothy 4:5-10 in the Bible.
(k) & p; Hs tell tells the the Court
that he is e is suffering from an illness as a result of being kept away from
taking cannabis which he told the court he has been taking for the last 35
years of his life. He has never gone without
it for a period of 2 weeks.
(l) &nnsp;&&nsp;; HsptoHe told told the court
that he had no money.
(m) & Hsp;old the ctur court
rt
that he is divorced but has two children who are grown up and who no longer
depend
on him.
(n) &&nsp;; Hsptold thld the cohe court
that he loved Vanuatu and wished to remain in Vanuatu. He said that the last
thing he would want is to be deported back to New Zealand as he would suffer
humiliation of being a failure in his Vanuatu
mission.
p class="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(o) He asked for
sp sued nded sentence to enable him to carry out development projects in
Vanuatu.
1">
(p) &nbssp; He referred tred toed to the
case of Victor Wong who was found guilty of cultivating
cannabis plants and sentenced to 12 months imprisonment.
lass="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
(q) p; Hsp; He told the court
that that he did not know it was against the law to bring in seeds to Vanuatu and
to plant them.
Applying all these to the law
firstly his reason that he did not know it was at the law to bring in
cannabis seeds
cannot afford him an excuse. Section 11(1) of the Penal Code
Act [CAP.135] states that ignorance of the law shall be no defence to any
criminal charge.
Secondly it seems to me that
the Deft is saying that because he brought the seeds on the assurassurances
or Chief Kaleb
Ser there was no intent on his part. In Criminal Case No. 23
of 1997: Public Prosecutor v Andrew Tom Naio and Noel Nathaniel
I held that intent or knowledge is not a necessary requirement. I held that
under section 2 of Dangerous Drugs Act if an act is complete or done even
without intent, an offence is committed.
Section 2 of the Act reads:-
"The impoon, sale, supply
or possession in Vanuatu of the foll following substances and materials except as
provided
in section 3 is prohibited (13) cannabis."
I apply the same principle
here. Intent is not necessary for the offence to be cte. The facts are
cle clear. The Defendant
brought the seeds into Vanuatu and he planted them. He
gave some seeds to the police which he had in his possession. He admitted
to
all these in his statement and record of interview.
Section the Act reads:-
"The cultivation of any plant
of the genus cannabis shall be prohibited".
Again here no intent is
required. The offence is complete upon the act of cultiviation. The
Defendant admits planting
20 seeds in half coconut shells in which he said
only one germinated but then it withered away. The Certificate of Analysis
dated 27th May 1998 confirms that the seeds were genus cannabis that which
section 4 of the Act prohibits.
I sentenced the two defendants
in the above case to five(5) years imprisonment. That by comparison to the
case of Victor Wong who received only 12 months is a high
sentence. But each case has to be decided on their own merits, facts and
circumstances.
In Andrew and Noel's case the defendant Andrew
was warned by a expolice man about the plants. He did nothing about them.
The plants grew to full
size and although there was no evidence as to
whether or not it was used, there was a high possibility that it was used.
In Wong's case the Senior Magistrate sentenced the defendant
to a term of 12 months imprisonment. He pleaded guilty to one charge of
cultivation of cannabis plants.
In this case the Defendant
himself brought the seeds. Although he gave the remaining seeds to the
Police he planted some
and threw some away down the toilet. He did not
declare them to customs on arrival. When asked why not he answered (Q.42):
"I would be stupid to declare
them. I might as well leave them at home".
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
From this it can be inferred
that the Defendant knew it was against the law of bring in cannabis seeds.
If he intended
them for medicinal purposes why not delcare them? The
defendant is not a medical practitioner or a pharmacist. Medical
practitioners or pharmacists can apply for an import certificate from the
Minister to permit them to import substances for
medical or scientific
purposes. This is possible under section 7 of the Dangerous Drugs Act. The
Defendant is Manager of Marae Development in New Zealand. He is no medical
practitioner nor a pharmacist. What he
is doing in Vanuatu is not known
except that he says he is here for development projects. Clearly Chief Kaleb
Ser in
his statement denies knowing about the seeds and the Defendant's plan
to grow them at Kole. There is nothing from the Council
of Chiefs to support
this so-called development projects. All the Defendants has said cannot be
believed.
<
It is cthat the
Legislature of this nation has taken a very serious view of this offence so e so
much so that in 1989
Parliament amended section 15 of the Act as follows:-
class="MsoNoMsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
"15. & Evertraonntioe
of this Regulation shall constitute an offence punishable by a fine not
exceeding
100 million vr to m of sonmet exceeding 20
years or to both such fine and imprisonmisonment.&ent."quot;
For further comparison the
Clooks at other cases which have come before the courts as f as follows:
(1) &nnbsp;; In 198n 1989, Public
Prosecuosecutor -v- Tim Coopey the Court fined Coopey vt100,000 for
ivation of cannabis.
(2) &nbbsp;& In 1995, P>P>Public
Prosecutor -v- Albert Slee, a Ni-Vanuatu student was fined vt20,000
for posng a quanof cannabis.
(3) &nbbsp;& In 199n 1996, Public
Prosecutsecutor -v- Jean Luc Remon, a Frenchmen was fined vt120,000 for
ossession of cannabis.
(4) & p; In 1997, Public
Prosecutor -v- Andrew and Noel, these Ni-Vanuatu were each sentenced
to a of 5s impment.
(5) &nbssp;&nnbsp;agnd again inin in 1997,
Public ProseProsecutor -v- Victor Wong a Chinese/Australian was
sentence12 moimprisonment for cultivation of cannabis plants.
The trend from this list of
cases is that this offence is on ise. Unless the Courts appl apply and
uphold the law as Parliament
intended it to be, would-be possible offenders
would not be deterred by small fines and short-termed imprisonment as seen
in Coopey's, Slee's, Remon's and
Wong's Cases.
The problem with low sentencing
icularly in Wong's Case is that Defence CounsCounsel applied to
have the case dealt with summarily by a Senior Magistrate pursuant to the
powers
set out in section 4 of the Courts Act [Cap.122]. I have no
difficulty with the Magistrates hearing these cases summarily however
I am
of the opinion that sentencing should and must always be reserved for the
Supreme Court. The reason is as I have
said earlier in this judgement. The
Legislature has taken a very serious view about drugs and have passed
legislation
imposing a very heavy fine of vt100 million and/or imprisonment
for 20 years.
In my opinion Courts are not as
serious or seriously upholding the laws as Parliament intended it to be when
a sentence
of 12 months is imposed or when a fine of vt100,000, vt20,000 or
vt120,000 are imposed.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
In AndrewNoel's
case each of the defendants received 5 years imprisonment for one only only count
of cultivation of cannabis plants and
possession of cannabis seeds. Here,
the Defendant admitted to three counts of (a) importation of cannabis seeds,
(b)
possession of cannabis seeds; and (c) cultivation of those cannabis
seeds. His degree of culpability is much higher than those
of Andrew and
Noel. But taking account of all that he has said in mitigation, I see no
reason that he should receive
a lower sentence than Andrew and Noel.
For these reasons I now
sentence the Defendant, Tukoro Kau-Hou as follows:
Count 1- & p;&nssp;&nsp; &nsp; For
iatiot of cannabannabis seeds = 5 years imprisonment concurrent
1">
Count 2- &nbbsp;&&nsp;;&nsp; &nsp; For
posonssinnabis sbis seeds = 5 years imprisonment concurrent.
1">
Count 3- &nnbsp; F cultivatinvating cann cannabis seeds = 5 years imprisonment concurrent.
ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The Defendant's term of
imprisonment shall be 5 years served concurrently. The period he has alreadyready
spent in jail
shall be deducted from the 5 year term.
The Defendant has 14 days in
which to appeal if he wishes. However it is best if he starts serving his
term immediately
to gain deduction.
DATED at Luganville this 21st
day of August, 1998.
BY THE COURT
/b>
OLIVER A SAKSAK
Judge of the Supreme Court
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