Public Prosecutor v Ishmael [2005] VUSC 103; CRC 034 2005 (30 August 2005)

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

Criminal Case No. 34 of 2005

PUBLIC PROSECUTOR

–v-

FRANK ISHMAEL
AUGUST ISHMAEL
SELINA LEISARA

Coram: Justice Treston

Mr. Kalmet for Public Prosecutor
Mr. Bartels for Accused

SENTENCE

Mr. Frank Ishmael, Mr. August Ishmael and Ms. Selina Leisara, each of you is today for sentence. Mr. Frank Ishmael and Mr. August Ishmael each of you faces two charges, one of possession of cannabis and one of supply of cannabis. Ms. Leisara you face one charge of possession of cannabis. The possession with which each of the three of you is charged, relates to the same cannabis. The events leading up to this prosecution mainly occurred in March 2005. Mr. Frank Ishmael your supply of cannabis occurred in 2004.

The facts were that early in the morning of 25 March 2005, a police drug operation squad carried out a raid at your home in Tanaliu village near Port Havana Harbour. When the search was taking place, you, Selina Leisara, threw a small carton filled with cannabis leaves and seedlings out of the window. The carton and its contents are shown in the photographs produced to the Court, and the Court is asked to infer how much cannabis there might have been contained in the carton found at the house. That is a very difficult task for the Court to undertake just from the photographs. Normally, in matters of drug cases, the prosecutor is able to tell the Court what weight of cannabis was located in possession of an offender and to give the Court the most accurate indication of how much cannabis was involved and in future I am sure the prosecution will be able to present that evidence as to the weight of material seized so that the Court can make a reasoned decision as to the seriousness of the offence. In this present case it is not possible for the Court to properly decide how much cannabis was involved in the possession charge. As defence counsel pointed out there is also a difference between dry weight and wet weight of cannabis.

The charge of supply of cannabis laid against you, August Ishmael, related to supplying some cannabis leaves directly from a plastic bag in exchange for some fish which, it seems, involved 3 small fish. The charge against you, Frank Ishmael, for supplying cannabis in 004, related to you giving the person named in the charge a cannabis roll in exchange for 3 shells of kava. Really, as the prosecution accepts, those supplies of cannabis were at the lower end of the scale. The analogy was made by defence counsel in relation to a cannabis roll perhaps being equivalent to a joint of cannabis. From the jurisdiction that I am familiar with that would only be in the vicinity of one or two grams.

The difficulty that all of you face of course today is that the maximum potential penalty is twenty years imprisonment. In that potential sentence of 20 years in this jurisdiction, there must of course, be room for sentencing on possession, supply and cultivation and the alternative to twenty years imprisonment can be a fine not exceeding VT100, 000, 000 which is a significant amount indeed. A whole range of activities and the appropriate penalties for them must be seen under one umbrella of the maximum sentence.

When I sentence each of you, I must take into account the potential of harm to the community by growing and distributing of illicit drugs. I must look into your individual responsibilities to your immediate family and to the wider community in which you live. I must denounce your conduct, and, as the prosecutor has said, deter you from future offending. I must protect the community from the scourge of drugs. I must acknowledge that your offending is somewhat towards the lower end of the scale.

On the aggravating side of things, and it is important to balance aggravating and mitigating factors, I must look at the aspect of premeditation and clearly with some of the cannabis in your possession, there were elements of that. On the mitigating side, of course, I must look at your pleas of guilty and give you credit for those. I must also note that each of you is a first offender and of previous good character and I must differentiate between the male and female members of your family because the father of the clan and the son of the clan face 2 charges whilst the mother, the matriarch as the defence put it, faces but 1.

The prosecutor in his submission, has drawn attention to various aggravating features in your cases including for Mr. Frank Ishmael the fact that there were 2 offences and that he knew what the substance was when he supplied it to another. There was a significant quantity of cannabis in your possession and you are the leader of your family and should set a better example. The prosecution submitted that in your case, a suspended sentence is not warranted. As to you, Mr. August Ishmael, the prosecution submitted that there should be a custodial sentence which may be suspended and as to you Selina Leisara, the prosecution submitted that there perhaps should be a sentence of imprisonment which may be also suspended. The prosecution also stressed that it was you who endeavoured to get rid of the evidence.

I am grateful to counsel for the copies of decision that have been provided to me in relation to sentencing of drug offenders in this jurisdiction.

I am also conscious that your lawyer has made submissions on behalf of each of you, essentially that there should be a suspended sentence.

Mr. Frank Ishmael, you are 56 years of age and live with your family at Port Havanah and have 8 children between the ages of 28 and 12 years. Your oldest sons have their wives and children living with you on that land and of course one of your sons includes your co-offender, Mr. August Ishmael. You and your family are subsistence farmers who live on a block of land in Port Havanah and you originally came from Tongoa. Because of your background and origin, there has been rancour and angst, as your lawyer puts it, from the local community towards you and your family. You and your family have been somewhat ostracised by the local community to the extend that your lawyer even says that you are treated at times as a pariah. It is submitted that your supply of cannabis did not have the hallmarks of a commercial enterprise but was more in the nature of barter. It is submitted that your offence in relation to the supply was at the lowest possible end of the scale and that you can call into favour on your part, your previous good character with no convictions, your plea of guilty, the non-commercial nature of the supply, the urgent need of your presence as the patriarch of the family and your relatively elderly age of 56 although I am not constrained to agree that 56 is necessarily elderly.

On your behalf Mr. August Ishmael, you are 28 years of age and have a wife and 5 children, you have another child on the way and it is submitted that again your supply was not in a commercial context. Again you are a first offender and have pleaded guilty and your family need you.

Mrs. Selina Leisara, you are the matriarch of the family and are again a first offender and have pleaded guilty. Your family also needs you.

I am not particularly persuaded by either or by any of your circumstances that the need of the family for you is of paramount importance but I must say that in view of the comments that I have already made, your offending both in relation to possession and supply is at the lower end of the scale and were not overtly commercial. Realistically all of your circumstances as subsistence farmers preclude the availability of a fine for this offending. The very fact of your small trading of a prohibited plant in exchange for small items underlines that.

However, as I have said, the law regards any form of involvement with cannabis as a serious offence. As I have also said although it is difficult to quantify the amount of cannabis in your possession, I am satisfied that in each of your cases, a sentence of 6 months imprisonment is appropriate for that count, that is count 1. Each of you is sentence to 6 months imprisonment on count 1.

In relation to counts 2 and 3, the supply was minimal and each of you, Mr. Frank Ishmael and Mr. August Ishmael are sentenced to 3 months imprisonment on your respective count, that means a total of 9 months imprisonment for you Mr. Frank Ishmael and you Mr. August Ishmael and six months imprisonment for you Mrs. Selina Leisara.

I turn my attention then to the Suspension of Sentences Act [CAP.67], that provides, in summary, that the execution of any sentence for an offence against any Act may be suspended where the Court in view of the circumstances and in particular the nature of the crime' and the character of the offender, considers that it is not appropriate to make him or her suffer a penalty. The Court may order that the sentence be suspended for any period not exceeding 3 years. In my view, it is appropriate for each of you to have the benefit of that Suspension of Sentences Act, so the sentence of 9 months imprisonment in relation to you Frank Ishmael, and you August Ishmael, is suspended for a period of 2 years. Mrs. Selina Leisara, your 6 months sentence of imprisonment is suspended likewise for 2 years.

In my view that sentence recognizes the submission made by the prosecution that there should be deterrence for drug offending. That is so because the effect of a suspended sentence is this. If any of you come back to Court within the next 2 years, facing a drug charge or any other charge under the Penal law, you will be called upon to immediately serve the suspended sentences I have today imposed and you will be sentenced for any fresh matter in addition to those sentences of 9 months and 6 months that I have today imposed. Do you all understand that? (Accused all agreed.)

Effectively then your future for the next 2 years if you want to stay out of jail it is very much in your own hands. If you come back to Court, you will go to jail if you are convicted of any other matter. Let me also underline for each of you that the Court does not tolerate people who have anything to do with prohibited materials such as cannabis. In suspending the sentences, I have not made light of the seriousness of drug offending. It is just that in your particular cases, as I have said, it is appropriate to suspend the sentences. In imposing those sentences I have made allowances for the mitigating factors such as your pleas of guilty. There was no time spent in custody that I need to take into account and each of you has 14 days to appeal that sentence if you are unhappy with it.

Dated AT PORT VILA, this 30^th day of August 2005

BY THE COURT

P. I. TRESTON
Judge