Public Prosecutor v O'Connor [2008] VUSC 10; Criminal Case 51 of 2007 (15 May 2008)

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

Criminal Case No. 51 of 2007

PUBLIC PROSECUTOR

-V-

DEAN O’CONNOR

Coram: Justice C. N TUOHY

Date of Sentence: 15th May 2008

Counsel: Mr. Standish for Prosecution
Mr. Toa for Accused

SENTENCE

1. Dean O’Connor you appear for sentence, having been convicted after a trial on a count of possession of a prohibited substance namely cocaine. That offence was committed on the 29th July last year. There was a trial, I gave an oral judgment which has been typed and the facts were fully canvassed in that and I do not intend to canvass them again.
   
2. Suffice to say that you accepted an assignment to bring back something to Australia from an illegal drug dealer in consideration of the wiping of a debt, a debt you owed him for drugs and for some other money as well and he financed a cruise on a ship from Sydney to Vanuatu for you.
   
3. You picked up here some material which was impregnated with about 200 grams of pure cocaine, the value of which at street level would have been at least AUD$100,0000. You were stopped in the course of taking that onto the ship, obviously with a view to bringing it back to Australia and if you had been fortunate enough to get through Australian border control, which is doubtful, you would have delivered that to the person who employed you to come over here in the first place.
   
4. In my decision at your trial, I found that you were aware that there was a likelihood in the sense of a real or significant chance that the material items you picked up contained a prohibited substance, which of course they did. I should record what I have already pointed out, that the submission made on your behalf that I found that you should have been aware does not correctly represent what I found. I found that you were aware of that real likelihood. That is the standard for knowledge in the law in relation to this particular offending. However, I do take the point that that is a somewhat different concept from being aware as a matter of certainty that it contained cocaine.
   
5. I have heard very good submissions from the prosecution and defence in relation to sentence. I have also sentenced Mr. Koleff who was your co-offender although actually you are different, two links in a chain whose only connection with each other was the handover of the drug here in Port Vila, although I have no doubt that the principals behind this in Australia, one of whom may have been Mr. Koleff, had a connection with both of you.
   
6. One of the good things about the apprehension of you and Mr. Koleff, not only does it sent a message that Vanuatu is not an easy place through which to smuggle drugs, I am sure that whoever employed you to come up to Vanuatu, if they remain at large, would not be breathing easy, because they will be well aware that they also were being surveilled before even you reached Port Vila.
   
7. I do think that your offending is in a different category from Mr. Koleff’s. He brought this drug into Vanuatu and hid it here, or probably did. He certainly was here either with it or waiting for it for a period of weeks and he had been to Venezuela before he came here. He was much higher up the scale in this commercial serious drug importation because that is what it was.
   
8. I said in my judgment that I thought you are a naïve young man and not that smart. I did not mean to speak badly about you in saying that, it is just my assessment. It makes it that you are less blameworthy than Koleff because you are just, I think, a used courier and he was not. However, what Mr. Standish has said and what I said in my sentence of Koleff is correct: that the primary purpose of sentencing in a case of commercial handling of drugs like this is deterrence, to deter others who want to get involved in drug dealing and transporting drugs between countries. And the only real deterrence is the certainty of getting caught and the certainty of a serious sentence, when people are caught. And it has been said many times that the need for deterrence, the protection of everyone else, like the young people of Australia, Vanuatu or anywhere else who might have their lives ruined by drugs, must out-weigh personal factors.
   
9. However, there are several things that are in your favour and they need to be recognized. I have referred to the level of criminality which was obviously less than Koleff’s not only in the charge but in fact, in substance. As to duress I do not accept that you were under duress when you came here. I think that what you told the police was true, that you came here for a free cruise and to get your drug debt wiped and your other money wiped and I do not put any weight on the claim of duress. I do put weight on the fact that although you pleaded not guilty you did effectively confine the issue to the real issue which was the degree of your knowledge and you did assist in streamlining the trial. If you had not assisted it would have been a much longer and more expensive trial and you will get credit for that, but not the same credit as you would get for an early guilty plea which simply did not happen.
   
10. As to the sentencing authorities I am not going to refer to them again. I have referred to them in the sentence of Koleff. Suffice to say that it is those decisions which I have had regard to, the ones I mentioned there, and I will have regard to parity in sentencing with Mr. Koleff, who you will remember, well I am not sure you were here, but he had a starting point of 7 ½ years which was reduced, quite substantially for various factors, one of which, the guilty plea, does not truly apply to you and an end sentence of 4 ½ years.
    
11. Time spent in custody must be taken into account by law here, and that will be taken into account. As to time spent on bail, in Mr. Koleff’s case I made an allowance for that because of the particular situation here. It is not like he or you being on bail in Australia, able to live your normal life with your family. You have spent several months here, going on for a year in a situation where you might say you are under a form of town arrest in a foreign country and I think that it is fair to take that into account. Since in fact I sentenced Mr. Koleff, I have noted the case in the New Zealand Court of Appeal called R v. Tamou, where a sentence was reduced by the Court of Appeal due to a lack of recognition of the nine months that the offender had spent on electronically monitored bail before trial. So I think the principle is not only fair, it is recognized, at least there.
    
12. I mentioned in Mr. Koleff’s case that there are some special hardships of imprisonment in a foreign country for you. It has been said that people who get involved in drug offending overseas, and I mean overseas from Australia in your case, take a risk of imprisonment in the place where they are and that is true. I am not making any allowance for the conditions of prison here. You take that as you find it. What I do think is right to take into account is that you are serving imprisonment in a foreign country away from your family without support of friends and family apart from anyone who manages to get here for a visit. You will be in a culture and among people whose language is not exactly the same as yours and which is different from yours and I think that it is just recognition of a fact, that imprisonment will be harder for you. For that reason and like Mr. Koleff I intend to take that into account.
    
13. I have come to the conclusion that a proper starting point for your offending is 3 years. I intend to reduce that by 3 months for the admissions you made in Court streamlining the trial and I intend to reduce it by a further 9 months to take into account several factors I have mentioned: the length of time you have been on bail in Vila, the time that you have been in custody, which I am told is 81 days or 11 weeks and 4 days and also for the difficulty of imprisonment for you in this country. So the effective reduction in sentence from the starting point is one third despite the fact that this was conviction after trial.
    
14. You will know I am sure that if not deported you are entitled to apply for parole, once one half of that sentence had been served. So I am sure that it will not be easy for you but it is not and is not intended to be a sentence that crushes you but a sentence whereby you can see the end. You have 14 days to appeal against the sentence if you wish to.
    
15. Mr. O’Connor, if your want to appeal against the conviction too there is a 14 days time limit. Conviction was 6 days ago now.
    

Dated at Port Vila, this 15th day of May, 2008

BY THE COURT

C.N. TUOHY
Judge