Public Prosecutor v Kastano [2012] VUSC 127; Criminal Case 11 of 2012 (13 June 2012)

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

Criminal Case No. 11 of 2012

PUBLIC PROSECUTOR

VS.

JACK KASTANO
THOMAS JOHN

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr P. Wirrick for Public Prosecutor and State
Miss J. Tari for the Defendants

SENTENCE

1. On 23rd May 2012 Jack Kastano pleaded guilty to one count of unlawful possession of cannabis contrary to section 2(62) of the Dangerous Drugs Act Cap 12. On the same date, Thomas John also pleaded guilty to one count of unlawful possession and sale of cannabis contrary also to section 2(62) of the Act.

2. The maximum penalty for this offence is a fine not exceeding VT100 Million or a term of imprisonment not exceeding 20 years or to both such fine and imprisonment.

3. On the night of 14th April 2012, Thomas John was caught selling 3 rolls of cannabis to Mark Roromel and 2 rolls to Bule Dominique on the instruction of Police. The Police had suspected these defendants were involved in sale of cannabis. After the transaction, the Police were alerted and made arrests on the same night. Upon search, the Police found a small quantity of cannabis leaves on the person of Jack Kastano. Thomas John had 8 rolls. He sold 5 of them and the Police recovered 3 rolls on his person on arrest.

4. Jack Kastano was convicted in this Court in Criminal Case No. 9 of 2011 on 11th April 2011 and sentenced to 6 months imprisonment suspended for a period of 12 months with supervision. In that case, he was named as Kastino Jack but he is the same person in this case. There is no issue with this aspect. The charge is same. However, the period of suspended sentence ended on 11th April 2012. Only 3 days later on 14th April 2012 Jack Kastano committed this additional offence under the same provision he was previously charged.

5. Both the Prosecutor and defence counsel cited the case of Public Prosecutor v. Sope [2004] VUCA 14 as the guideline judgment and the Court accepts that.

6. The Court endorses the views expressed by Fatiaki J in Public Prosecutor v. Joe [2011] VUSC 4, Criminal Case No. 121 of 2010 where the judge said –

"Drug offices are serious matters and the Courts have a duty within its limited capacity to take stern measures to discourage and eliminate the incidence of drug use in the community. Having said that, the Courts must always bear in mind the particular circumstances of a given case before it, as each case must be considered in light of its own facts."

7. In comparing this case with the Sope case, it seems to me Thomas John's offending is more serious in that he not only had unlawful possession but he actually sold 5 rolls of cannabis. There was a commercial transaction. As for Jack Kastano, the leaves he had were not quantified or weighed by Police. However, the Court considers Jack Kastano's offending as serious because of his previous conviction in 2011. It is apparent this defendant has not learned positively from that suspended sentence.

8. In sentencing Thomas John the Court accepts the Prosecution's and defence counsel's submissions that a suspended sentence should suffice for the following reasons –

(a) He is a 16 years old.

(b) He is a student at Rowhani School.

(c) He is a first-time offender with no previous criminal record.

(d) He cooperated with the Police during investigations.

(e) He pleaded guilty at an earliest opportunity.

The Court therefore convicts and sentences Thomas John to a term of imprisonment for 6 months but reducing it down to 4 months imprisonment and suspending same for a period of 12 months on the condition he does not commit this offence or any other criminal offence for which he is convicted within a period of 12 months from today. There will be no supervision but his teacher or Headmistress is encouraged to accord him the opportunity at will.

9. As for Jack Kastano, you are sentenced to 8 months imprisonment but for your early guilty plea, 1 month is deducted. You will serve the balance of 7 months with immediate effect, from today 13th June 2012 at the Correctional Centre. A Warrant of Imprisonment to that effect will be issued.

10. These sentences serve the purposes of deterrence to these two defendants and to others who have the tendencies of getting involved in importation, sale, supply or possession of cannabis in Vanuatu, and also as adequate punishment.

DATED at Luganville this 13th day of June 2012.

BY THE COURT

OLIVER A. SAKSAK
Judge