Public Prosecutor v Thomas [2019] VUSC 7; Criminal Case 3384 of 2018 (8 February 2019)

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

Criminal
Case No. 18/3384 SC/CRML

PUBLIC PROSECUTOR
v.
PETER THOMAS

Coram: Justice D. V. Fatiaki

Counsel: Ms. B. Pakoasongi for the State
Ms L. Bakokoto for the Defendant

Date of Sentence: 8 February 2019

SENTENCE

1. At his arraignment on 11 December 2018, the defendant pleaded guilty to Possession of Cannabis (Count 1) and Cultivation of Cannabis (Count 2). Prosecuting counsel accepted however that Count 2 which was based on the same number of cannabis plants, should be treated as an alternative to Count 1.
   
2. After his pleas the defendant admitted brief facts outlined by the prosecutor which told of how the Police Drugs Unit acting on information, raided the defendant’s compound at Epal Half Road, Erakor area and recovered/uprooted 38 marijuana plants which the defendant admitted he was cultivating for his own personal use (“Mi planem blong mi wan nomo”). Subsequent tests confirmed the plants to be cannabis with a combined undried weight of 4753gm. The defendant was convicted on his guilty pleas.
   
3. A pre-sentence report and sentencing submissions were ordered to be filed and were subsequently received by the Court.
   
4. The defendant is 40 years of age, and comes from Emau Island. He is married and resides with his wife and four children at Erakor Village. Although educated to class 6 level, the defendant has skills as a mechanic and builder. He is the sole bread winner of his family and earns a steady income working for a construction company. He is considered a helpful member of the community. He is a member of the AOG church but not a regular church goer.
   
5. The defendant is a first offender and expressed remorse for his actions and promised not to re-offend. He has offered to perform a custom reconciliation ceremony to his family and the wider community for bringing disrepute to them. Many interviewees confirmed to the probation officer that the defendant has learnt “a good lesson” and some offered their assistance to rehabilitate the defendant.
   
6. Prosecuting counsel referred to Wetul v Public Prosecutor [2013] VUCA 26 where the Court of Appeal laid down in the following relevant sentencing guideline for cannabis offences:
   

“Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial measure ...”.

Counsel submits that the defendant should be ordered to undergo 150 hours community work, counselling to stop his substance abuse, and supervision for 10 to 12 months.

7. Defence counsel for her part highlights the defendant’s cooperation in taking and showing the police the plants and in pleading guilty at the earliest opportunity and counsel submits that 12 months supervision and community work is proper.
   
8. Plainly both counsels are in agreement with the Wetul guideline that a non-custodial sentence is called for and subject to a proper recognition of the quantity of cannabis involved, I agree. Accordingly, in recognition of the fact that the defendant is a first offender who pleaded guilty at the earliest opportunity and voluntarily assisted with police investigations, I impose a sentence of 9 months imprisonment suspended for 12 months.
   
9. The defendant is also ordered to serve a 6 months sentence of Supervision in which he is to undertake and complete a drug counselling and rehabilitation program as directed by a probation officer.
   
10. The defendant is finally ordered to perform 100 hours of Community Work under the supervision of a probation officer.
    
11. The 38 cannabis plants recovered from the defendant’s plantation are ordered to be destroyed within 14 days if not already done.
    
12. The defendant is also reminded of his unsolicited offer and urged to perform a custom reconciliation ceremony to his family and the chiefs of Erakor as appeasement for bringing disrepute to the community. Such ceremony to be advised to and witnessed by a probation officer.
    
13. The defendant is advised of his right to appeal this sentence within 14 days if he does not agree with it.
    

DATED at Port Vila, this 8^th day of February, 2019.

BY THE COURT

D. V. FATIAKI
Judge.