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Public Prosecutor v Wayane [2004] VUSC 3; Criminal Case No 043 of 2003 (16 April 2004)

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

CRIMINAL CASE No. 43 of 2003

PUBLIC PROSECUTOR

-v-

MONI WAYANE

Counsels: Mr. Tevi Lent for the Public Prosecutor
Mr. Peter Bartels for the defendant

SENTENCE

This is the sentence of the defendant, Moni Wayane. The defendant is charged and pleaded guilty to the offence of being in possession in Vanuatu of prohibited substance and material, contrary to Section 2(13) of the Dangerous Drugs Act [CAP. 12], the (“the Act”).

The Dangerous Drugs Joint Regulation (Amendment) Act No. 29 of 1989 provides for the Penalties for contravention in this way:

“Penalties for Contravention of Regulation

15. Every contravention of this Regulation shall constitute an offence punishable by a fine not exceeding 100 millions Vatu or a term of imprisonment not exceeding 20 years or to both such fine and imprisonment.”
    

The defendant, Moni Wayane, is from Erakor Village. On 27 August 2003, the defendant arrived from Noumea, New Caledonia, on board the ship MV Havanna. Upon the arrival of the ship, Police and Customs Officers inspected the passengers of the ship. Custom Officer Sope and Police Officer Jean Paul Toure searched the defendant. They found on the defendant 2 different parcels containing Kannabis seeds and leaves. The first parcel was found at the defendant’s left trousers’ pocket. The second parcel containing also cannabis seeds and leaves were found in the defendant’s left marathon’s shoes. The defendant rubbed the cannabis seeds and leaves with the newspaper and placed it inside his left shoe. The cannabis seeds and leaves were found at the possession of the defendant. The defendant was arrested at about 10.50AM on 27 August 2003. The defendant admitted he has 2 different parcels of cannabis seeds and leaves. The defendant informed Custom Officers that he took the cannabis leaves and seeds on the Island of Mare, New Caledonia. The first parcel is weighed at 60 grams. The second was 100 grams. The defendant confirmed he was searched by police, Customs and Quarantine Officers upon his arrival on board MV Havanna from Noumea on 27 August 2003.

As to the defendant’s antecedents, the defendant was charged and convicted by the Magistrate’s Court for the offence of Idle and Disorderly, contrary to Section 148(f) of the Penal Code Act [CAP. 135].

The defendant was also charged and convicted by the Magistrate’s Court on the offence of Malicious Damage to Property, contrary to Section 133 of the Penal Code Act [CAP. 135].

The defendant was finally charged and convicted by the Supreme Court for the offence of rape, contrary to Section 91 of the Penal Code Act. He was sentenced to 3 years imprisonment on 20 October 2000.

The case of Reece and Stephen Tukoro v. PP, Criminal Case No. 2 of 1999 was referred to this Court by the Prosecution. The defendants were charged with 3 counts: Importation, being in possession of cannabis seeds and cultivation of cannabis plant, contrary to Sections 2(13); 2 and 4 of the Dangerous Drugs Act [CAP. 12]. The defendants pleaded guilty and were sentence to imprisonment of 12 months for the 3 counts.

It is said at the time, the defendants were charged on difference of quantity of seeds and the number of seeds found were 134. The prosecution said, in the present case, the defendant has in his possession 160 grams of seeds and leaves. The prosecution, thus, submitted that this will make a difference in the sentencing of the Court.

The defence says, the defendant is a young man of 24 years of age. He lives with his family and he is a fisherman by occupation. Eventually, he had bad experience with the Court system. He has been in Court and faced with convictions on 2 prior occasions. One instance on a small offence and the second occasion in October 2000 was a more serious offence. The defendant received 3 years imprisonment sentence. He was released from prison in March 2002.

The defence says, the defendant in admitting the offence must be viewed in a different light. There were no comparative basis between the offences he committed before and the offence he pleaded guilty to currently. The defendant must be treated as a first offender under the Dangerous Drugs Act [CAP. 12]. It is said the defendant is not a clever man. He is a fisherman. He came to Vanuatu with 2 parcels containing cannabis seeds and leaves.

The defendant pleaded guilty to the first opportunity provided to him and say sorry for what he did. It is said the defendant was beaten before he came to Court. It is said further that the defendant took cannabis seeds and leaves from New Caledonia to Vanuatu in order to show to the people of the village what they looked like but he did not possessed them for commercial purpose. It is said the defendant never consumed cannabis substance, nor kava. He has no drug dependency. He obtained the cannabis seeds and leaves from friends in New Caledonia freely without paying them.

I take into consideration what I heard from the defence. Cases from other jurisdictions are also referred to the Court as persuasive authorities to assist the Court. I take note of them and I am thankful to counsel for their assistance. I am not helped as to whether or not there are similarities between Vanuatu Dangerous Drug Act [CAP. 12] and the mechanism for punishment and other jurisdictions similar legislations and punishment.

Having said that, the defendant plainly knew about the nature of the seeds he had in his possession and had intentionally brought them into the country. 160 grams of cannabis seeds and leave involved in the present is an aggravating feature. There was an intention to bring the prohibited substance into the country to show to the people although not for commercial purpose.

Based on those factors, a custodial sentence is warranted in a case such as this. In the present case, the appropriate sentence would be 9 months imprisonment taking into account of the defendant’s guilty plea at the first opportunity provided to him.

The defendant, Moni Wayane is sentenced to 9 months imprisonment with immediate effect.

14 days to appeal.

Dated at Port-Vila this 16^th Day of April 2004

BY THE COURT

Vincent LUNABEK
Chief Justice