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Public Prosecutor v Ben [2005] VUSC 64; Criminal Case No 018 of 2005 (9 May 2005)

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

CRIMINAL CASE No. 18 of 2005

PUBLIC PROSECUTOR

-v-

HANNINGTON BEN

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Lent Tevi for the Public Prosecutor
Mr Christopher Tavoa for the Defendant

SENTENCE

This is the sentence of the Defendant, Hannington Ben. The Defendant was charged and he pleaded guilty on 2 counts of Selling Cannabis, contrary to section 2(13) of the Dangerous Drugs Act [CAP 12].

The Defendant is from Emau Island and he lives in Erakor village, Efate. The Defendant is a bus driver. On 2 March 2005, a Mr Jean Luc boarded the Defendant’s bus as a passenger. Whilst inside the bus, the Defendant informed passenger Jean Luc that he sold cannabis. Jean Luc asked him for the price and the Defendant sold him a plastic bag of cannabis.

On 4 March 2005, the Defendant approached a person named Yoan Russel who lives in Erakor village and gave him a role of cannabis to use. The Defendant, then, told Yoan Russel that if he wanted more cannabis he must pay for it. The Defendant sold a plastic parcel of cannabis to Yoan Russel at the price of VT500.

On the same date (4 March 2005) the Defendant sold 2 plastic parcels of cannabis at VT500 each to a Mr Junior Joseph. Later on the same day, the Defendant sold another plastic of parcel of cannabis to a Mr David Zachary.

The Defendant was arrested on 12 March 2005 by the police. The police found 4 plastic parcels of cannabis plant in the Defendant’s possession.

On 4 March 2005, the Defendant was cautioned and interviewed. He admitted he sold cannabis. The 4 plastic parcels of cannabis were examined and tested positive by a police officer, John Richard, who undertook special training skills in that area.

Section 2(13) of the Dangerous Drugs Act [CAP 12] provides:-

“PROHIBITED SUBSTANCES AND MATERIALS

2. The importation, sale, supply or possession in Vanuatu of the following substances and materials except as provided in section 3 is prohibited-
   

(13) Cannabis.”

The penalty for such an offence is provided under section 1 of the Dangerous Drugs Joint Regulation (Amendment) Act No. 29 of 1998, in these terms:-

“AMENDMENT OF SECTION 15 OF JOINT REGULATION No.12 of 1939

1. The New Hebrides Dangerous Drugs Join Regulation No.12 of 1939, as amended, is further amended by deleting section 15 and substituting the following-
   

PENALTIES FOR CONTRAVENTION OF REGULATION

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

The prosecution refers the Court to the following cases:-

Reece Tukoro & ors v. PP, Criminal Appeal Case No. 2 of 1989 [about importation, possession and cultivation];

PP v. Leslie Galt & Ors, [1985] VUSC 3; [1980-1994] Van LR 158 [about possession and supply of cannabis].

The Defendant is 28 years of age. He is living in a de facto relationship with one year old child. He is a bus driver and earns his living by working as a bus driver. His de facto wife is unemployed. The Defendant has no drug dependency. The Defendant obtained the prohibited substance and materials from his friend and sold them for his friend.

The Defendant pleads guilty at the first opportunity available to him. He has no previous criminal convictions. He is remorseful. The Defendant refers the Court to the case of PP v. Moni Wayane, Criminal Case No. 43 of 2003; [2004] VUSC 3 [case about importation and possession of cannabis].

The defence submitted that the appropriate sentence should be a suspended custodial sentence.

I have considered the mitigating features. In sentencing the Defendant I take into account of the guilty plea of the Defendant and the fact that he is a first time offender. I take account of his previous good characters.

However in this case, the Defendant is facing two (2) counts of selling the cannabis, contrary to section 2(13) of the Dangerous Drugs Act [CAP 12]. Vanuatu case referred to me by both counsel are not relevant on the point. The best situation of the current Defendant is best described as being “at the lower end of small sellers of cannabis”. The Defendant’s situation is similar to a retailer of a small amount of cannabis to a consumer.

In the present case, there is prospect for commercial notice. However, I accept the Defendant’s submissions that he sold cannabis for his friend.

I sentence the Defendant for 2 years imprisonment on each count as charged and to be served concurrently.

The sentence of 2 years is to be served with immediate effect.

14 days to appeal.

DATED at Port-Vila this 9th day of May 2005

BY THE COURT

Vincent LUNABEK
Chief Justice