Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Public Prosecutor v Koleff [2008] VUSC 5; Criminal Case 51 of 2007 (29 February 2008)

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

Criminal Case No. 51 of 2007

PUBLIC PROSECUTOR

-V-

CHAVDAR KOLEFF

Coram:Justice C. N TUOHY

Date of Hearing: 29th February 2008
Date of Decision: 29th February 2008

Counsels: Mr. Standish for Prosecution
Mr. Nalyal for Koleff

SENTENCE

1. Chavdar Koleff you appear for sentence on 2 charges to which you pleaded guilty last month. They are that on the 29th July 2007 at Port Vila you possessed a prohibited substance namely cocaine and that on or about 29th July 2007 on Port Vila you supplied a prohibited substance namely cocaine to Dean O’Connor and Leigh Hannam.
   
2. The facts underlying the charges are that you arrived in Vanuatu on a Tourist Visa. As a result of confidential information received by the Transnational Crime Unit you were placed under surveillance when you arrived. You stayed at various motels in Port Vila from the period you arrived in early June 2007 until 17 July when you moved the Whispering Coral Motel. The Transnational Crime Unit also had information which caused them to expect the arrival of Dean O’Connor on a P & O cruise liner due to arrive on the 29th July.
   
3. When the cruise ship arrived, Mr. O’Connor and his traveling companions were placed under surveillance. Mr. O’Connor was observed to travel to the Sea Side area where he met with you at the Whispering Coral Motel. You there told him to buy some carry bags. He and his companions went back into Port Vila town and bought some carry bags and returned to the motel. He went inside your room while his companions remained outside. He was in your room for about 20 minutes. He came outside with the carry bags full of bed spreads and towel. He and his companions returned to the Port Vila wharf. They were searched there by Custom officers who were waiting for them. They found the bed spreads and towels were heavily doused in perfume. They conducted a presumptive drug testing on them and they tested positive for cocaine. The cocaine had been suspended in the fabric of the towels and bed spreads.
   
4. The Police searched your room in the Whispering Coral Motel that revealed the presence of the bed spread similar to that given to Mr. O’Connor. Both that bed spread and a red bucket found inside the room were tested for drugs and both returned positive tests for the presence of cocaine.
   
5. You declined to be interviewed by the Police. The material in your possession and in Mr. O’Connor’s possession was analyzed and the cocaine was extracted from it. It totaled to 289.7 grams. It is being accepted that the 289.7 grams mentioned in the certificate of analysis from the Australian analysis which you accepted meant that it was 289.7 grams of cocaine in total. In other words, that that weight was a pure weight.
   
6. There have been discussions before sentencing submissions were fully embarked upon as to the value, an issue on which I asked for further information at the time you pleaded guilty. It has been accepted on both sides that the street value of a gram of cocaine as sold on the street in Australia is in the order of 250 Australian dollars. On the basis that a gram of cocaine as sold on the street might be of something like 50% purity, that means that the street value of the cocaine which you had in supply is in the order of AUD $145,000. All of those figures are necessarily inexact. All they do is give the Court some idea of the scale or commercial value of the transaction that is taking place.
   
7. The maximum penalty for all offences under the Dangerous Drugs Act of Vanuatu is a fine of VT100m or 20 years imprisonment. The Act does not discriminate in relation to penalty in any way. It is the same maximum penalty, regardless of the type of offence, possession, sale, supply, export, import, regardless of the type of drug from marijuana at the bottom end to cocaine, heroine, methamphetamine and at the like at the top end and regardless of the weight or the value that is involved.
   
8. However obviously for the purposes of sentencing it is necessary to measure in some way the seriousness of the offending. The first issue of course is the type of drug which here is cocaine. In countries such as New Zealand and Australia where drugs are categorized for the purposes of penalty, cocaine is invariably in the most serious category up there with heroin because of course of its capacity to cause addiction and all the misery, crime, degradation and harm to individuals, families and society which result from a highly addictive drug like cocaine. Secondly of course the amount and value is relevant. I have already touched upon those.
   
9. The type of offending in this case was most definitely commercial. Not for one moment could it have been seriously suggested that you had this cocaine for your own use, for very obvious reasons: firstly the fact that you are giving it to someone else to transport to Australia suspended in a solution which was impregnated into material and also of course because of the value and amount involved.
   
10. You have through your counsel today in submissions for the first time giving some sort of explanation of your involvement and that you have said that you sent as a courier to Venezuela to pick up this cocaine and that you were just a courier and were going to be paid AUD$15,000 for that purpose and had never been paid.
    
11. It is undoubtedly true that you were involved in the transport of this cocaine from Venezuela to Vanuatu. However, I do not accept that it is true that you were just a courier. You were here for a considerable time, obviously you had to have money to do it. But significantly you were involved in changing the nature of the cocaine and I infer from the facts that I have already outlined that you dissolved this cocaine and impregnated in a solution so that it could be taken in material to Australia. And I think that you were involved more heavily than just a courier. I do not have any doubt that you have accomplices and other people involved in Australia but you also were involved more than as a courier. You were part of the operation and in my view quite a principal part.
    
12. This trip required international travel by you and a lengthy expenditure of time. You were in Vanuatu alone for almost two months before you are apprehended as far as one can tell doing nothing except waiting to send this cocaine into Australia. The purpose that you were involved was for making yourself a considerable amount of money, whichever way you look at it by trafficking in a drug which is the source of addiction and human misery and crime. Indeed you have said to the Court and I have no reason to disbelieve you that you yourself have been a victim of addiction to this drug. So while very good things can rightly be said about you, it should not be forgotten that you are here because you deliberately involved yourself in a scheme to transport for the purposes of sale considerable quantity of a drug which causes untold harm and you did that for the purposes for making money for yourself.
    
13. As far as personal factors are concerned, you are aged 34, you are a man of high intelligence, considerable talent and very good education. Sadly, that is not uncommonly seen with regard to defendants facing sentence for involvement in serious drug offences. You have got no previous convictions either in Australia or as far as known anywhere because who come before that from Norway.
    
14. Everything that is known to the Court is that you have previously been of good character. You have got elderly parents living in Sweden, a girl friend in Italy who has a young child and you have been providing some form of support, moral or financial, I am not too sure to her. I have read all the letters that set out your considerable good points about your character and your background from those people, from your friend and pastor as well, two pastors, one Norwegian and one from here. And I take all of that into account and give it as much credit as I can do.
    
15. It is really a tragedy that you are here but it is a tragedy caused by your own greed and I suspect also some arrogance which is sometimes seen in drug cases in drug users that leads them to underestimate the chances of being thought.
    
16. I am satisfied that you saw Vanuatu as a soft touch, a weak point in the armour of the international community preventing the spread of drugs internationally. In that obviously you are mistaken and I think that credit should be given to the Vanuatu Police Force and Custom Officers. This was a fine example of successfully bringing to justice some commercial drug trafficking through this country.
    
17. The apprehension and the prosecution and sentence of Mr. Koleff will send a message to those who might wish to bring illicit drugs here or use this country as a transit point. Rather than being a soft touch, it is a very small country where someone like Mr. Koleff will stand out and I hope that this case will leave drug dealers to conclude that this is not the place to bring illegal drugs.
    
18. The purposes of sentencing in a drug case like this is deterrence, to deter those who might want to get involved in drug dealing from doing so and the only real deterrence is the certainty of getting caught and the certainty of a substantial sentence. Deterrence in cases like this must outweigh personal factors because it is very important that this message gets through.
    
19. Both counsel have acknowledged there is really no relevant Vanuatu precedent in relation to cocaine sentencing. Mr. Nalyal has put before me a case which is reported in Paclii as PP v. Ali & Ors (2007) VUSC 59 CR 53 & 83 – 102 of 2006. I have looked at that case this afternoon during the sentencing submissions and I am satisfied that it is really of no help in this case. It is too unrelated, it involved large number of defendants all of whom were facing separate charges of varying severity relating to the growing and possession of cannabis on one of the outer islands or outer part perhaps of an inner island, a remote part of Malekula and it really does not provide very much help at all to sentencing in this case.
    
20. There have also been a number of Fijian cases cited by Mr. Nalyal they all related to cannabis and some of them, in fact all of them, are vastly different from the present case and their facts.
    
21. The prosecutor has provided a very extensive review of decisions from nations in the Pacific about cocaine, Tonga, Samoa, New Zealand and Australia. Many, many cases have been analyzed and discussed, I want to refer to couple of them specifically, Tongan case of Hokafonu. That was a case where the Court of Appeal imposed a maximum sentence available in Tongan law which was 10 years imprisonment at that time, on charges involving conspiring to import and export a huge quantity of cocaine, far, huge much greater quantity than here. In fact there were 95 kilograms and the Tongan Court of Appeal said that in passing sentence the Chief Justice observed that the penalty under the law of Tonga which provide a maximum penalty of 10 years imprisonment was totally inadequate for drug importations on this scale and he urged the Government to take immediate steps to increase the penalties and that the Court of Appeal endorsed those remarks. The Court of Appeal in Tonga also said that Tonga has until now being relatively free of the curse of the illegal drugs. If that is to be maintained the Courts must have the power to impose penalties sufficiently severe to the deter drug dealers using Tonga as a station post for importations into other countries and to deter them from importing illicit drugs into Tonga for sale here. The present maximum penalties are inadequate to achieve that. However they have imposed the maximum penalty and Tonga later increased the maximum penalty from 10 years to 25 years imprisonment.
    
22. In Samoa in the case of Faulkner a case of the Chief Justice of Samoa sentenced only in October last year 2007 is very relevant or useful. In that case there was possession of 555 grams of cocaine at 74 to 88% purity. So it had some relationship with the present case with terms of amount. In that case there was a maximum penalty in Samoa of 7 years imprisonment and the Chief Justice went to some lengths to say exactly the same thing that the maximum penalty there simply was not adequate. He impose a penalty of 6 years 4 months imprisonment on the basis really that there has to be some worse case imaginable for which the maximum penalty should be reserved. It was quite clear that had he had a greater maximum penalty available he would have imposed a much greater penalty.
    
23. In New Zealand the maximum penalty for offending of this sort is life imprisonment. The New Zealand cases were discussed in Faulkner. Just as an example, in the case of R v. Yee, a sentence of imprisonment of 8 years was upheld for possession of cocaine for the purposes of supply where the amount involved was 416 grams with 80% purity, similar to this and 7 years imprisonment in a case called Emirali where there was 548 grams for 78% purity. In the case of Ogaz from last year mentioned by Mr. Standish the Court of Appeal adopted a starting point of 15 years and imposed a sentence of imprisonment of 14 years with a non parole of 7 years for cocaine dealing or importation, exportation where 976 grams was involved.
    
24. The Court talked in that case about the fact that the defendant would have to serve his sentence in a foreign country, where the language was not his language and whether or not that should be taken into account. The Court said incarceration in a foreign country with all that entails, is a risk those involved in illicit international drug operations face and that it should not normally justify a greater than usual discount. However, they did not disagree with the Judge who allowed the discount for that reason in that case of a year from the 16 or so years that the initial Judge imposed.
    
25. I agree with respect that you will find imprisonment here difficult and more difficult than it would be for you in Australia or in Norway because of language, food, climate, general conditions and the total separation from family and friends. And yes, while you took that risk, in my view it is still a real factor that needs to be taken into account in the length of sentence and I intend to do so.
    
26. Finally the prosecution referred to the Australian case of R v. Spiteri which is a New South Wales Court of Criminal Appeal Case, in which a massive number of Australian cases were analyzed and listed relating to sentences imposed for cocaine. There is no way that I could mention all of them but I have read the case and the appendix to the case and I have kept those in mind to.
    
27. In applying or rather not so much applying but taking into account all of those cases it is necessary to keep in mind that they are all from different jurisdictions and that there is a maximum penalty which is different in all cases. In the Samoan and Tongan cases I have mentioned, low maximum penalties half or less than the maximum penalty available in Vanuatu and much less than the Judges in those cases thought was needed. In New Zealand life imprisonment is the maximum penalty. In Australia in the Spiteri case, the Court in New South Wales had available to it penalties depending on the amount of drug involved of life imprisonment or 25 years. In the Australian case mentioned in it, I do not know the maximum penalties in each case but they are likely to be in the order of life for 25 years, higher than what is available in Vanuatu. So I do keep in mind in relation of all those cases that the maximum penalty here is 20 years, not more, not less.
    
28. You have entered a guilty plea, it was late. The first available time was at the time when you are called on to plea in I think October 2007. Nevertheless although late, I think it was on the day after the trial was due to start, you ought to be given credit for it because it had saved time and expense to the State. As far as remorse is concerned you do profess remorse, I think you do have some remorse but that is naturally mixed with remorse for the position that you find yourself in today as opposed to the harm that cocaine dealing does to people, ordinary people, communities and families. But nevertheless I give you some credit for some remorse.
    
29. It is necessary to find an appropriate sentence. It will be obvious from the fact that there is a maximum 20 years imprisonment and from the cases that I have cited and facts of this case that a substantial term of imprisonment is required.
    
30. In my view a starting point is 7 years 6 months. I reduce that by 2 years for your plea of guilty and your remorse. Although late, you are entitled to it, not the one third you might have got on the first plea of guilty but something approaching it. I am also intending to give a further discount of a year made up in this way. The Court is required by law to give you credit for the time you spent in custody which is 6 ½ weeks and I am also going to give you in effect a credit of 6 months on the basis of the time you spent in custody together with the time you have spent on remand because in fact you have been under some form of restrictions while on remand here. You have had to live here in a country in a place where you do not have any friends or family or any form of income by work and no form of income by benefit as you would have in Australia if you were there, completely without income. In my view that should be taken into account as also should be taken into account, as I said, the fact that you will serve this term of imprisonment in a foreign country without support and in a totally foreign environment for you.
    
31. The end sentence is the sentence of 4 years and 6 months imprisonment. That takes into account all time served and all other matters including I might say also it takes into account, this further year discount, the relatively minor assistance you gave to the authorities. So the sentence that is imposed on you is 4 years 6 months starting now on each of the two counts to be served concurrently. I look at them as one type of offending really, namely possession and supply of a commercial quantity of cocaine for the purpose of exporting it from here to Australia. You have a right to appeal within 14 days if you wish to and I need to inform you of that right.
    
32. (Mr. Standish raises queries) I confirm that all matters are included in the one year’s credit, including time spent on remand and the parole calculation issue identified by the Court of Appeal.
    

Dated at Port Vila, this 29th day of February, 2008

BY THE COURT

C.N. TUOHY
Judge