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Public Prosecutor v Malau [2009] VUSC 30; Criminal Case 77 of 2006 (7 May 2009)

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

Criminal Case No. 77 of 2006

PUBLIC PROSECUTOR

V

TOM MALAU

Coram: Justice N. R. DAWSON

Date of Hearing: 7th May, 2009

Date of Decision: 7th May, 2009

Counsel: Mr. A. Obed for Public Prosecutor
Mr. H. Vira for Accused

SENTENCE

1. Mr. Tom Malau appears today for sentencing on two charges of Possession of Cannabis and one charge for the Cultivation of Cannabis.
   
2. The facts of this matter are that the defendant had in his possession 22 cannabis seeds which he then cultivated. In September 2006 the Police saw the germinating cannabis plants planted by the defendant. The plants were removed and brought to Vila Police Station and they were confirmed as cannabis plants.
   
3. No probation report has been prepared for the defendant but counsel for the defendant has waived his right to a probation report and I note that in the submissions that have been filed with the Court by the Public Solicitor, he covers many aspects that would normally be expectively covered in a probation report in any event. On that basis the Court will proceed with sentencing today.
   
4. In sentencing you today it is necessary to hold you responsible for your actions. You chose to use the cannabis seeds in your possession by planting them in order to obtain more cannabis. Use of cannabis in this country is causing significant social problems and that is reflected by the maximum sentence of 20 years imprisonment for the charge of cultivation of cannabis.
   
5. The aggravating factor to this offending is that you had 22 cannabis plants growing. In mitigation you entered guilty pleas at an early stage and you have expressed your remorse and have backed that up by way of actions by not being involved in the use or planting of marijuana since the time of your arrest. You have no previous convictions on your record and other than these offences you have been a person of good character. I note that you are married with three children and your wife is presently pregnant with your fourth child. Your wife and your children are dependent upon you for the work you do around your home and also by your farming activity which produces an income to provide for their needs and for your children’s education. That will emphasize the foolishness of your behaviour by becoming involved in the cultivation of marijuana and putting the future of your family at risk by doing so. I do take particular note however that you have been a responsible person both to your family and within the community since the time of your arrest.
   
6. The cultivation of cannabis is the leading offence and an appropriate starting point would be a sentence of imprisonment of 9 months. I have to take into account the mitigating factors I have mentioned, and I am convicting and sentencing you to a term of imprisonment of 6 months with Cultivation of Cannabis. That sentence is suspended for one year. On both charges of Possession of Cannabis you are convicted and sentence to a term of imprisonment of three months each both to be served concurrently with the lead offence. Both of those sentences are also suspended for one year. What this means is that if you keep out of trouble for the next year then you will not need to go to prison. However, if you offend again then these sentences may be reactivated.
   
7. You have the right to appeal this sentence, for any appeal you must lodge a notice of appeal within 14 days of today’s date.
   

Dated at Morua, this 7th day of May, 2009

BY THE COURT

N. R. DAWSON
Judge