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Public Prosecutor v Tangap [2011] VUSC 314; Criminal Case 09 of 2011 (16 December 2011)

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

Criminal Case No. 09 of 2011

PUBLIC PROSECUTOR

v

JOHNSON TANGAP

Coram: Justice D. V. Fatiaki

Counsel: Mr. T. Karae for the State
Mr. H. Vira for the Defendant

Date of Sentencing: 16th December 2011

SENTENCE

1. Johnson Tangap, you have been convicted for an offence of Cultivating Cannabis, contrary to section 4 of the Dangerous Drugs Act [CAP. 12]. This is an offence which is punishable by a fine not exceeding VT100 million or imprisonment for a term not exceeding 20 years.
   
2. The offence is alleged to have been committed in 2005 but only came to light in June 2010 when the Police received information that there were suspected cannabis plants growing in your garden. The plants were up-rooted and subsequent tests confirmed that they were cannabis. The up-rooted plants weighed 5kg.
   
3. When you were interviewed by the police you frankly admitted planting the cannabis in your garden amongst some kava plants, apparently, because you were told that it would help them grow well. You claim that it did help your kava plants to grow well. You say that you are not a user of cannabis and didn't even know what the plants were or that it was against the law to cultivate them. However ignorance of the law is not an excuse nor is it a requirement that you should know that the plants you cultivated is cannabis. The fact of its cultivation is enough.
   
4. I accept that you would have been 17 years of age when you planted the cannabis and although the quantity of cannabis was significant, there is no suggestion that you cultivated them for commercial purposes. There are no aggravating factors to your offending.
   
5. Since then, you have married, settled down, and now have 2 children of your own aged 4 years and 1 year. You are the sole-provider for your young family.
   
6. Johnson Tangap, you are a first offender and pleaded guilty at the first available opportunity. You have stayed out of trouble since the offence was committed 6 years ago and, you have also settled into a stable family relationship with its added responsibilities.
   
7. Although you have committed an offence, the mitigating circumstances in this case clearly militates against a sentence which will remove you from your family and the community. Nothing would be gained by your incarceration.
   
8. The public prosecutor although acknowledging that this case is not as serious as the recent case of PP v. Samuel Nasamal (2011) VUSC 104 where a non-suspended sentence of 2 years 6 months imprisonment for an offence of Cultivating Cannabis was imposed, nevertheless, submits that a suspended prison sentence is called for as a deterrent measure.
   
9. Johnson Tangap having carefully considered the circumstances of this case I agree with the recommendation of the prosecutor. I am satisfied that the cultivation in this instance was not for commercial purposes nor is there any risk of you re-offending in the same way. What is needed is a sentence which will keep you in the community and serve as a deterrent to you and anyone else who might be minded to cultivate cannabis.
   
10. Accordingly, I sentence you to 12 months imprisonment suspended for 2 years. This means that you will not go to prison today, but, if you commit another offence in the next 2 years you will have to serve this sentence of 12 months imprisonment, in addition to, any other sentence you may receive for your re-offending.
    
11. However, if you stay out of trouble for the next 2 years then you will not have to serve this sentence of 12 months imprisonment. Whether that happens or not is entirely in your hands but you should understand that, if you abuse this Court's leniency and ignore this opportunity given to you, then you cannot expect to be remain out of prison if you come before this Court again.
    
12. You have 14 days to appeal this sentence if you do not agree with it.
    

DATED at Isangel, Tanna, this 16th day of December, 2011.

BY THE COURT

D. V. FATIAKI
Judge.