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Public Prosecutor v Tuen [2005] VUSC 107; CRC 050 2005 (8 September 2005)

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

Criminal Case No. 50 of 2005

PUBLIC PROSECUTOR

–v-

ROBINSON TUEN

Coram: Justice Treston

Mr. Kalmet for Public Prosecutor
Mr. Bartels for Accused

Date of Plea: 06 September 2005
Date of Sentence: 08 September 2005

SENTENCE

Mr. Robinson Tuen, you appear for sentence today on a charge of cultivation of cannabis. As both counsel have referred to, the maximum potential sentence is a fine not exceeding VT100,000,000 or a term of imprisonment not exceeding 20 years or both. So the charge is very serious indeed.

It was in July of year, when a police patrol investigating stolen property in your area, located a nursery to the east of your house containing 250 seedlings. There were in fact 227 growing seedlings and 23 young seedlings which were dry. They ranged between 1 and 8cm in size. You freely acknowledged that you were the person who cultivated the seedlings. In an interview, before which you were cautioned, you admitted in writing the allegation made against you as to the cultivation of cannabis. You knew that what you were doing was against the law because while you were at school in Tongoa as long ago as 1985 and 1987, you had smoked it sometimes.

The prosecutor has referred to me a number of relevant case authorities for sentence on cultivation of cannabis where sentences ranged from suspended sentences to imprisonment for up to 12 months but significantly none of those cases involved the amount of cannabis which you were found cultivating. The prosecution submitted that a custodial sentence, not suspended, would be appropriate in your case to reflect the seriousness of the offence and to deter and punish you. The aggravating features the prosecution submitted were the number of seedlings and your previous knowledge of its illegality. Despite what the Court of Appeal said in decisions as to the availability of fines, the prosecution submitted that that would be inappropriate in your case.

On your behalf, the public solicitor has submitted that there are other drugs cases which also do not reflect the seriousness of this case. In mitigation, I am urged to take into account the fact that you are a first offender and that you pleaded guilty at the earliest opportunity. I am also asked to remember that you cooperated with the police and are now remorseful and contrite and that in the future, when you have served your punishment, you are resolved to assist the police in detecting other such matters. You said that you received the seeds from a Spanish sailor on a visiting yacht. This person, George, urged you to grow some cannabis and he would pay you for it but that person sailed into the sunset before that could be realized and you accept that it was your own decision to undertake the criminal cultivation. I am asked to remember that the Court must be flexible in sentencing and that previous sentences for cultivation appear to be in the range of 9 months suspended to 12 months imprisonment.

In sentencing you, of course, I must denounce your conduct and deter you from offending again in this way. I must also take into account that the general public need to be deterred from this sort of behaviour which is a scourge on the community for potential drug taking. So not only do I need to punish you but I need to protect the public and the community from drug taking. Having said that, clearly your offending, although serious enough of its kind, is not near the maximum potential sentence of 20 years imprisonment and I will impose the least restrictive outcome on you as I am able.

On the aggravating side of things there was a significant number of cannabis plants at 250. That is the greatest number of plants that I have come across within this Republic and clearly there were commercial overtones to your cultivation. You were candid enough to properly admit that in your explanation through your lawyer and, of course, while I recognize that there have been a number of cases over the years involving cultivation of cannabis, my experience is that such activity now at present appear to be on the increase and although it would be inappropriate to make you a scapegoat for the crime of others, I must sentence you appropriately to dissuade others from offending in this way.

By way of mitigation I take into account your relatively young age of 29 years and your personal family circumstances where you have a wife who has 4 children of her own that you support. Of course, it is inappropriate for me sentence your family indirectly but I must impose an appropriate sentence on you. Your wife's children, who are not your own children but for whom you accept responsibility, are aged between 7 and 20 years. I also take into account by way of mitigation and give you credit for your early plea of guilty, for your cooperation with the police, for your expression through your lawyer of remorse and contrition, for your resolve not to get involved in this sort of behaviour again and for the fact that you are previously of good character with no prior convictions.

Having balanced the aggravating and mitigating factors one against the other, it is my firm view that this matter must be regarded seriously for the matters which I have referred to, and the aggravating circumstances clearly in this case outweigh the mitigating ones and having taken into account all the things that I can in your favour, I consider that the appropriate sentence is one of 2 years imprisonment and you are sentenced accordingly.

You do not fulfil in my view the criteria for a suspension of that sentence. The crime and the circumstances are serious. It would be inappropriate in your circumstances of virtually being a subsistence farmer to fine you and bearing in mind the criteria of the Suspension of Sentences Act, I do not find you fit within that regime.

As I say you are sentenced to imprisonment for 2 years and although you have been in custody since your plea for two days I do not think that that is long enough to take into account. You have 14 days to appeal that decision if you are not satisfied with it.

Dated AT PORT VILA, this 08^th day of September 2005

BY THE COURT

P. I. TRESTON
Judge