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Public Prosecutor v Ben [2005] VUSC 65; Criminal Case No 016 of 2005 (11 May 2005)

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

CRIMINAL CASE No. 16 of 2005

PUBLIC PROSECUTOR

-v-

SAM BEN
TOM SANKUMA

Mr Lent Tevi for the Public Prosecutor
Mr Jacob Kausiama for the Defendants

SENTENCE

The Defendants: Sam Ben and Tom Sankuma are individually sentenced by the Court today 11 May 2005 for the following offences:

• Sam Ben was charged and pleaded guilty to two(2) counts of Cultivation of Cannabis Plants, contrary to section 4 of the Dangerous Drugs Act [CAP 12]; and
  
• Tom Sankuma was charged and pleaded guilty to one(1) count of Cultivation of Cannabis Plant, contrary to section 4 of the Dangerous Drugs Act [CAP 12].
  

Section 4 of the Dangerous Drugs Act [CAP 12]

“Prohibition of Cultivation of Cannabis Plant

4. The cultivation of any plant of the genus Cannabis shall be prohibited.”

The Dangerous Drugs Joint Regulation (Amendment) Act No. 29 of 1989 provides for the penalty in this way:

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

1. The New Hebrides Dangerous Drugs Joint 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 or to a term of imprisonment not exceeding 20 years or to both such fine and imprisonment.”
    

The brief facts show as follows:

Both Defendants are from Pele Village on the Island of Tongoa, Vanuatu. They obtained Cannabis seeds in Vila at a marriage wedding sometime in 2003.

Sometime in December 2003, Defendant Sam Ben planted 1 Cannabis seed in his Naurango garden. It germinated and grew. The Defendant used the leaves for smoking and replanted the seeds. In August 2004, he planted 3 seeds. They germinated and grew. 2 seeds died and one remains alive when the police arrested him.

In or about August 2004, the Defendant Tom Sankuma planted 6 seeds of Cannabis out of which 4 only grew into trees. The Defendant Tom Sankuma planted those seeds in his Porika garden.

On 2 March 2005, the police arrested both Defendants. The plants were not harvested at the time of the arrest. Leaves and branches of the Cannabis plants were placed in two different set of envelopes as Exhibits and produced to the Court.

The prosecution relies on the case of Reece v. PP, Criminal Appeal Case No. 2 of 1989 in which the Court of Appeal held, among other matters, that a custodial sentence of 12 months would have been appropriate penalty for cultivation of cannabis.

Both Defendants concede the offence of cultivation of cannabis plant. They admit that it is a very serious offence.

Defendant Tom Sankuma is 25 years of age. He lives with a woman in a de facto relationship with a child of 1 year old.

He pleads guilty. He is remorseful. He promises to stay away from cannabis. He has no previous conviction.

Sam Ben is 24 years of age. He is a single man. He is a first time offender. He realizes that cultivation of cannabis is prohibited by the law.

The defence counsel submits that the Court should isolate the Defendant Sam Ben in the sentencing exercise because Defendant Sam Ben pleaded guilty to 2 counts of cultivation whereas Tom Sankuma pleaded guilty to only 1 count.

The defence submitted that both Defendants do not know that it is unlawful to cultivate cannabis seeds, although ignorance of the law is not a defence, they asked the Court to take account of that circumstance in their sentencing.

I take into account of what the Defendants say in their defence. I take into account of what they say in their mitigation. I take account of their guilty plea and the fact that they are first time offenders. However, drug offenders must be consistently dealt with. A custodial sentence is appropriate.

I sentence the Defendant Sam Ben of 5 months imprisonment on both counts and to be served concurrently.

I sentence the Defendant Tom Sankuma to 5 months imprisonment the only count he was charged with.

I consider the circumstances of each and both Defendants individually and separately. I decline to suspend the sentences of any of both Defendants.

Both Defendants will serve their respective sentences of 5 months imprisonment with immediate effect.

DATED at Port-Vila this 11th day of May 2005

BY THE COURT

Vincent LUNABEK
Chief Justice