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

CRIMINAL CASE No.21 of 2006

PUBLIC PROSECUTOR

-v-

XAVIER JOHNSON KALFAU
RORO PETER YAUKO

Mrs Kayleen Tavoa, Public Prosecutor, for the prosecution
Mr Peter Bartels for Roro Peter Yauko
Mr Jack Kilu for Xavier Johnson Kalfau

SENTENCE

This is the sentence of both Defendants: Xavier Johnson Kalfau and Roro Peter Yauko. They were both charged and pleaded guilty to possession of cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12].

On 11 April 2006, the two (2) Defendants were seen at the Mamu Bar. They were arrested by the police officers and brought to police station. Police searched them and found the following items on:-

Xavier Johnson Kalfau Bag
•	1 Bag full black and grey in colour.
•	The bag is open showing contents 
•	It showed cannabis leaves in plastic
•	Cannabis leaves rolled in newspapers 
•	The contents weighted about 23 grammes.

Roro Peter Yauko Bag
•	Bag when opened showed red plastic 
•	Inside plastic, there were cannabis seeds
•	Plastic cannabis seeds 
•	Plastic cannabis seed on the paper
•	They weighted about 38 grammes.

Police officers tested the items. The result of the test shows that the leaves and seeds are of blue color, confirming that they were cannabis leaves and seeds of cannabis.

As Mr Jack Kilu does not attend the submissions hearing, the Court allowed Defendant Xavier Johnson Kalfau if he has something to say before the court sentence him.

Xavier Johnson Kalfau says the following:- He is 20 years of age. He lives in a de facto relationship with a woman and they have 2 children age 1 year and 1 week respectively.

On 11 April 2006, he went to town to look for a job. He then met with a man who proposed to him to pay some leaves and seeds of cannabis. He paid them not for his personal use but to try to sale them. He left school in 2003 as his parent could not afford to pay for his school fees. He is still interested to go on schooling. He informed the Court that by early next month (October) he will attend a youth para medical training sponsored by USA.

He further informs the Court that he is got brain malaria and would need special attention and treatment. He says this is the first time he possesses cannabis. He apologizes to the Court for what he has done and says he won’t come to this Court again. He asks for the Court leniency. He has been remanded for 2 months in custody. 

Mr Peter Bartels provides the following information in mitigation for Roro Peter Yauko. Roro Peter Yauko is young single man aged 20 years. He is presently a first year law student at the University of the South Pacific.

The Court is informed that Roro Peter Yauko admitted the offence of possession of cannabis by him agreeing to have the dangerous drugs placed in his bag by a "Third Party" who at this time is known to the police but has not been apprehended.

It is submitted on behalf of this Defendant that the circumstances of the commission of this offence by the Defendant Roro Peter Yauko does not have the hallmarks of a commercial enterprise in the sale of dangerous drugs, but it indicates an offence at the lowest end of the range of seriousness for those drugs offences prescribed by the legislation. Reference is made to other cases of drugs to this Court in particular the case of PP v. Ben (2005) Criminal Case No.18 of 2005 where the Defendant was sentenced to a period of 2 years imprisonment concurrent on 2 charges of selling cannabis. It is submitted that the previous decisions are different and must be distinguished from this matter on its circumstances from the mere commercial and planned aspects in the Ben’s case. It is submitted that this Court accept these type of offences consist of varying degrees of culpability and seriousness and if the Court so accepts that proposition then it gives appropriate recognition to the degree of culpability of this Defendant in these specific circumstances. It is finally submitted that if the Defendants is to receive a sentence of imprisonment (without suspension) would receive an additional punishment of losing the progress he has made in his studies to date at the University of the South Pacific or even more harshly be expelled from that University. This Defendant has prior good record, he pleads guilty, he is relatively young and he cooperated with the investigating police officers.

THE LEGISLATION

Section 2 of the Dangerous Drugs Act [CAP.12] provides as follows:

"The importation, sale, supply or possession in Vanuatu of the following substances and materials except as provided in Section 3 is prohibited…".

Section 2(13) then specifies cannabis as a substance referred to in Section 2.

Section 17 provides for the penalties as follows:

"Every contravention of the provision of this Act shall constitute an offence punishable by a fine not exceeding VT100,000,000 or to a term of imprisonment not exceeding 20 years or to both such fine and imprisonment."

In sentencing the two (2) Defendants I must ensure that the sentence I am about to pass on each of you has a deterrent effect on you and to others as the purpose of the Court sentence must be to protect the members of the community from such offences.

In sentencing each of you, I take into account of your circumstances individually and what you said or your counsel said on your behalf.

The appropriate sentence in the type of offending before the Court is a custodial sentence. In the circumstance of this case, I sentence each of you as follows:-

•	6 months imprisonment for the Defendant Xavier Johnson Kalfau. I consider whether your circumstances justify a suspension. You need a special medical attention as you have a brain malaria. You pleaded guilty. You were a first time offender. These factors justify a suspension. I make Order that your 6 months imprisonment sentence be suspended for a period of 1 year from today's date.
•	6 months imprisonment for the Defendant Roro Peter Yauko. I consider also whether your circumstances justify a suspension of your sentence. You are relatively a young man. You undertake studies at USP. There is a risk of your expulsion from the University if you are sent directly to prison today. The foregoing reasons, I made Order to suspend your sentence of 6 months for a period of 1 year from today's date.

Each of you has 14 days to appeal.

FURTHER DIRECTIONS

It is further ordered and directed that the cannabis leaves and seeds be destroyed by the Public Prosecutor or an officer of the Public Prosecutor’s Office and to be witnessed by the Registrar of the Supreme Court or a Court officer on 4 December 2006.

Dated at Port-Vila this 29th day of September 2006

BY THE COURT

Vincent LUNABEK
Chief Justice