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Public Prosecutor v Kaloran [2009] VUSC 109; Criminal Case 109 of 2009 (6 November 2009)

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

Criminal Case No. 109 of 2009

PUBLIC PROSECUTOR

V

KIKI KALORAN

Coram: Justice D. Fatiaki

Counsel: Mr. Tevi for the State
Mr. Bal for the Defendant

Date of Sentence: 6th November 2009

SENTENCE

1. On 8th October 2009 the Defendant Kiki Kaloran pleaded guilty to and was convicted of the following offences: against the Dangerous Drugs Act [cap12]

Count 1: Supplying a Dangerous Drug namely cannabis leaves; and

Count 2: Possession of a Dangerous Drug namely cannabis leaves.

2. The brief facts of the case which the defendant admitted are that on the 28th of February 2007 you gave the complainant Nono Ligo a plastic bag containing dried leaves. The complainant became suspicious and took the bag to the police station and reported that he had received it from you Kiki Kaloran. The leaves were tested and confirmed to be cannabis leaves. You were then interviewed by the police and you admitted giving the complainant the plastic bag containing the cannabis leaves but you denied selling the leaves to the complainant. You also admitted in your interview that you used to smoke cannabis but gave it up in June 2009.

3. It is not known whether the cannabis leaves founded in the plastic bag were weighed in this case as they should have been. Accordingly this Court is unable to make any findings in that regard in assessing the appropriate sentence in this case. It is also unclear why it has taken more than 2 years to finalize this fairly simple straight forward case but whatever the reason, the defendant has stayed out of trouble since then.

4. Further more, in the absence of any evidence of recovery or seizure of a second quantity of cannabis leaves from the defendant, I am constrained to assume that both counts in the information refers to the same cannabis leaves.

5. I have received and considered your pre-sentence report prepared by the probation service and note the following personal circumstances:

- You are now 21 years of age (Date of Birth: 24/04/1988);

- You live with your parents at Nambatri area;

- You are now married and have a year old son;

- You attended school up to class 6 and have limited literacy skills;

- You were a user of cannabis but gave it up in June 2007 on medical advice due to chronic asthma;

- You are gainfully employment as a bus driver and hope one day to run you own transport business;

- You have expressed an interest in undertaking a rehabilitation program and are considered "a law risk to the community".

6. The public prosecutor also submits that a suspended prison term and community service would be an appropriate sentence in your case. Defence counsel similarly urges a non-immediate custodial sentence and supervision.

7. The Court of Appeal in allowing the appeal and in imposing a suspended prison sentence in PP-v- Andrew and Noel [1998] VUCA1 said:

"It will be noted also that parliament had fixed the punishment for all drugs offences ranging from a fine up to 100 million vatu or a term of imprisonment up to 20 years. The legislative clearly intends to give a wide range of (sic) room within which to move in order to impose appropriate penalties for drug offences based on the circumstances of the particular cases before the Court."

8. In similar vein the Court of Appeal said in reducing the sentence in PP-v- Tukoro [1999] VUCA9:

".....it is not insignificant that Parliament in increasing the quantum of the penalties (for drugs offences) has not seen fit to alter the form or nature of the penalties that may be imposed thereby recognizing that drug offences (like other sorts of offending) may be equally and justify dealt with by the imposition of a fine alone"

and later: The Court said

"Drug offences like any other offences against the criminal law are capable of being committed with varying degrees of culpability and seriousness and a trial Court faced with the different task of sentencing an offender must always bear in mind the particular circumstances of both the offending as well as the offender."

9. In this latter regard the supply of cannabis leaves in this case was a bare voluntary giving with no commercial element or monetary payment in exchange. There is also no suggestion that the cannabis leaves supplied or possessed by the defendant was of such a quantity or weight as to be sufficient for anything other than personal consumption.

10. More recently the Hon Chief Justice in PP –v- Bule [2006] VUSC 91 imposed a suspended prison sentence in a case which included a charge of attempting to sell over 600 gram of cannabis which is much more serious than the facts in the present case.

11. Kiki Kaloran I have listened and carefully read everything that your counsel has urged on your behalf including your guilty pleas to both counts; your early admissions to the police and your previous good record.

12. Bearing all that in mind I sentence you as follows:

On Count 1: Supplying Dangerous Drugs: Contrary to Section 2 (13) of the Dangerous Drugs Act [cap.12] - 6 months imprisonment; and

On Count 2: Possession of Dangerous Drugs: Contrary to Section 2(13) of the Dangerous Drugs Act [cap.12] - 2 months imprisonment to be served concurrently with the sentence imposed in Court. This means that you will only need to serve a total sentence of 6 months imprisonment for both offences.

13. Finally, in view of all the circumstances in the case in particular, the non-commercial "one off" nature of the crime; your ready admission to the police when questioned and your guilty pleas and the 2 years that have elapsed since the commission of the offences, I consider this an appropriate case for the exercise of the Court’s discretion under section 57 of the Penal Code.

14. The sentence of 6 months imprisonment is accordingly suspended for 12 months on condition that you do not commit any further offence in the next 12 months. I must warn you Kiki Kaloran, if you breach that condition and are convicted of any offence within the next 12 months you may be required to immediately serve this sentence of 6 months imprisonment in addition to whatever other sentence is imposed on you for your reoffending.

15. You have 14 days to appeal against this sentence if you disagree within it. The cannabis leaves are ordered to be destroyed after the 14 day appeal period expires and if no appeal has been filed.

DATED at Port Vila, this 6th day of November, 2009.

BY THE COURT

D.FATIAKI
Judge.