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Public Prosecutor v Floflo [2024] VUSC 170; Criminal Case 1190 of 2024 (10 July 2024)

PUBLIC PROSECUTOR

v

LAMBAMU FLOFLO

Date of Plea: 24 May 2024
Date of Sentence: 10 July 2024
Before: Justice M A MacKenzie
Counsel: Mr. C. Shem for the Public Prosecutor
Ms. B. Taleo for the Defendant- via zoom link, Santo Courthouse
Defendant- via zoom link, Santo Courthouse

SENTENCE

1. Mr Lambamu Floflo, you appear for sentence having pleaded guilty to one charge of possession of cannabis. The maximum penalty is 20 years imprisonment, or a fine not exceeding VT 100 million or both.
   

The Facts

2. On 12 March 2024 you were in possession of cannabis. The cannabis was in your bag. Testing confirmed it was cannabis, with a net weight of 14 g.
   
3. You admitted to police that the cannabis was yours, and that you smoke cannabis.
   

Sentencing purposes/principles

4. The sentence I impose must hold you accountable and must denounce and deter your conduct given that you were in possession of cannabis. Cannabis is an illegal drug which causes social harm. The sentence should ensure you take responsibility for your actions, and help you to rehabilitate. It must also be generally consistent.
   

Approach to sentence

5. Sentencing involves 2 separate steps; Jimmy Philip v Public Prosecutor [2020] VUCA 40, which applied Moses v R [2020] NZCA 296.
   

Starting point

6. The first step is to set a starting point.
   
7. The one aggravating factor is the quantity of cannabis, being 14 g.
   
8. There are no mitigating features of the offending itself.
   
9. There is a guideline case for cannabis cultivation, Wetul v Public Prosecutor [2013] VUCA 26. It also applies to possession of cannabis.
   
10. Both counsel have filed written submissions as to the appropriate starting point, and referred the court to cases to assist in selecting the appropriate starting point.
    
11. The most factually similar case is Public Prosecutor v Wilson [2024] VUSC 59. The defendant was in possession of 8.447 g of cannabis and the offending fell into Category 1 of Wetul, with a starting point of 12 months imprisonment.
    
12. Here, the offending involves a relatively modest amount of cannabis for personal use. There is no evidence of commerciality here at all.
    
13. Therefore, it falls withing Category 1 of Wetul. So, the usual sentencing outcome would be a fine or other community-based sentence, or a short custodial sentence.
    
14. Consistent with Wilson, I adopt a starting point of 12 months imprisonment
    

Guilty plea and personal factors

15. While you pleaded guilty at an early opportunity, I agree that the discount should be limited to 25%. That is because the case against you is overwhelming. This is consistent with Public Prosecutor v Raptick [2023] VUSC 226. That equates to a discount of approximately 3 months from the starting point.
    
16. You are aged 34 years. You are a first offender with no criminal history.
    
17. You were co-operative with police.
    
18. The Probation report notes that you are remorseful. I accept your remorse is genuine. You have learnt your lesson.
    
19. You have a child and you are described as a quiet and good person in your family.
    
20. For your prior good character, cooperation, remorse, and family circumstances, I reduce the starting point by 1.5 months imprisonment, which equates to approximately 10 %.
    

End Sentence

21. The provisional end sentence is 7.5 months imprisonment.
    
22. You have been held in custody since 12 March 2024. You have been in custody for 4 months, which equates to an effective sentence of 8 months imprisonment. This is how the calculation was recently undertaken by Trief J in Public Prosecutor v Saly [2024] VUSC 112. As per Saly, the discount to reflect time spent in custody is applied prior to arriving at an end sentence. That approach is problematic here, as you have effectively been in custody longer then than any term of imprisonment I could impose today.
    
23. As you have effectively served a sentence, your time in custody means you have been in custody for slightly longer than the provisional end sentence. Your time in custody means that the need for accountability, deterrence and denunciation has been met. But for the time already spent in custody, I would have imposed a sentence of imprisonment and suspended the sentence for 12 months.
    
24. No other sentence is to be imposed given the relatively modest amount of cannabis and the length of time you have effectively been in custody to date.
    
25. The cannabis material is to be destroyed.
    
26. You have 14 days to appeal.
    

DATED at Port Vila this 10th day of JULY 2024
BY THE COURT

.................................................
Justice M A MacKenzie