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Tukoro v Public Prosecutor [1999] VUCA 9; Criminal Appeal Case 02 of 1999 (4 October 1999)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Criminal Jurisdiction

CRIMINAL CASE No. 2 OF 1999

REECE STEPHEN TUKORO
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram. Acting ting Chief Justice Vincent Lunabek
Hon. Justice Bruce Robertson
Hon. Justice Daniel Fatiaki

unsel: Mr. Hilary Toa for the Appellant
Public Prosecutor, Mr. Willie Daniel, for for the Respondent.

JUDGMENT

On the 18^th of August 1998 the Appellant appeared before the Supreme Court at Luganville, Santo charged with the following offences under the Dangerous Drugs Act [CAP. 12]:

Count 1: Importation of Cannabis seeds;

Count 2: Being in possession of Cannabis seeds; and

Count 3: Cultivation of Cannabis plants.

For each of these offences the Dangerous Drugs Joint Regulation (Amendment) Act No. 29 of 1989 appears to provide for a penalty of a fine not exceeding 100 Million Vatu or to a term of imprisonment not exceeding 20 years or to both such fine and imprisonment. (see: Supplementary Judgment).

The Appellant pleaded guilty to the charges and upon his conviction the trial Judge sentenced him to concurrent terms of 5 years imprisonment on each to be effective from his committal in March 1998.

The Appellant now appeals against the sentence imposed on the sole ground that it is manifestly excessive and urges various particulars in support.

The learned trial Judge in his comprehensive sentencing remarks rejected the various matter urged by the Appellant in mitigation as unworthy of belief and drew attention to the seriousness with which drug offences are viewed by Parliament as exemplified by the substantial increase in the penalties provided for such offences in the 1989 Amendment Act earlier referred to.

This Court has previously expressed its view that the sentences imposed for drug offences must reflect the seriousness with which the law views such offences. In this regard it is not insignificant that Parliament in increasing the quantum of the penalties 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 justly dealt with by the imposition of a fine alone.

Needless to say if the Legislature had intended a mandatory custodial sentence for all drug offences it could quite easily have made its intentions clear by simply removing any non-custodial alternative. The fact that it did not speaks volumes of Parliament’s true intentions and it behoves the Courts to bear that in mind whenever sentencing a drug offender.

The Learned trial Judge then referred in his sentencing remarks to the sentences imposed in five (5) cases that have come before the Courts since the penalties for drug offences were increased and observed that the trend from this list of cases is that drug offences are on the rise. With respect, we cannot agree that these cases necessarily or inevitably reflects such a trend of prevalence in offending nor do we accept the trial judge’s criticism of the particular sentences imposed in the cases referred to in his remarks.

We accept that prevalence and deterrence are relevant considerations for a sentencing Court but neither consideration excuses the imposition of a wholly disproportionate or unduly severe sentence unrelated to the particular circumstances of the case before it.

Indeed in one of the cases referred to by the leaned trial Judge, namely, Public Prosecutor –v- Andrew and Noel in which sentences of 5 years imprisonment were imposed for offences of cultivating cannabis and possession of cannabis seeds, this Court allowed the appellants’ appeal against the sentences and imposed suspended sentences of 9 months and 6 months imprisonment respectively. (see: the Judgment of the Court in Criminal Appeal Case No. 7 of 1997 delivered on the 8^th of January 1998).

In doing so this Court reiterated the duty of a sentencing Court ‘(to) always bear in mind the particular circumstances of a given case before it, as each case must be considered in the light of its own facts. Sentences which Courts impose must be appropriate according to the circumstances of the particular case.’

We feel sure that had the decision of this Court in Criminal Appeal Case No. 7 of 1997 been drawn to the learned trial Judge’s attention he would not have made the criticisms that he made nor would he have sought to compare the appellant’s culpability in the present case with that of Andrew and Noel.

Having said that we accept that the present appellant’s case might be considered as being more serious in so far as this appellant plainly knew about the nature of the seeds he had in his possession and had intentionally brought them into the country. The number of seeds (134) involved in the present case is a further aggravating feature. We note also that there was an apparent willingness on the appellant’s part to distribute the seeds although we are satisfied that there was no commercial element in any distribution that occurred. These factors make it inappropriate to impose a suspended sentence of imprisonment and the learned trial judge was plainly correct in rejecting the appellant’s request in that regard.

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 difficult task of sentencing an offender must always bear in mind the particular circumstances of both the offending as well as the offender.

In this latter regard the appellant, on his own admission, might be categorised as a mature long-term regular user of cannabis. As for the brief facts accepted by the learned trial Judge and admitted by the appellant in his police caution interview, these may be conveniently summarised as follows - in February 1998 the appellant entered Vanuatu carrying cannabis seeds in his pocket which he had not declared to Customs. Subsequently he had planted twenty (20) seeds, each in a half coconut shell. Of the seeds planted, only one (1) germinated but that later withered away. He had voluntarily surrendered the remaining seeds to the Police and had readily admitted all of the above matters when interviewed under caution. In similar vein and although not obliged to, the Appellant made a comprehensive statement before the committing Magistrate admitting the commission of the offences.

By way of mitigation, the appellant, who elected to speak on his own behalf, placed various matters before the trial judge for his consideration. For present purposes we would merely highlight the following - the appellant’s voluntary surrender of the remaining seeds to the police even before any enquiries had begun; his subsequent co-operation and ready admission to the commission of the offences to the police and the committing magistrate; and his plea of ‘guilty’ before the learned trial judge.

These are significant mitigating factors which deserved more than the passing reference they received in the trial judge’s sentencing remarks and, properly considered would, in our view, have had a bearing on the length of the sentence imposed on the appellant.

Mindful of our judgment in Criminal Appeal No. 7 of 1997 and in light of the foregoing we are constrained to the view that the learned trial judge erred in imposing a sentence which was manifestly excessive in the particular circumstances of the case.

In light of all the circumstances including particularly the appellant’s co-operation and his plea of ‘guilty’, we are satisfied that a term of imprisonment in the vicinity of 12 months would have been appropriate. He has already served such a sentence so the appeal is allowed and we direct his immediate release from prison.

There is a further matter which cannot be left without some comment and that is the suggestion in the learned trial Judge’s sentencing remarks that an offence against the Dangerous Drugs Act as amended might be triable summarily in the Magistrate Court. This cannot be correct in light of the provisions of Section 4 (2) of the Courts Act [CAP. 122].

Dated at Port Vila, this 4^th day of October 1999.

BY THE COURT

Vincent Lunabek J.
Acting Chief Justice

Bruce Robertson J.
Judge

Daniel Fatiaki J.
Judge