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Public Prosecutor v Kalip [2011] VUSC 243; Criminal Case 90-11 (9 September 2011)

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

CRIMINAL CASE No.90 OF 2011

PUBLIC PROSECUTOR

-v-

DIDIER KALIP

Coram: V. Lunabek CJ
Counsel: Mr Tristan Karae, prosecuting counsel not present
Mr Lent Tevi for the Defendant

SENTENCE

Didier Kalip, this is your sentence. On 9 August 2011, you have entered a guilty plea on one count of possession of cannabis, contrary to section 2(62) of the Dangerous Drugs Act [CAP.12].

On 9 February 2011 about 18.36 hours you were in possession of 0.29 grammes of cannabis leaves. This is against the law. The law that you are broken on 9 February 2011 is the law that prohibit all persons in Vanuatu to have cannabis in their possession.

The brief facts are summarized by the prosecution brief of facts. Your lawyer accepted those facts on your behalf before you have entered your guilty pleas. They are set out as follows:

1. On or about the 9th of February 2011 around 18: 36hrs Corporal Christine Philip who is the complainant was at the Parliament park on that night. The complainant and other VMF officers including the Police officers were tasked to provide security details at the main entrance and also to conduct bodily search to the people before entering the Parliament Park
   
2. During that night the complainant was at the entrance facing the LCC store. You were making your way and was stopped by the complainant. The complainant conducted a bodily search on you and found some dried suspected cannabis substances in your pockets.
   
3. The complainant removed the suspected cannabis leaves and took you to the police station where you were detained and the leaves were sent to the laboratory for testing. The test conducted on the suspected marijuana leaves were of cannabis and weighed at 0. 29 grams
   
4. On the 10th of February officer Uriel Leo conducted an interview with you regarding the allegations laid against you. You admitted to being in possession of the cannabis.
   

Possession of cannabis is contrary to section 2(62) of the Dangerous Drugs Act [CAP.12, which provides that:

"The possession of cannabis in Vanuatu except as provided in section 3 is prohibited."

Section 17 provides the penalty for such an offence. Section 17 reads:

"Punishable by a fine not exceeding VT 100 million or to a term of imprisonment not exceeding 20 years or to both such fine and imprisonment."

By perusing the maximum penalty prescribed by law, you can see that the maximum punishment for possession of cannabis is from 100 million Vatu fine up to 20 years imprisonment or both fine and imprisonment.

Possession of cannabis substance is contrary to law and is a serious offence as reflected in the penalty prescribed by law. The sentence to be imposed on you today for your offending must reflect the seriousness of this kind of offending and the particular circumstance of your offending. You have 0.29 grams on your possession on 9 February 2011 as an aggravating factor.

I peruse, read and consider the submissions of the prosecution and submissions filed by your lawyer on your behalf. I have also read the pre-sentence report filed by the Probation Officer to assist the Court in your sentencing.

The report shows that you are 20 years of age. You are a single man. You have skills in playing soccer and your ambition is to continue with your education.

You are a first time offender. You had no intention to smoke cannabis. You are curious to see what cannabis was. You realize your wrongful actions and you express insight into your offending. You had offended due to your peer pressure. You are willing to attend rehabilitation programme/counseling to address your offending.

On balancing between the aggravation and mitigating factors, you are sentenced to 12 months imprisonment as a starting point. Your sentence of 12 months imprisonment is reduced to ⅓ for your guilty plea. I further reduce your sentence to 4 months to reflect your remorsefulness and other mitigating factors.

You are sentenced to 4 months imprisonment suspended for a period of 2 years. During the period of suspension you must not re-offend. If you reoffend before the suspension period of 2 years you shall be sent to prison for 4 months after you are convicted on the new offence.

In addition, you will perform 20 hours community work and 12 months supervision.

SENTENCE ORDER

1. Mr Didier Kalip, you are sentenced to 4 months imprisonment suspended for 2 years.
2. In addition, you are ordered to perform 20 hours of community work and 12 months supervision.
3. You have 14 days to appeal your sentence if you are not happy with it.

DATED at Port-Vila this 9th day of September 2011

BY THE COURT

Vincent LUNABEK
Chief Justice