Public Prosecutor v Assial
SENTENCE
1. Defendant Diomel Assial (“Mr. Assial”), you entered guilty pleas on one Count of unlawful possession of cannabis substances, contrary to sections 2(62) and 17 of the Dangerous Drugs Act [CAP 12]; and one Count of Attempted sale of cannabis substances, contrary to section 28 of the Penal Code Act [CAP 135] and sections 2(62) and 17 of the Dangerous Drugs Act [CAP 12].
2. On 13 February 2025, between 18:00 pm – 18:15 pm, at Ninane store, Fres Wota 4, Vanuatu Mobile Force (VMF) officers patrolled in that area.
3. At that time, the officers stopped their vehicle because they saw the trouser of the defendant was slacking down and they told the defendant to pull his trouser back up. An officer saw that the defendant was holding two rounded balls wrapped up with aluminum foil in his right hands. The officer saw that there were dried leaves inside one of the balls, and they suspected that it was illegal substances
4. The officers conducted a body search on the defendant and found that the defendant had in his possession two balls rounded up with aluminum foil. They removed these two balls from the defendant.
5. The officers arrested the defendant and put him inside the VMF vehicle, they asked him whether there were more substances that he had in his possession? The defendant admitted there were some in his house.
6. The Defendant took the officers to his yard. The Defendant told the officer to go to his bedroom. Inside the bedroom, the officers found a silver cake tray containing dried leaves of substances.
7. On 14 December 2025, the Police cautioned the defendant and he admitted he was rolling small rounded up balls of dried leaves substances for sale at 100 Vatu each. He estimated that he could sale 50 balls per day (5000 Vatu per day).
8. On 17 February 2026, Police obtained an additional statement from the Defendant and the Police officers took the defendant back to his house and to this bedroom where he kept the dried cannabis leaves.
9. On 19 December 2025, Police Constable Laurent Charley conducted a test on the dried cannabis leaves seized from the defendant and at his house, the result of the test showed that the dried cannabis leave reacted positive to cannabis.
10. The total net weight of the dried cannabis leaves is 78.5 grams
11. The Court noted that the Prosecution summary of facts showed that the total quantity of the cannabis substances at the possession of the Defendant was 78.5 grams but not 262.3 grams given in the Prosecution submissions. That quantity of 262.3 grams will be disregarded for the purpose of this sentencing as the defendant pleaded guilty to the cannabis substances found at his possession and which he was attempted to sell weighing 78.5 grams.
12. The maximum sentence to this type of offending is a term of imprisonment not exceeding 20 years or a fine not exceeding 100 million Vatu or such an imprisonment and fine.
13. In the present case, there are no aggravating factors of the offending but the following aggravating factors exist: -
• The quantity of the prohibited substances – 78.5 grams.
• The defendant was aware of the illegal use of the substance, but chose to possess it, despite that knowledge.
• The defendant had intent to sell the prohibited substance for profit.
• The prohibited substance had been packaged with aluminum foil and hand-rolled into small balls indicating commerciality.
• Some of the dried substance had been concealed inside of the defendant’s bedroom.
• The defendant sold the prohibited substance to individuals, thus exposing them to the long-lasting impact of its effects.
14. Wetul -v- Public Prosecutor [2013] VUCA 26 is the guideline judgment of the Court of Appeal in this type of offending. The relevant part is when the Court stated: -
“We take this opportunity to consider sentencing guidance to cultivation of cannabis cases in the light of developments since this Court Judgment in Naio -v- Public Prosecutor [1998] VUCA 1; Criminal Appeal Case 07 of 1997.
In considering the sentencing levels, we are conscious that there has been an increase in cannabis cultivation and dealing, particularly involving the growing of plants in the Island of the Republic for purposes of sale.
We also consider the need for guidance to sentencing Courts as this Court noted in this case of Naio that:
“Parliament had fixed the punishment for all drug offences ranging from a fine up to 100 Million Vatu or a term of Imprisonment up to 20 years. The Legislature clearly intends to give the Court a wide range of room within which to move in order to impose appropriate penalties for drug offences based on the circumstances of the particular cases before the Courts. There are offences much more serious than those which the appellants were convicted of. For such offences the Courts will not doubt consider meeting them with severe sentences.” (page 4).
We consider appropriate to divide cannabis cultivation offending into three broad categories:
Category 1 consist of the growing of a small number of cannabis plants for personal use by offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt by a fine or other non-custodial measure. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of community work and supervision or even a short custody term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a section 4 offence of cultivation for supplying or possession for supply, as opposed to importation, sale, supply or possession. (s2).
Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and very limited extent a lower starting point may be justified.
Category 3 is the most serious class of such offending. It involves large-scale commercial growing, usually with a considerable degree of sophisticated and organisation. The starting point will generally be four years or more.”
15. The Prosecution refers to Public Prosecutor -v Titus [2024] VUSC 364 as comparative type case as the present case. In Titus case, the defendant pleaded guilty to 1 Count of possession of cannabis substances. The Police confiscated dried plant materials wrapped in aluminum foil, inside of the defendant’s trousers. During his caution interview, the defendant admitted the substance was for personal use, and that he would sometimes sell to teenagers. A presumptive test was conducted, confirming the plant materials were positive to cannabis, with a net weight of 50 grams.
16. The Court determined that in spite of the moderate amount of cannabis for personal usage, there was evidence of infrequent sales. In consideration of this, the starting point should be at the higher end of category 1 of Wetul guideline, warranting a short term of imprisonment. Consequently, the Court adopted a starting pint of 14 months imprisonment resulting in an end sentence of 7 and half months imprisonment suspended for a period of 18 months. In addition, the defendant was ordered to undertake 6 months supervision and 60 hours of Community Work for rehabilitation purposes.
17. The Prosecution submits that the facts of Titus case are somewhat analogous to the present case. However, here, the defendant confirmed in his first statement that he sold 50 rolled-up balls (‘ballons’) worth Vt 100, per day. This falls under the lower end of Category 2 of Wetul, as the defendant sold cannabis on a commercial basis, as opposed to infrequent sales. This warrants a higher starting point to reflect this.
18. I consider there is evidence of selling 50 rolled up balls (“ballons”) worth 100 Vatu per day which falls under the low end of Category 2 of Wetul category. I sentence the defendant to 2 years imprisonment as an appropriate starting point sentence.
19. In mitigation, Mr. Assial, you are 27 years old. You pleaded guilty to the offences at the first – time opportunity given to you by the authorities. I give you an allowance of one Third (33%) to reflect on your early guilty pleas (8 months).
20. You are a first – time offender with no previous conviction until this offending. You are remorseful. I give you a further deduction of 3 months to reflect on your other mitigating factors.
21. You are remanded in custody from 16 November 2025 to 18 December 2025 which is 1 month and 5 days. This represents an effective time spent of 2 months and 10 days. This time spent has to be deducted from you sentence.
22. You sentence is reduced to 10 months and 20 days imprisonment.
23. The next question is whether this sentence of 10 months and 20 days imprisonment should be suspended. I consider the nature and circumstances of the offending and your character as the offender under section 57 of the Penal Code Act [CAP 135]. I take it that this offending is in the lower scale of category 2 of Wetul categories. I consider to suspend it and I suspend your imprisonment term of 10 months and 20 days for a period of 2 years. During the period of the suspension of your sentence, you shall not re-offend. If you re-offend during the period of the suspension of your imprisonment sentence (of 10 month and 20 days), this imprisonment sentence shall be re-activated, and you shall also be dealt with for the new charge according to the law.
24. In addition, you are ordered to undertake 6 months supervision under the supervision of a probation officer and you are ordered to perform 60 hours of Community Work for the purposes of rehabilitation.
25. You have 14 days to appeal this sentence if you are unsatisfied with it.
DATED at Port Vila this 10th day of June 2026.
BY THE COURT
Hon. Chief Justice Vincent Lunabek