Baure v Kinobou [2000] PGDC 8; DC73 (9 May 2000)

Unreported District Court Decisions

[2000] PNGDC 6 - DUNSTON BAURE V OYANDE KINOBOU

[2000] PNGDC 6

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

CASE NUMBER 61 OF 2000

DUNSTON BAURE

V

OYANDE KINOBOU

Kerema

Nasa M

2 May 2000

9 May 2000

CRIMINAL LAW – Possession of Drugs – Plea – Sentence – Dangerous Drug Act S.3(1)(d)

CRIMINAL LAW – Sentence-District Court-Drug Offence-Minimum penalty - Discretion of Magistrates-National and Supreme Court decisions not only guidance but also binding.

Cases Cited

The State v Aruve Waiba (SC No 1 of 1994)

Panut v Bee [1996] PNGLR 26

Patrick Maip v Thomas Pundu [1997] NI592 Unreported

Richard Cheong v Vincint Nimiel [1981] PNGLR 472

John Ten Konunga v Jowi Gruman [1995] PNGLR

The State v Peter Kaudak [1987] PNGLR 201

Counsel

First Constable Pari for the Informant

Defendant in Person

9 May 2000

NASA M:  Defendant pleaded guilty to one count of having in possession of dangerous drugs namely cannabis, commonly known as “Marijuana”. This is an offence contrary to s.3(1) (d) of the Dangerous Drugs Act, Ch. No. 229 and it reads:

N2>“3.      Production, etc., of dangerous drugs

A person who knowingly:

(a)…

(b)…

(c)…

(d)      is in possession of or conveys a dangerous drug or a plant or part of a plant from which a dangerous drug can be made, is guilty of an offence unless he is authorized to do so by or under some other Act.

Penalty: Imprisonment for a term of not less than three months and not exceeding two years”.

The brief facts of the case are as follows. The defendant had come into Kikori Government Station in the Gulf Province from Mendi Southern Highlands Province. He was carrying 10 kilograms of Marijuana and was on his way to Daru in he Western Province looking for markets. On the 17th of April 2000, police at Kikori intervened, seized the drugs and arrested the defendant.

The prescribed penalty is mandatory and therefore I am obliged to consider a custodial sentence. But before I do that, would I have any other discretion? A number of options are available under the Probation Act, Ch. No.381 but I could not consider them because of its’ own provision: s.16(2) which states:

“In this section “offence” does not include an offence for which a mandatory minimum sentence is provided for by any law.”

Section 199A of the District Courts Act Ch. No.40 provides that after entering conviction, the court may instead of imposing a fine or imprisonment, order the defendant to do specified work for the community. However the kind of work and the manner in which it is to be performed ought to be published in the National Gazette by the Minister. And to date, I am not aware of any such publications. But even if it is published, I am of the view that this offence would not apply and this is because the offence is not of a trivial nature. It is also a discretionary provision when considering the circumstances of such a case and in the instant one, I would decline to exercise my discretion under that provision.

The District Courts Act, s200 (1) also provides that an offender may be released under a good behavior bond to keep the peace if the law under which the offender is charged provides for it and law here would mean the Dangerous Drugs Act. And the Dangerous Drugs Act does not make such provisions and therefore sub-s(1) does not apply in the case before me.

Sub-s(2) allows for a fine to be imposed if the court considers imprisonment is inappropriate and sub-s(3) disallows the application of sub-s(2) if the penalty prescribed is a mandatory one. Accordingly sub-s(2) also does not apply here.

In my view as a District Court Magistrate, except children’s court, in relation to a prescribed mandatory minimum offence where no other sentence is provided for by any given law and unless and until Parliament or the higher courts of this land amends or develops such laws, there remains two discretionary powers upon a magistrate.

The first is under s132 (1) of the District Courts Act and the other is through s.37 (7) of the constitution by a reference in the case of: The State v Aruve Waiba (SC No 1 of 1994) which I will discuss a bit later.

Section 132 (1) of the District Court Act provides that in certain circumstances, the court may after finding an offender guilty and without proceeding to conviction, make an order dismissing the charge or discharging the offender conditionally.

In Panut v Bee [1996] PNGLR 26, the District Court did not apply the mandatory penalties prescribed but applied s.132 (1). On appeal at page 32 para 3 Andrew J (as he then was) said:

“I am satisfied that the order of the District Court was manifestly inadequate given the fact that this was a serious offence and not a trivial one and given the clear intention discernible in the Fisheries Act to impose severe penalties to ensure deterrence for illegal fishing activities for the protection of the nation’s natural resources.”

The court further went onto say that, under the circumstances where the respondent has been found guilty, as a master of a foreign boat, he would have been ordered to pay a fine of up to K250,000.00 as required under s57 (2) (a) of the Fisheries Act 1994 and the District Court should then have ordered the forfeiture of the foreign boat under s67(2) as that was mandatory. The appeal was allowed and orders of the District court were quashed and substituted with the prescribed minimum penalties.

The second discretion is in regard to Amendment No 12 of 1993 of the Criminal Code Act, Ch. No 262 which prescribed a new mandatory minimum penalty for escape under s139 (1) and that is 5 years imprisonment. The supreme Court in THE STATE v ARUVE WAIBA (Supra) in a special reference by Injia AJ (as he then was) considered inter alia, s37(7) which states:

“no penalty shall be imposed for an offence that is more severe in degree or description then the maximum penalty that might have been imposed for the offence at the time it was committed.”

The court considered the amendment in light of the rest of the sections and found that there was an ambiguity in the law that the parliament must rectify. The Supreme Court then concluded that a lenient interpretation must be given to the law in the light of this ambiguity and decided that the court can suspend the sentence.

In the present case, it is apparent that I should consider this authority and s132(1) of the District Courts Act. For they not only provide guidance but are bound to follow: Patrick Maip v Thomas Pundu [1997] NI592 Unreported.

In Richard Cheong –v- Vincent Nemiel [1981] PNGLR 472, the appellant was charged before the District Court at Rabaul for cultivating sixteen marijuana plants. The Court using the minimum penalty under the same Act, imprisoned the defendant for three months. The prisoner appealed and the National Court confirmed the sentence saying the imprisonment term was not manifestly excessive. When considering sentence, the Judge at page 475 went on to say:

“A clear distinction must be drawn in sentencing for drug offences, between person who are engaged in any way in drug trafficking and those who are simply consumers (including addicts). The former will always be imprisoned and for a lengthy term.”

In another drug related case at Mount Hagen, John Ten Komonga –v- Jowi Gruman [1995] PNGLR, the accused was imprisoned for 8 months for trafficking 7 kilograms of marijuana to Cairns Australia. The prisoner appealed on grounds that the sentence was excessive. In dismissing the appeal Woods J (as he then was) at page 208 said:

“After all, is this penalty excessive? Parliament meant something when it legislated a minimum custodial sentence, and it is clearly going along with international agreement on heavy sentences to control drugs. So there must be some special circumstance to warrant a variation of the type of penalty Parliament has insisted upon. The magistrate has considered the appellants personal history and family status but obviously by giving over twice the minimum penalty has considered the gravity of exporting such a large quantity of drugs.”

Further down the page his Honor continued:

“The world demands heavy penalties, Parliament has legislated accordingly, there can be no such person as an innocent or accidental trafficker in this type of situation where the appellant gave false name and a false customs declaration for the contents, and then received a substantial amount of money. The sentence imposed is quite within the rage open and is clearly within the guidelines.”

I accept and fully agree with these comments and the same would I apply in the case before me.

The penalty I propose to impose here should serve as deterrence to the offender as well as a warning to others in the community that their conduct would not escape punishment. I consider the defendants’ guilty plea to be a mitigating factor: The State v Peter Kaudak [1987] PNGLR 201. This should reduce a portion of the appropriate sentence. He was honest, confessed and co-operated with the police at the outset to pleading guilty and to me this demonstrates remorse.

As far as the antecedent report is concerned, the defendant is a single man who has no employment; no previous convictions and moves from place to place particularly his parents’ province of origin, Gulf and Southern Highlands.

In allocutus the offender asked that if I am to impose a custodial sentence, I must consider allowing him to serve his terms here at Kerema Police Lock-up. Unfortunately I can not do that. The Police Lock-up here is not for such purposes. Kerema or the Gulf Province as a whole does not have a proper correctional service set up or even a Rural Lock-up as defined by ss.63 and 64 of the Correctional Services Act, Ch.No.63.

I have considered sentences imposed in many of the mentioned cases as a guide. The prescribed penalty is three months minimum and two years maximum. The appropriate sentence I consider is 8 months and that I impose on the defendant. I suspend 2 months on the condition that he enters into a recognizance to keep the peace and to be of good behavior for a period of twelve months. I further deduct 3 weeks for time in custody and that leaves the prisoner 5 months 1 week to serve. I order the prisoner to serve his sentence at the Bomana Correctional Services.

Police Prosecutor J Pari for the Informant

Defendant in person