Akasiki v Auhova [2007] PGDC 134; DC700 (17 July 2007)

DC700

PAPUA NEW GUINEA
IN THE DISTRICT COURT AT KEREMA

CIR No: 129/2007

Thomas Akasiki
Informant

V

Andrew Auhova
Defendant

KEREMA: A. ARUA
2007: July 17

SENTENCE

Criminal Law – Sentence – Possession of Dangerous Drugs – Where minimum sentence provision present, court has no discretion to impose alternative penalty but to impose custodial sentence of any term between the minimum and the maximum sentence depending on the circumstances of the case.

Aggravating factors – Quantity of the drugs and the circumstances under which the offence was committed – Defendant in the process of executing a planned drug run for sale or delivery when arrested – A sentence longer than the minimum appropriate.

Cases cited: Nil

First Constable Peter Janjip for Police Prosecutions.
Defendant in person.

17 July, 2007

ARUA. The defendant had pleaded guilty to being in possession of three packets of dangerous drug, namely cannabis, also commonly known as marijuana, thereby contravening to section 3 (1), (d), of the Dangerous Drugs Act.

Briefly, the facts are as follows:

On Thursday 12 July, 2007, the defendant, with other youths had gone to Silo and Uamai villages located about fifteen to twenty kilometers along Kerema to Malalaua highway to purchase cannabis.

Police had received information about their trip and were on motorized patrol on the look out for them. While on patrol near Wara Kerema, the defendant was spotted riding a bicycle towards Wara Kerema. The police motorized patrol, suspecting that he was in possession of dangerous drugs signaled to the defendant to stop. Knowing that he was in possession of the drugs (cannabis), the defendant ran into the bushes to hide and escape from the police. Police went in after him and caught him. Upon search of his bag they found three packets of cannabis (marijuana) inside. The defendant was then taken to Kerema Police Station for questioning.

At the police station he stated that the drugs were not his. He had been given money by some youths in Kerema to buy them and was taking them back to the owners when caught. He was then arrested, cautioned, charged, informed of his rights and placed in the cell.

Upon the charge being put to him the defendant freely admitted it. He further stated that he had nothing further to say, but requested the court to be lenient on him when considering penalty.

The prosecution submission on penalty demanded for the maximum sentence of two years to be imposed on the defendant. Their reason was that this type of offences were prevalent in the province and the court needed to impose tough penalties to deter others.

In deciding on the penalty, I have noted and considered the fact that the defendant had cooperated and admitted to the charge against him. He admitted that he was wrong and had shown remorse for what he did. However, though he had been cooperative all along, he has a prior conviction against him for assault, which is a factor that weighs against him.

I also note that drug running is a serious problem in this province. Gulf province has become some sort of a transit point for drug runners who bring down drugs from the highlands and the interiors of the province for transportation to the Western province were they are exchanged for guns.

The manner and the circumstances under which the defendant and his friends went about to purchase the drugs and convey them to Kerema needs to be considered as well. Surely, he was not an innocent party to the whole scheme. He was part of a pre organized or planned drug trip when he was arrested.

He had gone out to the outlying villages to purchase the drugs either for himself or his friends. He clearly knew what he was doing and therefore he should also be prepared to face the consequences of his actions. The quantities of the drugs, being that there were three packets also need to be taken into consideration as these are factors that aggravate the defendant’s situation.

The defendant had elected not to say much, only requesting the court to be lenient. This prompted me to consider alternative penalties to that provided for under s. 3(1), (d) of the Dangerous Drugs Act.
Having considered the above, I think that because there is a minimum sentence provision I have no discretion to impose any alternative penalty, but to impose a custodial sentence between the minimum and the maximum, depending on the circumstances of the case.

Even if I had the discretion to impose alternative penalty, the circumstances of the case requires that I impose a custodial sentence. This is a case that does not; in my view require the court to impose the minimum sentence of three months. The circumstances of the case and the fact that this was a pre organized drug run require that the court should impose a sentence much higher than the minimum. This would also serve as a warning to other would be offenders and would deter them from committing similar offence.

Accordingly, I sentence the defendant to one (1) year imprisonment with hard labour to be served at Bomana Correctional Service. I further order that the exhibits of three packets of cannabis (marijuana) be forfeited to the State and be destroyed after the expiration of thirty days.

Orders accordingly.