Kabilo v Parengkuan [2008] PGDC 139; DC1025 (11 September 2008)

DC1025

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE AT VANIMO
CRIMINAL JURISDICTION

CR. NO: 332 OF 2008

BETWEEN:

AREE KABILO
Informant

AND:

YANNE PARENGKUAN
Defendant

VANIMO: J. AUGUST, DCM
2008: 11 September 2008.

SENTENCE

DANGEROUS DRUG – Possession of Dangerous Drug – Dried Marijuana wrapped in newspaper found in lady’s bag – Foreigner –Indonesian Citizen – Plea of Guilty entered upon instruction from Lawyer – Mitigation – First Time Offender – Wanted to be sentenced to the rising of the Court – Minimum penalty of 3 months imposed.

Dangerous Drug Act, Section 3 (1) (d)

Cases cited:

State v Suwaire Mary Kua [2000] PNGLR p 249

Counsels:

Police for Prosecution
Mr. Karo for the Accused

11 September 2008

AUGUST, DCM: The accused is an Indonesian citizen who entered into the country through Wutung to visit her boyfriend who was employed by a logging company operating in Vanimo, West Sepik Province. Her stay was intended to be temporary.

Facts

On Monday 4th of September 2008 while trying to return to Jayapura Indonesia through the Wutung Border Check Point, the accused was searched by the PNG Police personnel who were manning the gate. Upon checking the lady’s bag, the Police found compressed dried marijuana wrapped in a newspaper in the bag. When questioned, the accused did not say anything in relation to the drug. The accused was brought to Vanimo Police Station where she was questioned, arrested and charged for been in possession of a dangerous drug under Section 3 (1) (d) the Dangerous Drug Act.

On Plea, the accused said to the Court:

"They (Police) found some substance in my bag but the one Police showed me was in a smaller wrapping than the one now produced to this Court."

The Court is of the view that the accused was raising a defence here, but because of the fact that there was Plea In Mitigation filed by Mr. Karo, the Vanimo Forest Company Lawyer who received instructions from the accused, the Court accepted the guilty plea knowing that Mr. Karo with his experience as a Lawyer have provided the accused with the best legal advice and has made it clear about the consequences of a guilty plea.

The Court then confirmed the guilty plea and administered the allocutus. The accused asked the Court if she could pay a court fine.

Plea In Mitigation

The accused is an Indonesian citizen, aged 28 years and comes from Petta Village, Bitung Province, Republic of Indonesia. She claims to be a Christian and is able to distinguish between right and wrong. For her to smuggle drug such as marijuana is a serious criminal offence internationally including Papua New Guinea.

It was submitted that she does not smoke and the situation she was placed in was to her knowledge suspicious in a sense that she did not put the drug in her bag. It was further submitted that she did not witness the search of her bag and regretted not having done so. That could have brushed aside any suspicious circumstances like the drug being dropped into her bag. She admitted that this practice is common in Indonesia where someone is accused through the malicious action of some one else. The accused did not expect any foul play and was placed in a very difficult situation where no one can believe her. She willingly released her bag for customs inspection without expecting the presence of cannabis in her bag.

It was submitted in her Plea In Mitigation that in a guilty plea verdict, the most appropriate sentence apart from custodial sentence and probation would be to sentence her to the rising of the court as in the case of the State v Suwaire Mary Kua [2000] PNGLR p 249. In this case a young widow in her mid 30’s pleaded guilty to a charge of concealing the birth of her child that died during delivery, contrary to section 313 of the Criminal Code. Prior to her appearance in court, the prisoner had spent five (5) months in custody. After the address in mitigation, the prisoner was sentenced promptly to the rising of the court.

In our case, the accused has pleaded guilty and has express remorse to the court and the State. She is a first time offender and would not want to re-offend. She is returning to Indonesia where she will live out the rest of her life after this case is over. The offence was committed under suspicious circumstances and a custodial sentence would appear to be unfair to her. This is an exceptional case, allegedly committed under suspicious and unusual circumstances and a sentence to the rising of the court would be the most suitable option given the degree and nature of this case.

The prosecution did not make any rebuttal to the Plea In Mitigation and left it to the court to make a decision.

Sentence

Basically, what the defendant is saying is that there is a possibility that the Police or Customs officers may have place the marijuana in her bag. This is a PNG version of the Corby’s drug case in Indonesia. It is sometimes difficult to raise this type of defence in court and the defendant has rightly instructed his Lawyer to advice the court to enter a plea of guilty, which the court has accepted because she wanted to return quickly back to Indonesia.

The accused is an Indonesian citizen and is a first time offender in Papua New Guinea.
The Court is cautious not to readily accept that the offence is committed under suspicious circumstances. The Court is also mindful that the amount of cannabis is quite small.

The charge of been in possession of dangerous drug is a minimum sentence offence and carries a penalty of imprisonment for a term of not less than three months and not exceeding two years on summary conviction. The question is what sentence would be appropriate for a foreigner who is returning to her country of origin and suddenly finds herself in this predicament, especially when she has only a short-term visa?

The other option available to the court to get around the minimum penalty is to convict the accused and sentence her to the minimum of 3 months but suspend the sentence and place her on probation under the Probation Act. The only problem with this sentence is that the Probation Officers would need to keep a record and continue to ensure that all the conditions of her probation is adhered to. This would prove to be some extent difficult because she will need to go back to Indonesia in compliance with her visa requirements and would be in breach of the conditions of her probation.

The court is also mindful of a lot of Papua New Guineas who have been caught by the minimum penalty of the Dangerous Drug Act. These Papua New Guineas are sentenced to jail and the court is of the view that to sentence the accused to the rising of the court would not only be unfair but that would be setting a very bad precedent, especially when Vanimo being the border post and gateway to Indonesia where there are always movements of people going into Indonesia and coming into Papua New Guinea. Trafficking of drug and let alone been in possession of drug is a serious offence as reflected by the penalty.

With that in mind and from general knowledge, the penalty on drug or drug related offences is quite severe in Indonesia and here we have one of its citizen been caught in possession of the drug in PNG. If she were in Indonesia, she would get the highest possible sentence under their law.

The case cited in mitigation for the court to consider when sentencing the accused to the rising of the court is in my view not relevant. The circumstances of that case and this present case are quite different. I refuse to accept that option as it would conflict with the minimum penalty provision for the offence of been in possession of a dangerous drug under our law. I refuse to exercise that option and will instead apply the minimum penalty and sentence the accused to a period of three (3) months imprisonment, which shall be served in Light Labour in Vanimo Correctional Services in Papua New Guinea. Ordered accordingly.

Chief Sergeant Simon Maigu for Police Prosecution
Defendant by herself with advice from Mr. Conrad Karo.