Police v Keisi [2009] PGDC 38; DC895 (2 June 2009)

DC895

PAPUA NEW GUINEA
[IN THE JUVENILE COURT OF JUSTICE]

JC NO: 07 of 2009

BETWEEN:

Police
Informant

AND:

Lui Keisi
Defendant

Aitape: M Samala
2009: 02 June

Juvenile Court - Jurisdiction of Juvenile Court sections 5 & 6 presumed under section 9 of the District Courts Act, Defendant in possession of seventy six (76) rolls of marijuana drug, Admission by plea, Convicted and placed on steep conditional bond without surety for one year

Cases Cited:
No case

References:

1. District Courts Act, section 9
2. Juvenile Courts Act 1991, Sections 5, 6, 23, 27 and 32
3. United Nation Charters, The Beijing Rules & Tokyo Rules

Counsel:

Constable Simon Tiwi-Juvenile Police Prosecutor, For the informant,
The Defendant in person with parent Julie Keisi (mother) and Mr. Alois Kapa (relative)
Lay Members - Mr Noel Moksen, Office of District Welfare Service
- Mr Elias Wowi, Office of Probation

REASON FOR DECISION

02 June 2009

M Samala: Defendant is 17 years old from mixed Aitape and Manus parentage and resides with parents here at Aitape Town Airstrip settlement stand charge with one count for being in possession of 76 rolls of marijuana drug on 27 May 2009. The proceeding is close proceedings with only the presence of defendant’s natural mother Mrs. Julie Keisi and an adult male relative Mr. Alois Kapa and two lay members, respectively from District Welfare Service and Volunteer Probation Service. The exercise of Juvenile Courts jurisdiction is presumed from section 9 of the District Courts Act as Aitape District Court is not a gazetted juvenile court area pursuant to section 5 and that I am not an appointed juvenile court magistrate pursuant to section 6 of the said Act, the Juvenile Courts Act 1991.

2. FACTS

Brief facts are that, defendant on 27 May at Aitape Airstrip Settlement was in his possession of a sealed plastic containing 76 rolls of marijuana 3 centres long intended for personal consumption and sell. He has since been placed in custody till his appearance now before court.

3. The general background of the defendant is, he is educated to Grade 8, his father is a former PNGDF soldier and is away in NCD pursuing retrenchment claim against the State while the mother is a house wife. He is second male child and sixth in the family of eight children. The home village of the father is Chenapelli 25 minutes drive out of Aitape Town in Aitape District but the family are residing here at Airstrip Settlement, Aitape Town. Defendant is a Roman Catholic believer, so as the parents and the family attend St. Joachim Parish Church at Aitape Town for church services.

4. LEGAL CONSIDERATION

The drug offence is very prevalent amongst youth and young men in this community like most communities in PNG. Having consulted the United Nation Charter on juvenile justice and non-custodial measures being general principles embraced in The Beijing Rules 29 November 1985 & The Tokyo Rules 14 December 1990 read in conjunction with the general provisions of the Juvenile Courts Act 1991 sanctioning harsh dealings and sentences by courts to be imposed on juvenile offenders.

5. Although this juvenile can not be sentenced over quantity of drug he has as he is protected, the fact remains is that, juveniles are real problem in communities openly seen dealing with drugs. They know too well what they are doing, many under aged children are smokers, they are drunks, those living on drugs have common characteristics having loose and hungry bums, untidy and aren’t scared of the law in very serious sense of drug issues affecting communities in PNG today and Aitape is one. It is sad to see this, though Juvenile Courts Act intended by Parliament to assist the juveniles, many see it as legal opportunity in protection to enhance drug culture by not respecting the law as more and more are coming before the court for drug and alcohol related offences.

6. Under section 3 (1) (d) of the Dangerous Drugs Act by measure of such drug quantity the offender possess will allow custodial sentence if he is over 18 years.

The provision of section 3 (1) (d) of the Dangerous Drugs Act (Amendment no. 26/1990) stipulates that;

A person who – 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...

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

7. Defendant admitted to the charge but strongly denied that it wasn’t his, he was only keeping it for his Nuku mate who since had left for Nuku. Even when explained drugs found in his possession satisfies the element of the offence in actual possession regardless of who the real owner is and not arrested the offence has been committed when he kept possession of it. Still defendant could not accept that explanation and throughout the proceedings kept repeating his innocence not being the actual owner and insisted the owner must also be arrested and brought before court. Defendant admits he is under aged but drinks alcohol and also smokes.

8. The mother talks well of the child that he is well behaved at home, I observed him to be opposite a very hard child when he kept insisting not being the actual owner of the drug. Since I can not sentence the defendant directly in this offence being a juvenile, I consider he be placed on Good Behaviour Bond without surety for a period of 12 months with steep conditions as measures to behave and change conduct to better his life and to maintain peace and order in the community.

9. SENTENCE

In sentence, all the lay members and parent and relative present have all expressed grave concern that drug is real problem for youth in communities here and so, all wanted defendant to properly be punished as a lesson to himself and others to learn from, but that, since the law can not allow him to be sentenced being under age of 18, orders also should be made to restrict him from associating with his peer group and to also remain in his house from night to dawn and to perform community work to rehabilitate him. Further all wanted he should be prevented from drinking alcohol as he is also under age and conditions should include him attending Sunday Mass service to enrich spiritual growth and development and protection from peer group pressures associating with them and involving in drugs.

10. Having heard the consensus of all members present, I am of the opinion that defendant is almost 18 years and the acceptance of the drug penalty in imprisonment be served and can be applicable when he breaches the conditions of bond or in worse case re-offend in future. Consequently, with reasons stated, and by majority consensus in sentence, the court will place defendant on 12 months bond with steep conditions and ordered that,

Defendant be placed on 12 months Good Behaviour Bond without surety on conditions that:-

a) Whilst on bond Defendant to perform one hour of work every Saturday with church groups to clean St. Joachim Catholic Parish Church and to attend Church Services there every Sunday with his devoted mother.

b) Defendant to remain at home in his house from hours of 6:00pm to 7:00 am every day of the week, Monday to Sunday.

c) Defendant not to associate with or be in company of drunks and smokers, not to drink any alcohol or go near licensed premises and to keep peace while on bond in default be brought back for sentencing.

d) Bond conditions to expire by 02 June 2010.

ORDERS made ACCORDINGLY.
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