Police v Manam [2011] PGDC 30; DC2035 (27 April 2011)

DC2035

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

DCR 347/2011

BETWEEN

POLICE
Informant

AND

ALI MANAM
Defendant

Madang: J.Kaumi
2011:4th, 5th, 8th, 27th April

SUMMARY-Offence of Knowingly in Possession of Illicit Spirits-Distillation 1955 Act Chapter 305, Division 2, General Offences – Section 45 (d) Illicit Stills and Spirits.

PRACTICE AND PROCEDURE- Sentence – Offence of Knowingly in Possession of Illicit Spirits-Distillation 1955 Act Chapter 305, Division 2, General Offences – Section 45 (d) Illicit Stills and Spirits.

PRACTICE AND PROCEDURE- Plea of Guilt- Sentencing is a community responsibility and Courts exercise the people’s power by virtue of section 158(1) of the Constitution - Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency

PRACTICE AND PROCEDURE-Court can use depositions to extract the relevant factors for purposes of sentence

An adult man pleaded guilty to being knowingly in possession of an Illicit Spirit and matter was for sentence.

Held:
(1). As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution. (Saperus Yalibakut v The State (2), (Jalina J; Mogish J Cannings.J)

(2). Whilst the practice in the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing in the National Court.

(3). In appropriate cases the law allows for a first time offender to be a beneficiary of leniency in terms of sentence. The rationale underlining the notion being to avoid running the risk of changing the first time offender into a hardened criminal by imposing a crushing heavier penalty.

Cases cited

Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06
Public Prosecutor v Yapuna Kaso [1977] PNGLR 2009
Public Prosecutor v Tom Ake [1978] PNGLR 471
State v Sabarina Yakal [1988-89] PNGLR 129
State v Michael Kamban Mani (21/05/02 N2246

Legislation

Distillation Act 1955 Chapter 305

Abbreviations

The following abbreviations appear in the judgment
J Justice
K Kina
LBC Lae Builders Company
M Magistrate
N National Court
PNGLR Papua New Guinea Law Reports
PP Public Prosecutor
SCRA Supreme Court Reference
SECT Section
SP South Pacific
ST State
SUP CT Supreme Court
V Verse

Counsel

Senior Constable Mathew Ansini; for the informant
Defendant in person.

INTRODUCTION

1. KAUMI M. You pleaded guilty to a charge of being in possession of an illicit spirit contrary to Section45 (d) of the Distillations Act.

ARRAIGNMENT

2. On arraignment you pleaded guilty to the charge.

3. I entered a provisional plea of Guilty after reading the Statement of facts and confirming them with you I convicted you as charged.

4. As the defendant has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocatus or in submission that are not contested by the prosecution (Saperus Yalibakut v St) ^[1].St v Sabarina Yakal ^[2], P P v Yapuna Kaso ^[3]and P P v Tom Ake ^[4].

THE FACTS

5. On Saturday the 26th March 2011 at about 8:00 pm you walking along the main road at LBC.

6. At this mentioned time you were sighted by a Police motorized patrol unit and at this time you were observed to be staggering while walking and this indicated to the unit that you were drunk.

7. The unit stopped next to you and you were searched and a plastic 500ml coke container containing an illicit spirit namely ‘Yawa’ was discovered in a white roots rice bag which you were carrying.

8. You were observed to be drunk as your breath had a strong smell of liquor and were staggering when walking.

9. You were as a result arrested and charged with unlawful assault, cautioned and your constitutional rights administered to you and allowed K50:00 police bail.

ANTECEDENT REPORT

10. You are aged 26 years and come from Kurti Tereba village, Lorengau District, Manus Province.

11. You are married with one (1) child.

12. You are employed as a Shipping Clerk with the Jant Company here in Madang and earn K190.00 per fortnight.

13. You have no prior convictions.

ALLOCATUS AND SUBMISSIONS

14. When allocatus was administered to you by this Court you said the following:-
a. I am sorry for what I did;
b. I am a married man with a wife and a child to look after;
c. I ask the Court for mercy.

SUBMISSION BY STATE

15. Sen.Const Ansini for the prosecution submitted that the maximum penalty prescribed by sect 45 (D) of the Distillation Act was a fine of K5000:00 for brewing illicit spirits.

THE LAW

16. The defendant was charged with and convicted of being in possession of an illicit spirit contrary to Section45 (d) of the Distillations Act, which states:-

Distillation Act 1955 Chapter 305

Division 2.

General Offences.

Section 45. ILLICIT STILLS AND SPIRITS.

A person who knowingly–

(d) receives, carries, conveys or conceals or has on his premises, or in his custody or under his control, illicit spirits; or

is guilty of an offence.

Penalty: A fine not exceeding K5, 000.00.

ISSUE

17. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentence in your case is.

THE OFFENCE AND SENTENCING TREND

18. This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the judgments and the particular circumstances in which you committed the offence from which come the factors in your aggravation as well as those in your mitigation.

19. Whilst the practice in the District Court as a ‘creature of statute’ has been to adjudicate within the precincts of the empowering legislation, it should also bear in mind and apply where necessary the guidelines used for sentencing in the National Court.

20. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of Two Thousand Five Hundred Kina as a starting point for the offence.

21. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice, His Honor Kandakasi. J’s guidelines on sentencing in St v Michael Kamban Mani ^[5] that:-

(a). The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration;

(b). Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.

(c). The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.

(d). The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.

THE MITIGATING FACTORS

22. At the outset I take into consideration your personal background from your Antecedent Report that you are aged 26 years and come from Kurti Tereba village, Lorengau District, Manus Province and are married with one (1) child. And further that you are employed as shipping clerk by the Jant Company here in Madang and earn K190.00 a fortnight.

23. In addition to your family background, I also take into account in your mitigation first, your plea of guilt. That saved the State the time and expense that would have been incurred in the successful conduct of a trial on the issue of your guilt or innocence. Further, it avoided the need for the victim of your offence to incur further costs and suffer inconveniences by coming into Court and testifying against you.

24. Next you are a first offender in other words you have no prior convictions

25. You have not expressed any remorse for your actions.

26. These are the only three factors that can be said in your favor.

THE AGGRAVATING FACTORS

27. This is a very serious offence as shown by the penalty prescribed by the National Parliament under this section of a fine of up to K5000:00 if for one reason amongst others.

28. It is a very prevalent offence not only in Madang Province but right through out our nation. Its prevalence corroborated by the continued appearance of offenders appearing in court week in week out for illicit spirit offences. Accordingly it is incumbent upon the Courts to impose such sentences that will deter you personally and other like minded persons.

29 .A deterrent penalty must be imposed to highlight the court’s stance against this type of offence and also to send a message out to the community at large that the courts are not going to tolerate this offence any more and that offenders will be penalized.

OTHER RELEVANT CONSIDERATIONS

30. When I consider the extent of the problem of illicit spirits and other factors in your aggravation, the factors in your favor pale into insignificance however I still have sentencing discretion as the penalty clause does not contain a mandatory minimum penalty which would effectively curb any cursory notions of discretion on part of the court without due consideration to certain pre conditions.

31. I note that this is your first ever offence. That means you have not been in trouble with the law before. In appropriate cases the law allows for a first time offender to be a beneficiary of leniency in terms of sentence. The rationale underlining this notion being to avoid running the risk of changing the first time offender into a hardened criminal by imposing a crushing heavier penalty. Hence a lighter sentence would serve as a punishment as well as serve the communities desire to prevent the offender from re-offending.

32. Fortunately for you, you are a first time offender; otherwise a hefty penalty would be imposed against you.

THE SENTENCE

33. You are fined K300:00 in default 3 months imprisonment with hard labour.

34. In the exercise of my sentencing discretion I convert your bail of K300:00 into your court fine of K300:00.

Police Prosecutor: for the State
Defendant in Person

REMARKS

35. The production of illicit spirits is not only illegal but also the product is lethal as no controls are imposed on exactly how it is produced i.e. the quantity of its ingredients, how long fermentation should take place, how long curing should take place etc. This factor is highlighted when we consider the strident requirements imposed by law on SP Brewery in the production of its various products.

36. Certainly the surge in the production of illicit spirits has been reflected in the sales of Ramu sugar but the downside has been the effect of depriving ordinary citizens of this staple when there is a shortfall in its production as evidently seen in recent months. On the other hand the joy of the mothers in Alotau at this shortage of sugar highlighted the effect of illicit spirits in the community. The lethal combination of illicit spirits and marijuana has had devastating effect on the communities through out the length and breath of this nation.

37. An effect of the production and subsequent sale of illicit spirits both in our rural and urban communities has been without doubt the reduction in sales of legally produced spirits and other alcoholic beverages as more and more citizens both male and female in these hard economic times resort to illicit spirits as a means to earn a living and for personal consumption, after all it is cheaper and readily available. It’s rippling effect has been that the retail and wholesale outlets are unable to offload these legally produced alcoholic beverages thru faster sales and SP Brewery unable to meet its monthly sales budgets and as a result unable to pay taxes to the Internal Revenue Commission that would otherwise have been paid had sales not been reduced by the consumption of illicit spirit. This is certainly an affront to SP Brewery as a corporate citizen as it pays hefty fees to be able to produce its alcoholic beverages. I am certainly not advocating SP Brewery but highlighting a financial implication of the production and sale of illicit spirits has on the National Budget.

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^[1] SCRA No 52 of 2005; 27.04.06

^[2] [1988-89] PNGLR 129

^[3] [1977] PNGLR 2009

^[4] [1978] PNGLR 471

^[5] (21/05/02) N2246