Police v Tobby [2011] PGDC 33; DC2019 (17 May 2011)

DC2019

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

DCR 443/2011

BETWEEN

POLICE
Informant

AND

PEDRO TOBBY
Defendant

Madang: J.Kaumi
2011: 28th April, 05th, 10th, 17th May

SUMMARY-Offence of Knowingly in Possession of Dangerous Drugs-Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d).

PRACTICE AND PROCEDURE-Knowingly Possessing Dangerous Drug-Mandatory Minimum Penalty-Three months-Whether statutory powers of discretionary disposition available under District Courts Act 1963 Cht 40, Section 132 (1)-Dangerous Drugs Act,1952, Cht 224-Power to give alternative penalty not excluded.

PRACTICE AND PROCEDURE-Mandatory Minimum Penalty of Three Months, Section 3 (1) (d) Dangerous Drug Act-No discretion to impose lesser sentence-But court has discretionary dispositive power to suspend all or part of the Minimum sentence and then give alternative penalty-Section 132 (1) District Courts Act, Cht 40.

PRACTICE AND PROCEDURE- Sections 132 (1) and 200 (3) are complimentary in nature and of mutual benefit-District Courts Act, Cht.40.

PRACTICE AND PROCEDURE- There are seven factors in Section.132 (1), one or more of which must be established before the court can impose the punishment provided by that section. These factors are Character, Antecedents, Age, Health, Mental Health, Trivial Nature and Extenuating Circumstances-District Courts Act 1963 Cht 40

A youthful student pleaded guilty to being knowingly in possession of a dangerous drug, Cannabis Sativa and matter was for sentence.

Held:
(1).The words of sect 200 (3) "such as by their necessity do not import a contradiction" of the earlier sect 132 (1) and corollary do not make the discretionary dispositive powers of a sentencing magistrate under sect 132 (1) unavailable when contemplating sentence under sect 3 (1) (d).

(2).A mandatory minimum penalty does not deprive a District Court of its discretionary dispositive powers given by sect 132 (1) and its application is permissible if the court does not proceed to the stage of conviction when contemplating sentence for drug offenders under sect 3 (1) (d) of the DDA, Cht No.228.

(3).That the minimum penalty does not deprive the Court of its power to give just and fair consideration to each case on its own merits and impose sentence as the justice of the case requires but not below the minimum. State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J

(4). That there are seven factors in sect.138 (predecessor to sect.132 (1), one or more of which must be established before the court can impose the punishment provided by that section. These factors are Character, Antecedents, Age, Health, Mental Health, Trivial Nature and Extenuating Circumstances. Nup v Hambuga [1984]PNGLR 206 N478(M) (2 August 1984) Bredmeyer. J

Cases cited
Nup v Hambuga [1984] PNGLR 206 N478(M) (2 August 1984)
Acting Public Prosecutor v Don Hale Sc 564
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
State v Michael Kamban Mani (21/05/02) N2246
Doreen Lipirin vs. The State (2004) SC673
The State v Raka Benson (2006) CR 447&450
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J )
Police v Nathan Casper Aulem DCR 374/2011

Reference
'Sentences passed on Dangerous Drug Offenders', Magistrates Bi-Annual Judicial Conference in Lae, May 2009, Martin Ipang

Legislation

Constitution of PNG
District Court Act, Chapter 40
Dangerous Drug Act Chapter 228

Abbreviations

The following abbreviations appear in the judgment
CBC Community Based Corrections
CHT Chapter
DCA District Courts Act
DDA Dangerous Drug 1952 Act Chapter 228
GBB Good Behavior Bond
J Justice
M Magistrate
NC National Court
PNGLR Papua New Guinea Law Reports
PSR Pre Sentence Report
S C Supreme Court
SCR Supreme Court Reference
SECT Section
SEN.CONST Senior Constable
ST State
SUBS Subsection
V Versus

Counsel
Senior Constable Watakapura for the Police Prosecution.
Defendant in person.

INTRODUCTION

1. Kaumi. M. Pedro Tobby, you will now be sentenced for an offence contrary to Section 3. 1. (d) of the Dangerous Drug Act ( Hereinafter referred to as DDA)
ARRAIGNMENT

2. When I arraigned you, you pleaded guilty and after confirming the brief facts with you I found you guilty as charged but did not proceed to enter a conviction against you.

FACTS

3. That on the 20th of April 2011, at around 3pm, the defendant now before the Court namely Pedro Tobby aged 20 years of Yalubang Village, Morobe Province at Didibal Cres, Newtown, Madang Province.

4. Police whilst was on a patrol received a report of drunkards drinking and smashing bottles on the road along Tarangau St and Didibal Cres, Newtown.

5. Upon the information received Police proceeded to the mentioned locations and sighted the said defendant namely Pedro Tobby and his other accomplices namely Hendry Terry Ali looked very drunk, standing on the road with a half bottle of SP Brown beer.

6. Upon sighting them, police stopped and searched them. During the search, Police confiscated one half consumed SP beer bottle and a sharp screw driver from his other accomplices, whilst on the defendant Police found four rolls of dangerous drugs namely cannabis in his trouser pocket.

7. They were also observed and clearly intoxicated with liquor as their breath and body smell of strong alcohol.

8. The defendant and his accomplices were then taken to Jomba Police Station. At the station they were questioned about the alleged offences of being drunk, in possession of dangerous drugs namely cannabis and possession of offensive weapon, and admitted to the offences. They were formally arrested and charged, informed of their Constitutional rights under section 42 (2) and appearing before the court.

ANTECEDENTS
9. Your Antecedent Report provided to Court is as follows;-

(i). Defendant Pedro Tobby 20 years of Yalubang village, Nawae Dist, Morobe Province;

(ii). You are a student at Talidig Vocational School and reside at Didibal Cres;

(iii). You have no prior convictions.

10. On the basis that the defendant is a student I am directing the Community Based Corrections Office (Hereinafter referred to as CBC) in Madang to furnish a Pre-Sentence Report (Hereinafter referred to as PSR) to court and which I will refer to in the course of my judgment.

ALLOCATUS

11. In your address on sentence you stated the followed:-"My student ID card was confiscated by Mr. Obert Lim of the Police Task Force and I ask that they be given to Court, that's all".

SUBMISSION BY STATE

12. Sen Const Watakapura made a lengthy verbal submission and a paraphrased summary of his response follows:

(a.) The charge for which the defendant had pleaded guilty to is section 3 (1) (d) of the Dangerous Drug Act;

(b.) I have read the PSR and agreed with most parts of it except paragraphs 1-11;

(c.) However under section 16 of the Probation Act, probation does not apply to mandatory minimum penalty offences and furthermore section 200 (3) of the District Courts Act does not allow the imposition of any other penalty other then the mandatory minimum penalty;

(d.) The conveying, selling and consumption of dangerous drugs in the urban and rural areas of this province was prevalent especially amongst the youth;

(e.) That for the above reasons the penalty as prescribed under section3 (1) (d) should be imposed as a deterrent;

OTHER MATTERS OF FACT

13. 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 ^[1], (Jalina J; Mogish J Cannings.J )

ISSUE

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

Preliminary issue

15. Sen.Const Watakapura raises a preliminary issue in his response on sentence and so the question to be asked is, "Are the discretionary dispositive powers of a sentencing magistrate under Sect 132 (1) not available to due to the operation of Sect 200 subs (3) of the DCA?

16. In answer to the question I adopt my comments in Police v Nathan Casper Aulem ^[2] where I held that:-

"The words of sect 200 (3) "such as by their necessity do not import a contradiction" of the earlier sect 132 (1) and corollary do not make the discretionary dispositive powers of a sentencing magistrate under sect 132 (1) unavailable when contemplating sentence under sect 3 (1) (d).

A mandatory minimum penalty does not deprive a District Court of its discretionary dispositive powers given by sect 132 (1) and its application is permissible if the court does not proceed to the stage of conviction when contemplating sentence for drug offenders under sect 3 (1) (d) of the DDA, Cht No.228".

17. I now proceed to address the main issue and that is what the appropriate sentence in this matter is.

DECISION MAKING PROCESS

18. To determine the appropriate sentence I will adopt Canning's. J's decision making process in The St v Raka Benson ^[3] and that is;-

Step 1: what is the maximum penalty prescribed by Parliament?

Step 2: what is a proper starting point?

Step 3: what are the type of sentencing guidelines and trends per judgments for this type of offence?

Step 4: what are the particular circumstances in which you committed this offence from which come the factors in your aggravation as well as those in your mitigation?

Step 5: what is the starting point for the Head sentence for the offence?

Step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY PRESCRIBED BY PARLIAMENT?

19. The offender has been found guilty of an offence contrary to sect 3(1) (d) of the Dangerous Drug Act.

Section 3. PRODUCTION, ETC., OF DANGEROUS DRUGS.

(1) A person who knowingly–

(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.

STEP 2: WHAT IS THE PROPER STARTING POINT?

20. Sentencing guidelines are handed down by the Supreme Court occasionally whilst in the process of deliberating the on criminal appeals or reviews. These guidelines are often coined as a starting point for various types of cases. The National Court then applies those starting point in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances.

21. In our jurisdiction I have been unable to locate a suitable precedent so I will use the mandatory minimum penalty of 3 months as the starting point for the offence.

STEP 3: WHAT ARE THE TYPE OF SENTENCING GUIDELINES AND TRENDS PER JUDGEMENT FOR THIS TYPE OF OFFENCE?

SENTENCING TRENDS

22. Ipang.M (as he then was) in his paper 'Sentences passed on Dangerous Drug Offenders' which he presented at the Magistrates Bi-Annual Judicial Conference in Lae in May 2009 obtained statistics from three District Courts for the period 2005 to 2009 and that of the Madang District Court in 2009 which show that the sentencing trend has been more towards imprisonment with a total of 222. This has been followed by Community work with 30, Fines with 14, Probation with 12, Discharge with 6 and GBB with 4.

SENTENCING GUIDELINES

23. I was unable to ascertain from the above cases a guideline as to what are appropriate considerations to be taken on board in arriving at these sentences for this type of offence and there is need for such guidelines for purposes of uniformity and consistency of sentence.

24. I refer to and adopt my comments in Police v Nathan Casper Aulem ^[4] –

"45... I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice two National Court sentencing guidelines, firstly, His Honor Bredmeyer. J's guidelines on sentencing in Nup v Hambuga ^[5] where he held that section 138 (predecessor to section 132 (1) remains open to the District Court despite the minimum penalties legislation. By way of contrast sect.206 of the DCA, another mitigating section, by express amendment does not apply to minimum penalties: see District Courts (Amendment) Act No. 34 of 1983.That there are seven factors in sect.138 one or more of which must be established before the court can impose the punishment provided by that section. These factors are Character, Antecedents, Age, Health, Mental Health, Trivial Nature and Extenuating Circumstances.

46. Secondly, His Honor Kandakasi. J's guidelines on sentencing in St v Michael Kamban Mani ^[6] 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".

STEP 4: WHAT ARE THE PARTICULAR CIRCUMSTANCES IN WHICH YOU COMMITED THE OFFENCE FROM WHICH COME THE FACTORS IN YOUR AGGRAVATION AS WELL AS THOSE IN YOUR MITIGATION?

25. Going by Cannings.J in Raka Benson ^[7] I have adopted his technique which I consider not only relevant but also pertinent given the lack or absence of relevant guidelines in our jurisdiction and apply to them the seven factors outlined by Bredmeyer.J in Nup v Hambuga ^[8]

26. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? Yes, there were four rolls of cannabis.

(ii). Did the offender's actions have only a small adverse effect on other persons e.g.: the members of his family and his community? Yes, he was obviously a casual user of cannabis as the only four rolls in his possession were for his own use and could not have had a big effect on his immediate family.

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? Yes, the offence took place over a short period.

(iv). Did the offender give himself up before being detected? No, he was caught by the police after receiving a report.

(v). Has the defendant pleaded guilty? Yes, he pleaded guilty

(vi). Has the offender genuinely expressed remorse? Yes, his comments when arraigned were truthful and not evasive and he accepted full responsibility for his actions.

(vii). Is this the defendant's first offence? Yes.

(viii). Has the defendant been a good member of his school and the community in which he lives? Yes, he is a good member of his community.

(ix). Is the defendant a person of good health both physically and mentally? Yes, he was of good health both physically and mentally when he appeared in court on all five occasions.

(x). Has the offender and his family already paid a heavy price for his actions? Neutral, there is no evidence of whether or not his family or him have already paid a heavy price.

(xi). Can the defendant be regarded as a youthful offender? Yes.

(xii). Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? Yes, the defendant is a young student and not a harden criminal.

(xiii). Is this offence not a prevalent one? No, it is a prevalent one

(xiv). Do these types of offences not have an adverse effect on the community at large? No, they do have an adverse effect on the community at large.

Rationale
27. His Honor Cannings.J' rational behind the above considerations was that they had been framed so that an affirmative (yes) answer to anyone be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will; be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point.

28. His Honor stated however that sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors maybe strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors.

Categorization of the listed considerations

29. There are three sorts of considerations listed:

(a). Numbers 1 to 3 focuses on the circumstances of the possession of the cannabis.

(b). Number 4 to 7 focus on what the offender has done since he committed the crime and how he has conducted himself.

(c). Number 8 to 12 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

STEP 5: WHAT IS THE STARTING POINT FOR THE HEAD SENTENCE FOR THE OFFENCE?

30. The nature of the sentence for the offence for which the defendant has been found guilty is a mandatory minimum one and for analogy I find assistance for a starting point for such an offence in the National Court matter of State v Inema Yawok ^[9] where Kirriwom.J in sentencing the accused who pleaded guilty to the charge of escaping from lawful custody contrary to s.139 of the Criminal Code Act ( a mandatory minimum penalty offence of five years imprisonment)stated inter alia that the minimum penalty does not deprive the Court of its power to give just and fair consideration to each case on its own merits and impose sentence as the justice of the case requires but not below the minimum.

31. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment.

32. After weighing all these factors and bearing in mind that there are ten mitigating factors compared to three aggravating factors and one neutral factor, and going by State v Inema Yawok ^[10], the head sentence should be the starting point of 3 months.

33. The total potential sentence is three months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

34. In consideration of the afore sentencing principles this is an appropriate case in which to consider a suspended sentence.

35. In Acting Public Prosecutor v. Don Hale ^[11], the S C said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The S C in that case said ""If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19....The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people". To this end I have received a well documented PSR prepared by Mr. Logan Sapush of CBC, Madang and thank him for it however cannot consider probation as a sentencing option because of the operation of sect.16 of the Probation Act but have viewed all its inputs which I consider very informative insofar as the personal background of the defendant is concerned.

36. I adopt my comments in Police v Nathan Casper Aulem ^[12]:

"58. It is incumbent upon courts today in the light of stretched national resources i.e finance, overcrowded prisons etc that in appropriate cases to consider sentencing options other than imprisonment and I refer to sentiments that support my contention that were expressed by the then Chief Justice in Doreen Lipirin v State ^[13], "I do believe the court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment."

"The converse implications of a sentence of imprisonment are whilst the immediate effects are that of deprivation of liberty ...the cost to the state and the community will exceed considerably the amount of money misappropriated. It would be no benefit to the society .The purpose of punishment can as easily be obtained in alternate orders to imprisonment .The offender is no threat to society"

59. That the offender might consider a suspension of any sentence a softer option and not remember that he has been found guilty of a criminal offence of knowingly being in possession of a dangerous drug and it is essential that the sentencing court impose a stiff head sentence then suspend wholly or in part, of course sanctioned with conditions if for two reasons, firstly to serve the purposes of retribution, deterrence and rehabilitation of the offender and secondly to ensure strict compliance by the offender with all such conditions that are imposed for the suspension as the imposition of no conditions might ensure the unfaithfulness of the offender".

37. The head sentence should therefore be suspended in whole but conditionally as the offence involved the possession of four roll of cannabis by a misguided youthful student and cannot be categorized as being in the worst category of cases.

OTHER RELEVANT CONSIDERATIONS

38. One way of showing the community's disapproval of the leisure consumption of marijuana is to mete out deterrent sentences and in consideration of the defendant's antecedents and the circumstances of this particular matter demand that this Court exercise the people's sentencing power vested in it by the Constitution and impose a sentence that is in touch with their aspirations and attitudes.

SENTENCE

39. Pedro Tobby having been found guilty of knowingly being in possession of a dangerous drug, Cannabis Sativa, you are sentenced in the following manner:

(a.) You are sentenced to three months imprisonment with hard labour;

(b.) The whole of the term of imprisonment is suspended on the following conditions:-

(i) Defendant is to enter into a recognizance to be of good behavior for twelve (12) months and to appear for conviction and sentence when called on at anytime during such period;

(ii) Defendant is to perform community work as directed and supervised by Senior Sergeant Gage Dumok, Staff Officer to the Provincial Police Commander of Madang Province;

(iii) Defendant is to refrain from consuming, conveying or selling cannabis sativa during the period of his recognizance.

Police Prosecution for the State
Defendant in Person

---

^[1] SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J

^[2] DCR 374/2011

^[3] (2006) CR 447&450

^[4] Supra Note 2

^[5] [1984] PNGLR 206 N478 (M) (2 August 1984)

^[6] (21/05/02) N2246

^[7] Supra Note 3

^[8] Supra Note 5

^[9] [1998] N1766 (16/06/1998) Kirriwom.J

^[10] Supra Note 9

^[11] Sc 564

^[12] Supra Note 2

^[13] (2004) SC673