Police v Francis [2011] PGDC 34; DC2020 (17 May 2011)

DC2020

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

DCR 513/2011

BETWEEN

POLICE
Informant

AND

GIDEON FRANCIS
Defendant

Madang: J.Kaumi
2011: 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.

A youth 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

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
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 34/2011

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
CHT Chapter
DCA District Courts Act
DDA Dangerous Drug 1952 Act Chapter 228
J Justice
M Magistrate
NC National Court
PNGLR Papua New Guinea Law Reports
S C Supreme Court
SCR Supreme Court Reference
SECT Section
CONST Constable
ST State
SUBS Subsection
V Versus

Counsel
Constable Wanai for the Police Prosecution.
Defendant in person.

INTRODUCTION

1. Kaumi. M. Gideon Francis, 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 and proceeded to enter a conviction against you.

FACTS

3. That on the 06th of May 2011, at about 1:10pm, the defendant now before the Court namely Gideon Francis was at the J & Z Supermarket in Madang town, Madang Province.

4. On the mentioned date, time and place the defendant was sighted standing with other youths in front of J & Z Supermarket. The groups of youth were asked to stop by the Police Patrolling unit, search was conducted and the said defendant was carrying 38 rolls of Dangerous drugs namely, Cannabis/Marijuana rolled in white colored paper, and sold on the streets for K1.00/roll, packed in red plastic paper.

5. Upon searching the defendant, Police confiscated 38 rolls of one kina packed marijuana from the defendant's pocket. So Police put the defendant on the Police patrol unit car and took him to Jomba Police Station.

6. Defendant was questioned in relation to the drugs, and he admitted so, by saying as quote; "Mi kisim smoke long ol mangi because mi laik salim na lukautim mi na mama blong mi,because papa blong mi dai pinis." Defendant was put into the Police vehicle and taken to the Police Station.

7. At the Police Station he where he was formally cautioned, formally charged, informed of Constitutional rights under Section 42(2) and was detained in the cell.

ANTECEDENTS

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

a. You are an unemployed youth, single, 19 years of age and of mixed parentage Numba/Lumi,Goroka/ Aitape, Eastern Highlands and West Sepik Province and reside at RD Tuna Cannery Settlement, North Coat Rd, Madang.

ALLOCATUS

9. In your address on sentence you stated the followed, "Mi askim marimari long yupela man meri blo kot, mi askim long probation or Good Behaviour Bond, em tasol".

SUBMISSION BY STATE

10. Const Wanai made a verbal submission and a paraphrased summary of his response follows:-

(a.) The offence of selling marijuana was prevalent amongst the youth of Madang Province;

(b.) That sect 200 sub 3 ( Hereinafter referred to as Subs) of the District Court Act (Hereinafter referred to as DCA) provides that the provision for mitigation of payment by Court under subsection 2 is not applicable in the case of an offence for which a minimum sentence of imprisonment is prescribed;

(c.) That Sect 200 sub sect 3 overrides sect 132 so as to prohibit the Court from imposing any other sentence than that of imprisonment;

(d.) There is an increase in number of persons suffering from mental illnesses brought on by the abuse of dangerous drugs like marijuana in the urban and rural areas of this province and many who are frequenting Madang town everyday;

(e.) Therefore the above reasons there is a definite need for a deterrent sentence to deter other like-minded persons in the community.

OTHER MATTERS OF FACT

11. 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

12. 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

13. Pursuant to submission by Constable Wanai the preliminary 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? If the answer is No, then the magistrate cannot use the discretionary dispositive powers available under Sect 132 (1). If the answer is Yes, then the magistrate can proceed to the decision making process to arrive at a sentence that is fair and just based on the peculiar merits of the case.

14. In answer to the question I adopt my comments in Police v Nathan Casper Aulem ^[2] where I had earlier held an affirmative view to the question and stated 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".

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

DECISION MAKING PROCESS

16. 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?

17. 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?

18. 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.

19. In the present case 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

20. 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

21. I am grateful to Ipang.M (as he then was) for the data he collated however with due respect as enlightening as these statistics might appear to be they fail to set out guidelines 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.

22. There is a need as well for cases to be published so the sentences and guidelines can be reviewed by the courts to assess the effectiveness of current sentences to see whether they are relevant to the ever increasing magnitude and sophistication of crimes of this nature today, and more importantly whether there is a need for an increase in sentencing.

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 am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice for sentencing guidelines, His Honor Kandakasi. J's guidelines on sentencing in St v Michael Kamban Mani ^[4] that the maximum prescribed penalty should not be readily imposed. Secondly, guilty pleas, and the offender being a first time younger offender and the existence of such good factors operate in the offender's mitigation and sentences lower than the prescribed maximum may be imposed. Thirdly, 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 and fourthly, 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 offence is not lower than these imposed for the less serious offences.

25. I reiterate here that this country has seen a great proliferation of crimes of this nature so courts must be prepared where necessary to increase sentence in direct correlation to the increase in the magnitude and sophistication of crimes of this nature today.

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?

26. Going by Cannings.J in Raka Benson ^[5] 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 ^[6]

27. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? No, there were 38 rolls of cannabis.

(ii). Did the offender's actions have only a small adverse effect on other persons eg: the members of his family and his community? No, his sales would have an adverse effect on a larger community.

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, the sale of marijuana is pre-mediated and involves elements of cunning and deceit and as a result takes time.

(iv). Did the offender give himself up before being detected? No, he was with two youths when detected by the police who approached his group, searched them and the drugs discovered in his possession.

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

(vi). Has the offender genuinely expressed remorse? No, his comments were all self centered and he never any expressed genuine remorse when given the opportunity to do so.

(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? Neutral, there is no evidence of whether or not 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? Yes, his mother will miss obviously suffer hardship as a result of his action.

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

(xii). Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? No, the defendant told Police that he was selling to support his mother because his father was dead and this excuse he gave seems to be used by like defendants when caught.

(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

28. 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.

29. 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

30. 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 14 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?

31. 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 ^[7] 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.

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

33. After weighing all these factors and bearing in mind that there are five mitigating factors compared to eight aggravating factors and one neutral factor, and going by State v Inema Yawok ^[8] and the fact that he had 38 rolls of marijuana for sale in his possession when he was apprehended, the head sentence should be 6 months.

34. The total potential sentence is six months.

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

35. In consideration of the afore sentencing principles this is not appropriate case in which to consider a suspended sentence.

36. In Acting Public Prosecutor v. Don Hale ^[9], 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 ""...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".

37. The head sentence should not be suspended in whole or in part as the offence involved 38 rolls of cannabis however it cannot be categorized as being in the worst category of cases.

OTHER RELEVANT CONSIDERATIONS

38. Every national man, woman and child in this country have land in their villages and the defendant in this matter is no different, as a matter of fact he has the added benefit of two homes by virtue of his mixed parentage, Goroka and Lumi and so if his mother and him are finding life in Madang Province difficult they should go to either of these two homes, till the soil and earn a honest living. The excuse given by the defendant is appreciated but not accepted by this court.

39. I consider the fact that you were selling marijuana in front of the J & Z Supermarket in full view of the public and in broad daylight a show of the contempt you had for the law and this is a serious aggravating factor.

40. It is the conduct of persons like the defendant who are brazenly selling marijuana on the streets in the cities and towns and in the villages that is contributing to marijuana induced crimes that interfere with the rights of peace loving and law abiding citizens of this country and non citizens alike and you must be punished as a personal deterrence to you and also as a general deterrence to others who might be like minded.

41. One way of deterring drug pushers is to mete out deterrent sentences 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

42. Gideon Francis 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 six months imprisonment with hard labour;

Police Prosecution for the State
Defendant in Person

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

^[2] DCR 374

^[3] (2006) CR 447&450

^[4] (21/05/02) N2246

^[5] Supra Note 3

^[6] [1984] PNGLR 206 N478 (M) (2 August 1984)

^[7] [1998] N1766 (16/06/1998) Kirriwom.J

^[8] Supra Note 7

^[9] Sc 564