Police v Nanai [2011] PGDC 35; DC2021 (17 May 2011)

DC2021

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

DCR 517/2011

BETWEEN

POLICE
Informant

AND

NUMAN KANAI
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- Sentence – 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- 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-Court can use depositions to extract the relevant factors for purposes of sentence

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

Held:
(1).There is a need as well for cases in our jurisdiction 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.

(2). The use of a tariff has its limitations because the determination of appropriate punishment in each case is an exercise of discretion having regard to seriousness of the offence, the gravity of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purposes. Supreme Court in Kovi v The State [2005] (31/05/05) Injia DCJ, Lenalia & Lay JJ

(3). However sentencing tariffs provide a useful guide in the exercise of sentencing discretion in particular types of cases and Courts must be encouraged to develop them. Kovi v The State [2005] (31/05/05) Injia DCJ, Lenalia & Lay JJ (emphasis mine)

(4). Bearing in mind the said guidelines in these Supreme and National Court cases and in the absence of assistance from our jurisdiction in terms of providing a guideline for sentencing in these types of cases I find it necessary to suggest some guidelines and do as follows:-

(a). After confirming the guilt of a defendant, either on a plea or after a trial, the Court should consider sentence with the maximum prescribed penalty in mind first;

(b). Then the defendant must be allowed to make out a case for a lesser sentence in allocatus; (A defendant could easily do that by pointing out to the factors in his mitigation with appropriate evidence where evidence is required)

(c). Once the defendant has been able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. (At this stage, the categorization of the kind of offence under consideration could become relevant and useful)

With these qualifications in mind then the following be applied:-

(a). In an uncontested case with ordinary mitigating factors and no aggravating factors and if any two of the seven factors in section 132 (1) are present i.e. student with no priors, 1 to 10 rolls, a starting point of three months and suspension of the said term pursuant to section 132 (1);

(b). In a contested or uncontested case, with mitigating and aggravating factors, 1 up to 70 rolls of cannabis sativa, drug pusher, repeat offender a sentence of 3-8 months imprisonment with no suspension;

( c). In a contested case or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by gravity of the offence, drug pusher, repeat offender and possession of 70 to 150 rolls 7-18 months imprisonment;

(d). In contested or uncontested cases, the imposition of severe punishment or the maximum of 2 years imprisonment should be reserved for the worst case of its kind such as the blatant attempt to illegally traffic large quantities of cannabis in a transnational situation, repeat offender with history of selling large quantities of cannabis or a drug lord etc.

(e). The quantity of drugs should not be the only factor relied upon to determine sentence but should be considered with other factors as well.

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 Jason Dungoia [13/12/00] N2038
State v Michael Kamban Mani (21/05/02) N2246
Doreen Lipirin vs. The State [2004] SC673
Kovi v The State [2005] SC 789 (31/05/05) Injia DCJ,Lenalia&Lay JJ
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 Reuben Meut DCR 1022 & 1023/2009
Police v Benard Kwari DCR 1254/2009
Police v Big Joe & Shein Kimba DCR 959 & 960/2010
Police v Nathan Casper Aulem DCR 374/2011
Police v Pedro Tobby DCR 443/2011
Police v Gideon Francis DCR 513/2011

Reference

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

Legislation

Constitution of PNG
Dangerous Drug Act Chapter 228

Abbreviations

The following abbreviations appear in the judgment
CHT Chapter
DCA District Courts Act
DCJ Deputy Chief Justice
DDA Dangerous Drug 1952 Act Chapter 228
GBB Good Behavior Bond
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
& And

Counsel

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

INTRODUCTION

1. Kaumi. M. Numan Kanai, 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 Saturday 7th of May 2011, at around 4:40pm, the defendant now before the Court namely Numan Kanai was walking on a street in Madang town, Madang Province;

4. On the mentioned date, time and place the defendant was sighted by the Police Patrol Unit;

5. The defendant appeared to be suspicious to the Police personal;

6. Police stopped the defendant and searched him;

7. Upon searching the defendant, Police found in his possession ten (10) small rolls of cannabis and some loose cannabis all packed in a yellow empty magi noodle plastic bag at his back trousers pocket.

8. So Police put the defendant on the Police patrol unit car and took him to Jomba Police Station where he was further questioned in regard to the drugs thereafter admitting that he got the cannabis from one of the drug dealers for smoking purposes.

9. Upon his confession the defendant was formally arrested, cautioned and charged for being in possession of a dangerous drug, informed of his constitutional rights and placed in the cells.

ANTECEDENTS

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

a. You are a 30 year old man from Joydick village, Sumkar District, Madang Province.

b. You are a single man and have no formal employment.

c. You reside at Joydick village and have no prior convictions.

ALLOCATUS

11. In your address on sentence you stated the following:

(a) Mi askim long marimari blo kot;

12. I take into consideration these above matters when I deliberate your sentence

SUBMISSION BY STATE

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

(a.) The conveying, selling and consumption of dangerous drugs in the urban and rural areas of this province was frequently happening and prosecution records show that dangerous drug offenders appear in court every working day of the week;

(b.) There was a need for a deterrent penalty to send a message to the community at large that it was unlawful to deal in dangerous drugs and that offenders would be punished.

OTHER MATTERS OF FACT

14. 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

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

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 ^[2] 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. In my decision in Police v Gideon Francis ^[3] I reviewed the statistics provided by Ipang.M (as he then was ) of four District Courts and their sentencing trends, observed and said as follows:-

"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 do not 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.

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".

22. The Supreme Court's discussion on sentencing tariffs in Kovi v The State ^[4] stated that the use of a tariff had its limitations because the determination of appropriate punishment in each case is an exercise of discretion having regard to seriousness of the offence, the gravity of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purposes.

23. It added however that sentencing tariffs provide a useful guide in the exercise of sentencing discretion in particular types of cases and Courts must be encouraged to develop them. In developing tariffs, Courts must bear in mind that it is not a mathematical exercise involving technical classification of some broad circumstances of the offence and then fixing a mathematical figure besides them. It is an exercise of judicial discretion and care must be taken to develop them for the future use of Courts". (emphasis mine)

22. Therefore in the absence of such sentencing guidelines in our jurisdiction I am inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice for sentencing, the guidelines in the Supreme Court case of Kovi v The State ^[5] and His Honor Kandakasi. J's guidelines on sentencing in St v Michael Kamban Mani ^[6] the latter of which I have done in a number of my cases i.e. Police v Reuben Meut ^[7], Police v Benard Kwari ^[8], Police v Big Joe & Shein Kimba ^[9], Police v Nathan Casper Aulem ^[10] and Police v Pedro Tobby ^[11] to name a few.

23. Bearing in mind the said guidelines in these Supreme and National Court cases and in the absence of assistance from our jurisdiction in terms of providing a guideline for sentencing in these types of cases I consider it necessary to suggest some guidelines and I do so as follows:-

(a).After confirming the guilt of a defendant, either on a plea or after a trial, the Court should consider sentence with the maximum prescribed penalty in mind first;

(b). Then the defendant must be allowed to make out a case for a lesser sentence in allocatus; (A defendant could easily do that by pointing out to the factors in his mitigation with appropriate evidence where evidence is required)

(c). Once the defendant has been able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. (At this stage, the categorization of the kind of offence under consideration could become relevant and useful)

24. With these qualifications in mind then the following be applied:-

(a). In an uncontested case with ordinary mitigating factors and no aggravating factors and if any two of the seven factors in section 132 (1) are present i.e. student with no priors, 1 to 10 rolls, a starting point of three months and suspension of the said term pursuant to section 132 (1);

(b). In a contested or uncontested case, with mitigating and aggravating factors, 1 up to 70 rolls of cannabis sativa, drug pusher, repeat offender a sentence of 3-8 months imprisonment with no suspension;

( c). In a contested case or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by gravity of the offence, drug pusher, repeat offender and possession of 70 to 150 rolls 7-18 months imprisonment;

(d). In contested or uncontested cases, the imposition of severe punishment or the maximum of 2 years imprisonment should be reserved for the worst case of its kind such as the blatant attempt to illegally traffic large quantities of cannabis in a transnational situation, repeat offender with history of selling large quantities of cannabis or a drug lord etc.

(e). The quantity of drugs should not be the only factor relied upon to determine sentence but should be considered with other factors as well.

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 ^[12] I have adopted his technique which I consider not only relevant but also pertinent in that it gives effect to the guidelines I have suggested above 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 ^[13]

26. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? No, there were ten rolls of cannabis plus some loose 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? Neutral, no evidence of this.

(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 alert law enforcement agents.

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

(vi). Has the offender genuinely expressed remorse? No, his expression of remorse was not genuine.

(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? Neutral, no evidence of this.

(xi). Can the defendant be regarded as a youthful offender? No, he can be regarded as an adult offender.

(xii). Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? No, as it can be reasonably inferred from the fact that the defendant was caught with ten rolls of cannabis in his trousers pocket plus some unrolled cannabis that he was in the process of selling them.

(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. The rational behind the above considerations is as follows:-

(i). an affirmative (yes) answer = mitigating factor;

(ii). a negative (no) answer = an aggravating factor;

(iii). a neutral answer = be a neutral factor;

(iv). more mitigating factors = likely reduction of head sentence;

(v). more aggravating factors = likely lifting of head sentence above starting point.

(vi). sentencing is not an exact science rather it is a discretionary process;

(vii). Mitigating factors may be mild or strong and weighed accordingly;

(viii). Aggravating factors may be mild or strong and weighed accordingly. The St v Raka Benson ^[14]

Categorization of the listed considerations

28. 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?

29. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment. State v Inema Yawok ^[15]

30. After weighing all these factors and bearing in mind that there are four mitigating factors compared to seven aggravating factors and three neutral factors and going by State v Inema Yawok ^[16] the head sentence should be the starting point of 3 months.

31. The total potential sentence is three months.

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

32. In consideration of whether or not all or part of the head sentence should be suspended I consider some principles of sentencing that are relevant to this issue in the following paragraphs.

33. In Acting Public Prosecutor v. Don Hale ^[17], 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".

34. Kandakasi.J in St v Jason Dungoia (18) stated that "The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her".

35. To suit the purposes of retribution and rehabilitation sentences should not be too lenient so as to firstly cause a disservice to the community by failing to deter such offenders and secondly to not adequately correspond to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.

36. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation.

37. The prevalence of this offence in Madang and throughout PNG is strong aggravating factor.

38. The courts must rise to the occasion and in the context of the sharp increase in drug offences one way of arresting the scourge of marijuana 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.

39. Section 132 subsection (1) is a provision gives a District Court magistrate discretionary dispositive powers where a person is charged with a simple offence, and if the charge is proven in certain circumstances, without proceeding to conviction, to dismiss the charge or give a conditional discharge;

40. I do not invoke the discretionary dispositive powers of a District Court available to me under section 132 (1) of the District Courts Act in this matter given the peculiar circumstances of this matter.

41. The head sentence should not be suspended in whole or in part as the offence involved a ten rolls of cannabis which was destined for consumption thru sale by the defendant as the reason he gave to Police for having the drugs in his possession was self-serving and there was no genuineness in his expression of remorse although this offence cannot be categorized as being in the worst type category.

42. One way of instilling respect for others 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

43. Numan Kanai 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;

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] (2006) CR 447&450

^[3] DCR 513/2011

^[4] [2005] SC 789 (31/05/05) Injia DCJ,Lenalia&Lay JJ

^[5] Supra Note 4

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

^[7] DCR 1022 & 1023/2009

^[8] DCR 1254/2009

^[9] DCR 959 & 960/2010

^[10] DCR 374/2011

^[11] DCR 443/2011

^[12] . Supra Note 2

^[13] [1984] PNGLR 206 N478 (M) (2 August 1984)

^[14] [1998] N1766 (16/06/1998) Kirriwom.J

^[15] Supra Note 14

^[16] SC564

^[17] [13/12/00] N2038