Police v Haengre [2011] PGDC 39; DC2028 (19 May 2011)

DC2028

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

DCR 527/2011

BETWEEN

POLICE
Informant

AND

VALENTINE HAENGRE
Defendant

Madang: J.Kaumi
2011:12th, 19th 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 new University graduate pleaded guilty to being knowingly in possession of a dangerous drug, Cannabis Sativa and matter was for sentence.

Held:
(1). 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;

(9). 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).

(11). 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

(12). 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) Bredmeyer.J
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 Kandakasi.J
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 Cannings.J
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J )
Police v Numan Kanai DCR 517/2011

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
DDA Dangerous Drug 1952 Act Chapter 228
GBB Good Behavior Bond
J Justice
M Magistrate
N National
NC National Court
PNGLR Papua New Guinea Law Reports
S C Supreme Court
SCR Supreme Court Reference
SECT Section
CONST Constable
ST State
SECT Section
UNITECH University of Technology
V Versus

Counsel

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

INTRODUCTION

1. Kaumi. M. Valentine Heangre, 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 04th of May 2011, at about 12:30 pm, the defendant now before the Court namely Valentine Heangre was at Kuperu Street in Madang town, Madang Province.

4. On the mentioned date, time and place the duty members of police were on a motorized patrol along Kuperu Street. The defendant was observed acting suspiciously at the odd time of the night so he was stopped to be searched. Upon seeing police, whilst in the process of puffing at a roll of marijuana, he quickly threw it away. Police used a flash light and located the smoke still alight.

5. When asked he admitted having in his possession, so Police put the defendant on the Police patrol unit car and took him to Jomba Police Station. At the Police Station he was formally arrested, cautioned, told of his rights charged and placed in the Police cells.

ANTECEDENTS

6. Your Antecedent Report provided to Court is as follows;

(a) You are 29 years of age and come from Saure village in the Wewak District of the East Sepik Province;

(b) You are a new Agriculture Graduate from the University of Technology and reside at Kuperu Street, Madang.

(c) You are unemployed;

(d) You have no prior convictions.

ALLOCATUS

7. In your address on sentence you stated the followed:

(a) I am a first time offender and secondly I am an Agriculture graduate who recently graduated from the University of Technology, Lae, I am unemployed and want to go back home

(b) I wanted to go home but seeing there are opportunities for me here so I stayed back in Madang to apply for a job but to date have not had any replies from my applications. I sleep outside of the house as a security.

(c) On that night I was standing outside of the gate to the house smoking marijuana to keep me alert. And whilst I was smoking the police caught me.

(d) I am very sorry for what I did and ask for leniency and forgiveness from the Court.

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

SUBMISSION BY STATE

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

(a.) The defendant is a recent graduate from the University of Technology and he should have known better;

(b.) The defendant has no excuse for what he did;

(c.) The defendant as a University should be setting a good example to educate others by not smoking marijuana

OTHER MATTERS OF FACT

10. 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

11. 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

12. 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?
13. 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?

14. 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.

15. In the present case I have been unable to locate a suitable precedent in our jurisdiction 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

16. 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

17. The above statistics do not assist much by way of elaborating 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.

18. In the immediate matter I adopt the sentencing guidelines that I suggested and the reasons for them in Police v Numan Kanai ^[3] in which I followed Kovi v The State ^[4] and State v Micheal Kamban Mani ^[5] and are as follows:-

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?

19. Going by Cannings.J in Raka Benson ^[6] 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 ^[7]

20. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? Yes, there was one roll 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, as he indicated in his allocatus he was very concerned about the future prospects of employment.

(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 tried to avoid detection by the police who were approaching him by throwing away his alit roll of cannabis.

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

(vi). Has the offender genuinely expressed remorse? Yes, his comments expressed were 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? Neutral, there is 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? Yes, the offence only involved one roll of cannabis and the defendant is new Agriculture graduate from Unitech.

(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

21. 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.^[8]

Categorization of the listed considerations

22. 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?

23. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment. State v Inema Yawok ^[9]

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

25. The total potential sentence is three months.

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

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

27. 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.

28. In this matter I ask myself whether the interests of justice would be served if given the trivial circumstances of this matter, the defendant is incarcerated in an overcrowded prison and at far greater financial cost to the State; and secondly, would it be just and fair that a one-off mistake by this new Agriculture graduate from Unitech end in his incarceration with a criminal conviction against his name, having a pernicious effect on his future employment prospects and without giving him a chance to contribute his skills to the development of the agriculture sector of this country? I think not and I refer to sentiments that support my contention that were expressed by the then Chief Justice in Doreen Lipirin v State ^[12], "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"

29. Stern conditions must be imposed for the suspension of a term of imprisonment for two reasons:-

(i) firstly to serve the purposes of retribution, deterrence and rehabilitation of the offender; and

(ii). 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.

30. The head sentence should therefore be suspended in whole but conditionally as the offence involved only one roll of cannabis and cannot be categorized as being in the worst category of cases.

OTHER RELEVANT CONSIDERATIONS

31. 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.

32. 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 ^[13] Bredmeyer. J

33. One way of showing the community's disapproval with the leisure smoking of marijuana for whatever reason 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

34. Valentine Heangre 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] (2006) CR 447&450 Cannings.J
^[3] DCR 517/2011
^[4] [2005] SC 789 (31/05/05) Injia DCJ,Lenalia&Lay JJ
^[5] (21/05/02) N2246 Kandakasi.J
^[6] Supra Note 2
^[7] [1984] PNGLR 206 N478 (M) (2 August 1984) Bredmeyer.J
^[8] Supra Note 2
^[9] [1998] N1766 (16/06/1998) Kirriwom.J
^[10] Supra Note 9
^[11] SC564
^[12] (2004) SC673
^[13] Supra Note 7