Police v Aiye [2011] PGDC 41; DC2034 (27 June 2011)

DC2034

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

DCR 695/2011

BETWEEN

POLICE
Informant

AND

REX AIYE
Defendant

Madang: J.Kaumi
2011 14th, 21st, 27th June

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

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 a dangerous drug, Cannabis 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). Sentencing guidelines are often coined as ‘starting points for various types of cases’. The District Court should apply these starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

(3). The sentencing trends can only be positively identified by observing what sentences courts have imposed and this entails being able to access them through reading the sentencing judgments. It is therefore imperative initially for such judgments to be published by the District Court.

(4). There is a need as well for cases to be published by the District Court 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.

(5). Taking into consideration the defendant’s personal background and his family’s needs, I cannot for obvious reasons accept them as factors in his mitigation or by extension as factors in mitigation of the head sentence because they are a direct result of his actions. We live by the decisions and actions we make in life and this defendant is no exception. The State v Lucas Yovura (Unreported & judgment delivered on 29/04/03) N2366

(6). Drug pushers or sellers are a totally different breed and worst type of offenders from consumers and as such deserve to be treated in a manner befitting their status.

Cases cited

Cheong v Nemil [1981] PNGLR 472 Kearney DCJ
Acting Public Prosecutor v Don Hale SC564
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
State v Michael Kamban Mani (21/05/02) N2246
The State v Lucas Yovura (Unreported & judgment delivered on 29/04/03) N2366
Kovi v The State [2005] SC 789 (31/05/05)Waigani: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 Gideon Francis DCR 513/2011
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
DCJ Deputy Chief Justice
DDA Dangerous Drug 1952 Act Chapter 228
GBB Good Behavior Bond
J Justice
M Magistrate
N National Court
PNGLR Papua New Guinea Law Reports
S Section
S C Supreme Court
SCR Supreme Court Reference
SECT Section
PWC F/C Police Woman Constable First Constable
ST State
V Versus

Counsel

Police Woman Constable First Constable Doreen Able for the Police Prosecution.
Defendant in person.

INTRODUCTION

1. Kaumi. M. Rex Aiye, you will now be sentenced for an offence contrary to Section 3. 1. (d) of the Dangerous Drug Act Chapter 228 ( 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 entered a conviction against you.

FACTS

3. That on Thursday 9th of June 2011, at about 12:35pm, the defendant now before the Court was standing in the front of Good Life Supermarket, Madang town, Madang Province.

4. On the mentioned date, time and place the defendant was sighted carrying a black bag and looked very suspicious.

5. Upon seeing Police approaching him the defendant started to walk away.

6. The Police vehicle stopped and a Policeman went after him and thoroughly searched him and found in his possession two rolls of cannabis wrapped in a newspaper.

7. Police took the defendant to the Police Station where he was cautioned and questioned about the said drugs where he admitted having bought them for his own use and didn’t say anymore.

8. Upon his admission the defendant was then formally arrested, charged, cautioned, told of constitutional rights and detained in the cells.

ANTECEDENTS

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

a. You are a single man from Mele village, Pangia District, Southern Highlands Province.

b. You have no formal employment.

c. You have a prior conviction for fighting in 2011 and were sentenced to 6 months imprisonment with hard labour.

10. Prosecutor First Const Able tendered the marijuana as exhibits after confirming them first with the defendant.

ALLOCATUS

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

(a) Mi nonap giaman lo kot, ol man isalim simuk ia na mi baim lo K10:00 na K20:00;

(b) Mi no tingting lo bagarapim narapla man, mi man blo simuk so mi baim blo mi na ol Polis holim mi long Good Life Supermarket;

(c ) Mi klina blo taun;

(d) Mi sori stret lo ai blo kot long women pasin mi mekim na mi tok stret lo ai blo kot olsem mi nonap lo mekim displa pasin ken;

(e) Papa blo mi em fireman na em bin dai pinis na mama na tupla sista blo mi oli stap lo han blo mi na sapos mi go insaet lo banis bai nogat man bai lukautim family blo mi;

(f). Em festaim blo mi long sanap long ai blo kot;

(g). Mi askim kot long marimari long mi na mi promis long ai blo Papa God na ai blo kot olsem bai mi nonap long wokim displa ken.

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

SUBMISSION BY STATE

13. PWC F/C Able made no submission in response other than to leave the sentence to the sentencing discretion of the court.

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 )

15. The Prosecution Office failed to provide the Court with a Certificate of conviction certifying the defendant’s alleged prior conviction despite being advised by this Court earlier this year to do so every time a prior conviction was alleged against a defendant and therefore going by Saperus Yalibut v The State ^[2] the defendant will be given the benefit of doubt on this issue and be treated as a first offender.

ISSUE

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

DECISION MAKING PROCESS

17. 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?

18. The offender has been found guilty of an offence contrary to sect 3(1) (d) of the Dangerous Drug Act Cht 228.

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?

19. Sentencing guidelines are often coined as ‘starting points for various types of cases’. The Court should apply these starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

20. The District Court has imposed sentences for drug possession contrary to section 3 (1) (d) of the DDA however 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

21. The sentencing trends can only be positively identified by observing what sentences courts have imposed and this entails being able to access them through reading the sentencing judgments. It is therefore imperative initially for such judgments to be published.

22. Therefore to get a gist of the sentencing trend I have conducted a search of publicized decisions on Pacli on sentence for the offence of knowingly in possession of dangerous drugs but only came up with a handful. This relative scarcity of judgments on this aspect of sentencing means that though it is well-published that the incidents of this offence are rife and extensive with prosecutions and resultant sentences imposed by the Courts throughout this nation, they have not been publicized. This absence is not only glaring but also conspicuous despite the good sense and obvious jurisprudential value of them.

23. Section 3 (1) (d) of the DDA prescribes a maximum penalty of two years as the penalty for offenders with a mandatory minimum penalty of three months.

24. From my research the Courts have imposed varying sentences given the difference in the facts of each case and are insufficient to demonstrate any plausible direction of the Courts’ sentencing trend suffice to say that these cases demonstrate that sentences range as low as a non-custodial term to 3 months and as high as the maximum for a worse case category offence.

25. 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.

26. The above statistics provided by Ipang.M (as he then was) 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

27. In my decision in Police v Gideon Francis ^[4] I reviewed the statistics provided by Ipang.M (as he then was ) of four District Courts and their sentencing trends and continue to subscribe to the view that:

“...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”.

28. Obviously hundreds of drug offences have been dealt with by the courts in our jurisdiction and the absence of their publication means there are no suitable precedents. Certainly given the prevalence of this offence it is only logical and proper that there be such publications and their absence flies in the face of the call for and the obvious prudential value of such publications because the consistency and uniformity of sentences can only effectively come about by close examination and scrutiny of them.

29. In the immediate matter I adopt the sentencing guidelines that I suggested and the reasons for them in Police v Numan Kanai ^[5] in which I followed Kovi v The State ^[6] and State v Micheal Kamban ^[7] and are 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?

30. It is trite case law that the employment of judicial discretion in sentencing must follow principles that are settled and as such I adopt the technique used by Cannings.J in Raka Benson ^[8]to highlight the particular circumstances of this case from which will come the aggravating and mitigation factors, a technique which I consider as being not only relevant but also pertinent in giving effect to the guidelines I have suggested above given the want of or absence of relevant guidelines in our jurisdiction

31. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? No, there were K10 and K20 packs of cannabis from which close to 100 rolls/joints of marijuana could be made.

(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, as he indicated in his allocatus that his actions have had an adverse effect on his family..

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, the purchase was pre-mediated and so finding the wholesaler would taken time especially when you consider the movement of the defendant and the brief facts which the defendant has agreed are true, show a degree of cunningness and sly on part of the defendant by his actions of hiding the drugs in newspapers and then in a bag.

(iv). Did the offender give himself up before being detected? No, he was detected by the police who searched him but not before he had tried to escape detection when he became aware of Police surveillance of him.

(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? Neutral, there is no evidence of this before the court.

(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, on this note I firstly refer to The State v Lucas Yovura ^[9] where the Kandakasi.J stated:

"Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender's personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a <sentence> or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate <sentence> for you."

I note the defendant's comments when given the opportunity to address the court on sentence said that his family would suffer if he is further incarcerated as he is the main breadwinner for his mother and two sisters since their father has died and it is implicit from this that they are already suffering by him being currently incarcerated pending sentence in this matter and will undoubtedly suffer in the future if he is further incarcerated. However going by State v Lucas Yovura ^[10]and taking into consideration the defendant's personal background and his family's needs, I cannot for obvious reasons accept them as factors in his mitigation or by extension as factors in mitigation of the head sentence because they are a direct result of his actions. We live by the decisions and actions we make in life and this defendant is no exception.

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

(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

32. 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. ^[11]

33. In furtherance to (vii) and (viii) it should be noted that not only might ordinary mitigating factors be given less weight than special mitigating factors but then they must be weighed against the circumstances peculiar to a case and this involves considering the gravity of the offence, it prevalence, the time of committing of offence and its maximum penalty. The aggregate result of this juggling act of judicial discretion is a sentence that befits the crime.

34. The above comments on mitigating factors are also applicable in the context of aggravating factors.

35. Obviously going by the above principles a person convicted in a trial of having 10kg of marijuana should be treated differently from a casual user of the drug who pleads guilty to knowingly possessing one half smoked roll or joint of marijuana.

Categorization of the listed considerations

36. 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?

37. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment. State v Inema Yawok ^[12]

38. After weighing all these factors and bearing in mind that there are three mitigating factors compared to nine aggravating factors and two neutral factors, the defendant's case in my view can be categorized in the third category of possession of drug. This means therefore that his sentence has to be anything between 7 and 12 months. Therefore going by State v Inema Yawok ^[13]the head sentence should be an increase on the starting point and its starting point is 12 months.

39. The total potential sentence is twelve months.

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

40. 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.

41. In Acting Public Prosecutor v. Don Hale ^[14], 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".

42. One matter I find particularly abstruse about this defendant was his statement at the outset of his allocatus that the K10:00 and K20:00 packs of marijuana he had purchased were for his personal consumption as he was a smoker. This begs the obvious question as to why he would need to close to 100 rolls for a smoke at a time, I daresay certainly not for his leisure smoking as 1 roll of marijuana is quite sufficient to achieve a 'high' or a feeling of euphoria and we are not dealing with a roll of 'Spear' or a Dunhill cigarette. Yet this defendant had the audacity to suggest that he purchased a large quantity of drugs to smoke. His comment I consider was designed purposely for this court to treat him not as a pusher but just as a smoker, obviously the word has trickled thru the grapevine that this Court treats drug pushers more severely than users or smokers and this defendant has craftily tailored his allocatus to suit his ends to be a beneficiary of this Court's sentencing attitude towards users. Fortunately he is not going to achieve this today as he will be treated with the status of a pusher and face the consequences that flow from such a categorization.

43. Having categorized this defendant as a drug pusher I gain valuable assistance from the National Court case of Cheong v Nemil ^[15] where his Honour Kearney DCJ held:

"In sentencing for drug offences, a clear distinction should be made between persons engaged in drug trafficking and consumers, including addicts; for all traffickers, including youthful first offenders, the punishment should be particularly severe; for users, a substantial fine with imprisonment in default may often be adequate for first offenders".

44. Drug pushers or sellers are a totally different breed and worst type of offenders from consumers and as such deserve to be treated in a manner befitting their status and I certainly subscribe to this view that has been stated by the courts and this defendant being no different will be treated as such.

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

46. I have stated in previous cases involving this offence and continue to subscribe to the view that:

"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".

47. The head sentence should not be suspended in whole or in part as the offence involved K10:00 and K20:00 packs of cannabis which was destined for sale by the defendant fortunately he was apprehended by alert law enforcement agents.

SENTENCE

48. Rex Aiye having been found guilty of knowingly being in possession of a dangerous drug, Cannabis, you are sentenced in the following manner:

(a.) You are sentenced to twelve months imprisonment;

(b). I order that you serve that sentence in hard labor at the Beon Correction Institution. A warrant of commitment in those terms shall issue forthwith.

Police Prosecution for the State
Defendant in Person

---

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

^[2] Supra Note 1

^[3] (2006) CR 447&450 Cannings.J

^[4] DCR 513/2011

^[5] DCR 517/2011

^[6] [2005] SC 789 (31/05/05)Waigani:Injia DCJ,Lenalia&Lay JJ

^[7] (21/05/02) N2246

^[8] Supra Note 3

^[9] (Unreported & judgment delivered on 29/04/03) N2366

^[10] Supra Note 9

^[11] Supra Note 3

^[12] [1998] N1766 (16/06/1998) Kirriwom.J

^[13] Supra Note 12

^[14] SC564

^[15] [1981] PNGLR 472 Kearney DCJ