Police v Memson No. 2 [2011] PGDC 42; DC2032 (8 July 2011)

DC2032

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

DCR 468/2011

BETWEEN

POLICE
Informant

AND

GABRIEL MEMSON No.2
Defendant

Madang: J. Kaumi
2011: 8th JULY

SENTENCE

CRIMINAL LAW-Summary offence-Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d)- Offence of Knowingly in Possession of Dangerous Drugs- Defendant convicted after Trial-Manner and Place of Concealment of Dangerous drug evidence of a deliberate and pre-mediated, cunning plan of deceit to avoid detection-Is this a strong aggravating factor?

CRIMINAL LAW-: Sentence -Sentencing Guidelines discussed – mandatory minimum penalty of 3 months imprisonment – starting point - relevant considerations are identified and considered

CRIMINAL LAW- : Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration.

CRIMINAL LAW- : It is incumbent on criminal sentencing courts to exercise the people’s power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

The defendant was convicted of knowingly being in possession of dangerous drug after a trial. There was evidence that the defendant had, prior to having discovered the dangerous drug in the pocket of a bag he was carrying at the material time, been searched with the same bag a few months earlier. The defence that he raised at the trial of lack of knowledge was not made out and rejected.

Held
(1).Courts in our jurisdiction have imposed sentences for drug possession contrary to section 3 (1) (d) of the Dangerous Drug Act upon conviction after trial 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 then consider all mitigating and aggravating circumstances. State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J

(2). 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. State v Lucas Yovura (Unreported & judgment delivered on 29/04/03) N2366

CASES CITED

Acting Public Prosecutor v Don Hale Sc 564
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
The State v Irox Winston (21/09/00) N2304
State v Jason Dungoia (13/12/00) N2038
State v Michael Kamban Mani (21/05/02) N2246
The State v Lucas Yovura (Unreported & judgment delivered on 29/04/03 N2366
Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730
Kovi v The State [2005] SC 789 (31/05/05) Waigani: Injia DCJ, Lenalia &Lay JJ
The State v Daniel (No 2) [2005]\ N2890 (8/09/05)
The State v Raka Benson (2006) CR 447&450
Police v Numan Kanai DCR 517/2011
Police v Gabriel Memson No.1 DCR 468/2011
Police v Rex Aiye DCR 695/2011

Legislation

Constitution of PNG
Dangerous Drug Act

Abbreviations

The following abbreviations appear in the judgment
CR Criminal
DCJ Deputy Chief Justice
DCR District Court Report
DDA Dangerous Drug Act
DODL Division of Distance Learning
J Justice
M Magistrate
N National Court
NGO Non Government Organization
NO Number
PICD People In Community Development
SC Supreme Court
SCR Supreme Court Reference
S Section
V versus

Counsel

Police Woman Constable First Constable Doreen Able, for the Police
Defendant in person

SENTENCE

INTRODUCTION

1. Kaumi M: This is a decision on sentence for a man convicted of knowingly being in possession of a dangerous drug without authority.

BACKGROUND

2. The defendant Gabriel Memson was convicted on 1st July 2011 of knowingly being in possession of a dangerous drug, to wit, marijuana, contrary to Section 3 (1) (d) of the Dangerous Drug Act. The offence was committed at Mildas Market on the morning of 29th April 2011 at around 7:00am. That morning the defendant was sitting with a group of youths inside the market area when a Police officer, Senior Constable Mape saw them and walked over to them to enquire what they were doing. As the officer approached this group of youths this defendant got his bag and tried to walk away from the group and his actions aroused the suspicions of the officer, so he asked the defendant to hand over his bag and when it was checked, marijuana seeds and bits of marijuana leaves were discovered inside a pocket of this bag. The defendant was noted to smell strongly of marijuana and with red eyes, indicative signs of consumption of marijuana so the defendant was strongly suspected of owning the drugs found and arrested. He was aged 28years at the time of the offence. Further details of the circumstances in which the offence was committed are set out in the judgment on verdict (The Police v Gabriel Memson No.1) ^[1]

RELEVANT LAW

3. The defendant was charged with and convicted of being knowingly in possession of a dangerous drug with authority under Section 3(1)(d) of the Dangerous Drug Act 1952 Chapter 228, which states:-

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.

ANTECEDENTS

4. The antecedents of the defendant are as follows:-

(i). The defendant is a single man of 28 years;

(ii). He comes from Kambot village in the Angoram District of the East Sepik Province;

(iii). He is employed as an Assistant Data officer with an NGO, PICD and earns K300:00 a fortnight and resides at Wagol Settlement;

(iv). He is a first time offender in other words he does not have any prior convictions.

ALLOCATUS

5. I administered allocatus to the defendant and the following is what he said,:-

(i). I accept the decision of the court;

(ii). I am sorry for what I did;

(iii). I have spent 3 months in custody;

(iv). I ask for the leniency of the court and ask for Probation or a Good Behaviour Bond;

(v). I have two little sisters whom I look after as my parents are both dead;

(vi). I am still completing my DODL course at the University Centre here in Madang.

SUBMISSIONS

6. There was no submission on sentence other than to leave the sentence to the discretion of the court by the Police Prosecutor.

ISSUE

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

THE OFFENCE AND SENTENCING TREND.

8. I have stated in a number of cases and continue to subscribe to certain views firstly, that there is a need 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; and secondly that I have been unable to ascertain from the above cases a guideline as to what appropriate considerations should be taken on board in arriving at these sentences for this type of offence as there is need for such guidelines for purposes of uniformity and consistency of sentence.

9. I am therefore inclined to go higher for guidance and analogy and in doing so am indebted to His Honor Cannings. J’s guidelines on sentencing in The St v Daniel (No.2) ^[2] and in State v Raka Benson ^[3] of which I use parts of because of the deficiency in our jurisdiction of a suitable precedent and they can be summarized as follows,

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?

10. The penalty prescribed by section 3(i) (d) of the DDA is imprisonment for a term of not less than three months and not exceeding two years.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. Courts in our jurisdiction have imposed sentences for drug possession contrary to section 3 (1) (d) of the DDA upon conviction after trial 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 JUDGMENTS FOR THIS TYPE OF OFFENCE?
SENTENCING TRENDS

12. 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.

SENTENCING GUIDELINES

13. In the immediate matter I adopt the sentencing guideline that I suggested and the reasons for it in Police v Numan Kanai ^[4] in which I followed Kovi v The State ^[5] and State v Michael Kamban ^[6] and particularly at paragraph 24 (b) as follows:-

“(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”;

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?

14. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? Yes.

(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? No, as he indicated in his evidence in chief allocatus and that he worked with youths some of whom he was with at the material time and who no doubt would be affected by his actions as their leader and that he had two sisters who were totally dependant on him for their sustenance as their parents had both died...

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, I find from the circumstances of the case that the manner and place in which the marijuana was positioned amongst school books inferable that it was a deliberate, calculated a pre-mediated, cunning plan of deceit calculated to throw any inquirer off track at the first sight of the school books. In other words an inquirer would think at first glance that the defendant was an innocent student.

(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 other than what he says to be employed by PICD.

(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 three 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 ^[7] 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 your family has no place. If at all, that plea has little or no weight in determining an appropriate <sentence> for you."

I adopt my comments I made in Police v Rex Aiye DCR 695/2011 ^[8] involving similar circumstances to the immediate matter:

"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 two younger sisters since their both parents have 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

15. 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. ^[9]

16. I adopt my comments I made in Police v Rex Aiye ^[10]:

"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.

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

17. Obviously going by the above principles a person convicted in a trial of having in his possession marijuana seeds and leaves should be treated differently from a casual user of the drug who pleads guilty to knowingly possessing one half smoked roll or a joint of marijuana. I also consider the manner and place in which the dangerous drug was concealed obviously to avoid detection to be a strong aggravating factor.

Categorization of the listed considerations

18. 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?

19. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment. State v Inema Yawok ^[11]

20. After weighing all these factors and bearing in mind that there are four mitigating factors compared to eight aggravating factors and two neutral factors, the defendant's case in my view can be categorized in the second category of possession of drug. This means therefore that his sentence has to be anything between 3 and 8 months. Therefore going by State v Inema Yawok ^[12] the head sentence should be the starting point and its starting point is 3 months.

21. The total potential sentence is three months.

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

22. 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.

23. There are sufficient Supreme and National Court authorities that provide that not only is sentencing a community responsibility but that it is incumbent upon the sentencing Courts in discharging this duty when exercising this people's power to reflect their attitude towards a particular offence and impose a sentence that is correspondent to it. Acting Public Prosecutor v Don Hale ^[13] Sc 564, The State v Irox Winston ^[14] (21/09/00) N2304, State v Jason Dungoia ^[15] (13/12/00) N2038, Edmund Gima v The State & Siune Arnold v The State ^[16] (03/10/03) SC730

24. 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.

25. 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."

26. The Defendant exercised his constitutional right to run a trial i.e. he pleaded not guilty and was convicted after that trial so the Police and the Court were put to the time and expense in conducting a trial on the issue of his innocence or guilt with the calling of a relevant witness to also bear the inconvenience of testifying against him in order to establish his guilt and so as a consequence any mitigation factors such as admission and remorse have limited application and as such he loses the advantage of a discount on sentence that the defendant pleading guilty would otherwise be entitled to. Acting Public Prosecutor v Don Hale ^[19]

27. The head sentence should therefore not be suspended in whole or in part as the offence involved a conviction after trial for possession of marijuana seeds and leaves and is serious enough to be categorized in the second category.

SENTENCE

28. Gabriel Memson having been found guilty of knowingly being in possession of a dangerous drug, Marijuana, you are sentenced in the following manner:

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

( b). I further order that 2 months 8 days you spent in custody be deducted from the head sentence;

(c). You are to serve a period of 23 days imprisonment;

(b). I order that you serve that sentence in hard labor at the Beon Corrective Institution;

(e). A warrant of commitment in those terms shall issue forthwith.

Police Prosecutions for the Police
Defendant in person

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^[1] DCR 468/2011

^[2] [2005] N2890 (8/09/05)

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

^[4] Police v Numan Kanai DCR 517/2011

^[5] [2005] SC 789 (31/05/05)

^[6] (21/05/02) N2246 Kandakasi.J

^[7] (Unreported & judgment delivered on 29/04/03) N2366

^[8] DCR 695 /2011

^[9] Supra Note 3

^[10] Supra Note 8

^[11] [1998] N1766 (16/06/1998 Kirriwom.J

^[12] Supra Note 11

^[13] SC564

^[14] (13/12/00) N2304

^[15] (13/10/03) N2038

^[16] (03/10/03) SC 780

^[17] Supra Note 13

^[18] Supra Note 15

^[19] Supra Note 13