Police v Sebi [2011] PGDC 45; DC2033 (14 July 2011)

DC2033

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

DCR 803-807/2011

BETWEEN

POLICE
Informant

AND

KONI SEBI, FABIAN SIMON, NICK SAGOS DAWA, TONY WALTER & SEBASTIAN ARNOLD
Defendant

Madang: J.Kaumi
2011: 14th July

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-Mandatory Minimum Penalty of Three Months, Section 3 (1) (d) Dangerous Drug Act-Court to impose the minimum and then suspend or go higher as the justice of the case requires.

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-Appropriate sentence for Drug pushers as opposed to consumers.

PRACTICE AND PROCEDURE-Plea of guilty-Statement in allocatus substantially different to plea and depositions.

PRACTICE AND PROCEDURE-Pleas-Pleas of Guilty-Circumstances when plea of guilt may be rejected allowing for plea of not guilty to be substituted-Power to substitute plea after allocatus but before sentence

PRACTICE AND PROCEDURE-Disqualification-Grounds for perception of bias-Impartiality to be preserved-Preconceived views of evidence formed-Criminal trial-Magistrate disqualifying self-Trial before different magistrate required.

Five men charged with being knowingly in possession of a dangerous drug, Cannabis. One pleaded not guilty. Four pleaded guilty. Two made comments in allocatus substantially different to their guilty pleas. Two matters only were for sentence.

Held:
(1). The court has power to change a plea of guilty after the plea is confirmed and the allocatus administered but before sentence is passed;. The State v Joe Ivoro & Gemora Yavura [1980] PNGLR 1

(2). A plea of guilty may be changed where circumstances indicate that:

a. the accused had not really pleaded guilty;

b. there was a mistake on the part of the accused;

c. there is a clear defence to the charge; The State v Joe Ivoro & Gemora Yavura [1980] PNGLR 1

(3). The reasons for my reading of the summary of facts which give effect to section 37(1) of the Constitution (the full protection of the law) are twofold and are as follows:-

(a). that there was enough evidence on the face of the summary of all elements of the charge;

(b). that there were no reasonable defences available to the defendants that may have been overlooked. The State v Yaulipa Bulaim (1980) N234 and The State v Peter Sari [1990] PNGLR 48

(4). It is a well established practice in this country that where courts vacate a plea of guilty, occasioned by such circumstances as outlined in The State v Joe Ivoro & Gemora Yavura and substitute a plea of not guilty;

(5). The chances of any perceptions of bias are negated by the case proceeding before another judge. The State v Peter Sari [1990] PNGLR 48, Dinge Damane v The State [1991] PNGLR 244.

(6).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

(7).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

The State v Joe Ivoro & Gemora Yavura [1980] PNGLR 1
The State v Yaulipa Bulaim [1980] N234
Cheong v Nemil [1981] PNGLR 472 Honour Kearney DCJ
Gabriel Laku v The State [1981] PNGLR 350
The State v Peter Sari [1990] PNGLR 48
Dinge Damane v The State [1991] PNGLR 424
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
Yani v The State [1999] SC 615(25 June 1999) Kapi DCJ, Sheehan, Kirriwom JJ
State v Tepoi [1999] N1941] (8 October 1999)
Acting Public Prosecutor v Don Hale SC564
State v Jason Dungoia (13/12/00) N2038
State v Michael Kamban Mani (21/05/02) N2246
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
Police v Ronald Bunap DCR 544/2011
Police v Rex Aiye DCR 695/2011
Police v Bala Saol DCR 688/2011
Police v Weiman Marley DCR 793/2011

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

DCR District Criminal
DDA Dangerous Drug 1952 Act Chapter 228
DCJ Deputy Chief Justice
GGB Good Behavior Bond
J Justice
M Magistrate
N National Court
PNGLR Papua New Guinea Law Reports
PWC F/C Police Woman Constable First Constable
S Section
S C Supreme Court
SCR Supreme Court Reference
ST State
SUBS Subsection
V Versus

Counsel

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

INTRODUCTION

1. Kaumi.M. This is a summary criminal case involving five defendants of which one pleaded not guilty, four pleaded guilty of which the guilty pleas of two were later vacated and pleas of not guilty substituted. The five defendants faced the following information:

"Koni Sebi, Fabian Simon, Nick Sagos Dawa, Tony Walter and Sebastian Arnold stand charged that they each and severally had in their possession to wit rolls of dangerous drugs namely cannabis (marijuana) without authorization under the Schedule of the Dangerous Drug Act or regulation made there under".

The information was presented pursuant to section 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.

BACKGROUND

2. To gain a better understanding and appreciation of the manner of the proceedings in this matter it is necessary for me at this juncture to set out in chronological order the events that transpired in the District Court.

3.On 14th July 2011 upon arraignment four of the defendants, Koni Sebi, Fabian Simon, Nick Sagos Dawa and Sebastian Arnold pleaded guilty to a charge of knowingly being in possession of a dangerous drug under s.3(1)(d) of the DDA.

4. I entered provisional pleas of guilt against the four defendants.

5. Having satisfied myself upon reading of the summary of facts and after confirming them with the defendants that there was enough evidence to support their respective pleas of guilt, I entered convictions against the four defendants as charged. The reasons for my reading of the summary of facts which give effect to section 37(1) of the Constitution (the full protection of the law) are twofold and are as follows:-

(a). that there was enough evidence on the face of the summary of all elements of the charge;

(b). that there were no reasonable defences available to the defendants that may have been overlooked. The State v Yaulipa Bulaim ^[1] and The State v Peter Sari ^[2]

6. The defendant Tony Walter upon arraignment pleaded not guilty and so I pre-trialed his matter and set his trial to 25th August 2011 at 9:00am.

7. The prosecutor tendered the exhibits after first confirming with the four defendants first and then after invitation by the court provided to it the antecedents of the four defendants.

8. I administered their rights of allocatus, that is to allow them the opportunity to address the court on the issue of sentence of which they exercised their rights and it was in this administration that I noted substantial differences in the statements given by two of the four defendants that went to the very essence of the charge, disputing the element of possession under s.3 (1) (d) of the DDA.

PRELIMINARY ISSUE

9. The preliminary issue that arises here is whether this court can vacate the respective pleas of guilt and substitute a not guilty plea.

RELEVANT LAW

10. The principle applicable to the issue of whether or not a court can vacate a plea of guilt and substitute a not guilty plea is well settled in this country as set out in the case of The State v Joe Ivoro & Gemora Yavura ^[3]and followed in a number of subsequent cases like Gabriel Laku v The State ^[4], The State v Sari ^[5], Dinge Damane v The State ^[6], State v Tepol ^[7], Yani v The State ^[8] Kapi DCJ Sheehan Kirriwom JJ and therefore I will only reaffirm, restate and apply them with only cursory discussion as follows:-

1. The court has power to change a plea of guilty after the plea is confirmed and the allocatus administered but before sentence is passed;

2.A plea of guilty may be changed where circumstances indicate that:

a. the accused had not really pleaded guilty;

b. there was a mistake on the part of the accused;

c. there is a clear defence to the charge;

3. Where a plea of guilty has been changed to a plea of not guilty, the court should not as a matter of course proceed to find an alternative verdict if the depositions support that alternative offence: to do so would be equivalent to finding the accused not guilty of the offence charged without the issue being tried according to law as required by section 578 of the Criminal Code;

4.Where a plea of guilty has been changed to a plea of not guilty the proper procedure to be adopted is to ascertain whether the State wishes to proceed with the charge, or, to consent to a plea on a lesser or alternative charge which is supported by the evidence.

5. A judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he is not unprejudiced or impartial".

PRESENT CASE
11. After due consideration of the events that transpired I immediately decided to vacate the guilty pleas and subsequent convictions of defendant Nick Sagos Dawa and Sebastian Arnold, pre-trialed their matters and set them for trial on the 25th August 2011 at 9:00am with Tony Walter.

12. Further I decided to disqualify myself from hearing the matter to avoid a possible apprehension of bias against the defendants as I had already read the summary of facts and proceeded to convict their co-defendants. It is a well established practice in this country that where courts vacate a plea of guilty, occasioned by such circumstances as outlined in The State v Joe Ivoro & Gemora Yavura ^[9] and substitute a plea of not guilty, the chances of any perceptions of bias are negated by the case proceeding before another magistrate. The State v Peter Sari ^[10], Dinge Damane v The State ^[11].

FACTS

13. That on Friday 8th of July 2011, at around 3:30pm, the defendants now before the Court namely Koni Sebi, Fabian Simon, Nick Sagos Dawa, Tony Walter and Sebastian Arnold were at the old coffee plantation at Siar, Madang Province.

14. On the mentioned date, time and place the defendants were sitting underneath a tree inside the old coffee plantation which is opposite the RD Tuna Factory market. A Police Patrol Unit was informed that there were people smoking drugs there and so they stopped to check out the report and the defendants were rounded up by the policemen and searched.

15. In the process of searching each of the defendants the police officers discovered that Koni Sebi had 53 rolls of marijuana plus other pieces of the same dangerous drug wrapped in a newspaper, Fabian Simon had 9 rolls of marijuana in his left shirt pocket, Nick Sagos Dawa had 1 roll of marijuana in his front trousers pocket, Tony Walter with 16 rolls of marijuana in a 1kg roots rice packet and finally Sebastian Arnold had 1 roll of marijuana in the back right pocket of his black jeans trousers.

16. That the defendant Koni Sebi was a drug dealer who sold the marijuana to each of the defendants prior to the arrival of the police officers at the scene.

17. The defendants were all apprehended and taken to the Police Station where they were all formally cautioned, arrested and charged. They were informed of their Constitutional rights and later placed in the cell.

ANTECEDENTS

18. The Antecedent Reports of defendants Koni Sebi and Fabian Simon as provided to Court are as follows;-

(a). Koni Sebi is a thirty year old single man from Kananam village, unemployed, has no prior convictions and resides at Siar village, Madang;

(b). Fabian Simon is a twenty year old single man from Siar village, unemployed, has no prior convictions and resides at Siar village.

ALLOCATUS

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

(a) Koni Sebi-"I am a seller of marijuana and not a smoker";

(b) Fabian Simon-"I only sell marijuana and do not smoke it and that's how I survive.

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

SUBMISSION BY STATE

21. 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

22. 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 ^[12] (Jalina J; Mogish J Cannings.J )

ISSUE

23. 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

24. To determine the appropriate sentence I will adopt Canning's. J's decision making process in The St v Raka Benson ^[13] 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?

25. The offenders have 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?

26. 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

27. In Police v Rex Aiye ^[14] I stated and adopt those comments regarding sentencing trends:-

"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".

28. The handful of published cases I have been able to access show that the Courts have imposed varying sentences given the difference in the facts of each case. 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.

29. The above statistics provided by Ipang.M (as he then was) from three District Court magistrates in one town 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. 'Sentences passed on Dangerous Drug Offenders'

SENTENCING GUIDELINES

30. I have stated in a number of cases and continue to subscribe to the certain view that:-

"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.

I was unable to ascertain from the above cases a guideline as to what are appropriate considerations to be taken on board in arriving at these sentences for this type of offence and there is need for such guidelines for purposes of uniformity and consistency of sentence".

31. In Police v Bala Saol ^[15] I adopted the dicta in Kovi v The State ^[16] regarding sentencing trends and which is applicable to the circumstances of this matter:-

"25. Having alluded to the above comments I also bear in mind that the determination of appropriate punishment for a particular case is an exercise of judicial discretion, the process involving the consideration of such factors as:-

(i). the seriousness of the offence;

(ii). the gravity or otherwise of the offence;

(iii).the personal circumstances of the defendant which aggravate or mitigate the punishment;

(iv). the interests of the community in ensuring the punishment achieves its purposes

and thereby curtailing the use of a tariff." Kovi v The State

32. In the immediate matter I adopt the sentencing guidelines that I suggested and the reasons for them in Police v Numan Kanai ^[17] in which I followed Kovi v The State ^[18] and State v Michael Kamban Mani ^[19] particularly at paragraph 24 (b) and (d) which are 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;

(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?

33. Going by Cannings.J in Raka Benson ^[20] 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 it in this matter.

34. These considerations are as follows:

Considerations

(a). Koni Sebi

(i). Was only a small amount of dangerous drug involved? No, there were 53 rolls of cannabis.

(ii). Did the offender's actions have only a small adverse effect on other persons eg: the members of his family and his community? No, as he indicated in his allocatus that he was a seller or a drug pusher and at the material time he had sold drugs to people from his community just prior to the intervention by Police and this has had a big adverse effect on these people.

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, the offence involved a pre-mediated and cunning plan to sell cannabis and did not take place over a short period.

(iv). Did the offender give himself up before being detected? No, he was observed by people who informed Police personal who in turn apprehended 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 for his actions 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? No, the defendant in his allocatus that he was drug pusher in other words selling marijuana to people in his community and his involvement in this illegal trade is evidence that he is not 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.

(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? No, the defendant stated in his allocates that he was a seller of marijuana.

(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.

(b). Fabian Simon

(i). Was only a small amount of dangerous drug involved? No, there were 9 rolls of cannabis.

(ii). Did the offender's actions have only a small adverse effect on other persons eg: the members of his family and his community? No, as he indicated in his allocatus that his 'survival' was dependant on his sales of marijuana.

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, the offence involved a pre-mediated and cunning plan to sell cannabis and did not take place over a short period.

(iv). Did the offender give himself up before being detected? No, he was apprehended by alert Police personal after they were informed by members of the public and searched and discovered the drugs in his possession.

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

(vi). Has the offender genuinely expressed remorse? No, his comments were all self centered and he never any expressed genuine remorse for his actions when given the opportunity to do so. He was unrepentant about his marijuana selling activities and he unashamedly talked with pride about it

(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? No, the reason the defendant gave in his allocatus to justify his illegal activity of selling marijuana to people in his community is evidence that he is not 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.

(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? Yes, he can be regarded as a youthful offender.

(xii). Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? No, the defendant stated in his allocatus that he was a seller or pusher of marijuana.

(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
35. 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 ^[21]

36. I adopt my comments I made in Police v Rex Aiye ^[22]:

"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"

Categorization of the listed considerations

37. 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?

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

KONI SEBI

39. After weighing all these factors and bearing in mind that there are three mitigating factors compared to ten aggravating factors, and one neutral factor and going by State v Inema Yawok ^[24] and the fact that the defendant is a marijuana seller and had 53 rolls in his possession, the circumstances of this matter indicate that it comes within the second category the head sentence should be the starting point of 8 months.

40. The fact that this defendant was an unashamed seller of marijuana as he told the court in his allocatus and had sold marijuana to persons at the material time is in my view a strong aggravating factor and going by Kovi v The State ^[25] I see no plausible reason why I should not deviate from the range of this tariff given the enormity of the problem of this offence in the country and consequentially am prepared to move vertical with his sentence.

41. The total potential sentence is ten months.

FABIAN SIMON

42. After weighing all these factors and bearing in mind that there are four mitigating factors compared to nine aggravating factors, and one neutral factor and for the fact that this defendant was a marijuana seller who had 9 rolls of the dangerous drug at the material time and going by State v Inema Yawok ^[26], the circumstances of this matter dictate that it comes within the second category the head sentence should be the starting point of 6 months.

43. The total potential sentence is six months.

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

44. 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.

45. In Acting Public Prosecutor v. Don Hale ^[27], 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".

46.Kandakasi.J in St v Jason Dungoia ^[28] 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".

47. 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.

48. In the National Court case of Cheong v Nemil ^[29] 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".

49. With respect to Fabian Simon I adopt my comments I made Police v Weiman Marley ^[30] paragraphs 37,38 and 39 which I consider pertinent in this matter as this defendant is the same age the defendant in that matter and also for the reason that I consider this offence to be serious for the above factors:-

"37. I am conscious of the fact that the defendant is a youthful offender but on the same token equally cognizant of my duty to protect the community. One way to protect the community and stamp out crime is to impose imprisonment. Defendants' rights are enshrined in the Constitution of this country and enforced when they are infringed upon as is expected, this however begs the question, where does this leave the victims, this latter category must also be protected as they also have constitutionally guaranteed rights and this can be achieved thru imprisonment.

38. The responsibility that goes with the unenviable task of sentencing a youthful offender to prison for the first time is grave and onerous and one I am only too conscious of.

39. I am also conscious of the fact that the imprisonment of the category of defendants this defendant finds himself in has not in itself deterred its occurrence nor prevalence nevertheless the cogent fact that the fear of imprisonment or its severity will undoubtedly have a desired deterrent effect on this defendant and other likeminded persons is a factor that I bear in mind".

50. In highlighting the nationwide problem of drug abuse and its consequences I refer to and adopt my comments in Police v Ronald Bunap ^[31] at paragraphs 34, 35 and 36 as follows:

"34. The abuse and prevalence of cannabis in the communities of Papua New Guinea (both urban and rural), leave neither unscathed in its wake as it wrecks its havoc upon innocent citizens and non-citizens alike when abused by the youth of this nation giving a whole new meaning to the word 'intoxication', therefore it is incumbent upon the courts to react in kind.

35. 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.

36. 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".

51. The increase of this type of offence all over this country can only mean one thing and that is that the courts must react in kind.

52. 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;

53. However in the circumstances of this matter I find no plausible reason why I should invoke the discretionary dispositive powers of a District Court available to me under section 132 (1) of the District Courts Act in respect of Fabian Simon.

54. 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.

55. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation in respect of both defendants.

56. The respective head sentences for both defendants should therefore not be suspended in whole or in part as the offences are of a serious nature.

SENTENCE

57. Koni Sebi having been found guilty of knowingly being in possession of a dangerous drug, Cannabis, without authority, you are sentenced in the following manner:

(a.) You are sentenced to ten 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.

58. Fabian Simon having been found guilty of knowingly being in possession of a dangerous drug, Cannabis, without authority, you are sentenced in the following manner:

(a.) You are sentenced to six 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

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^[1] The State v Yaulipa Bulaim [1980] N234

^[2] The State v Peter Sari [1990] PNGLR 48

^[3] The State v Joe Ivoro & Gemora Yavura [1980] PNGLR 1

^[4] Gabriel Laku v The State [1981] PNGLR 350

^[5] Supra Note 2

^[6] Dinge Damane v The State [1991] PNGLR 424

^[7] . State v Tepoi [1991] N1941] (8 October 19999)

^[8] Yani v The State [1999] SC 615(25 June 1999) Kapi DCJ, Sheehan, Kirriwom JJ

^[9] Supra Note 3

^[10] Supra Note 2

^[11] Supra Note 6

^[12] . SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J

^[13] (2006) CR 447 7 450 Cannings.J

^[14] DCR 695/2011

^[15] DCR 688/2011

^[16] [2005] SC 789 (31/05/05)Waigani:Injia DCJ,Lenalia&Lay JJ

^[17] DCR 517/2011

^[18] Supra Note 16

^[19] (21/05/02) N2246

^[20] Supra Note 13

^[21] Supra Note 13

^[22] Supra Note 14

^[23] [1998] N1766 (16/06/1998) Kirriwom.J

^[24] Supra Note 23

^[25] Supra Note 16

^[26] Supra Note 23

^[27] SC564

^[28] (13/12/00) N2038

^[29] [1981] PNGLR 472 Kearney DC J

^[30] DCR 793/2011

^[31] DCR 544/2011