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Police v Marley [2011] PGDC 46; DC2029 (15 July 2011)

DC2029

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

DCR 793/2011

BETWEEN

POLICE
Informant

AND

WEIMAN MARLEY
Defendant

Madang: J.Kaumi
2011:14th, 15th 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- There are seven factors in Section.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-District Courts Act 1963 Cht 40

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 second year motor mechanic student pleaded guilty to being knowingly in possession of a dangerous drug, Cannabis for sale 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;

(2). 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

(3). 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

(4). 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. Cheong v Nemil [1981] PNGLR 472 Kearney DCJ

Cases cited

Paulus Manadatititip & Anor v The State [1978] PNGLR 128
Cheong v Nemil [1981] PNGLR 472 Kearney DCJ
Nup v Hambuga [1984] PNGLR 206 N478 (M) (2 August 1984) Bredmeyer.J
The State v Richard Amuna Koupa [1987] PNGLR 208
Acting Public Prosecutor v Don Hale Sc 564
The State v Thomas Waim [1995] PNGLR 187
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
State v Michael Kamban Mani (21/05/02) N2246 Kandakasi.J
Joesph Nimagi, Gurua Kerui and David Bawai Laiam v The State SCR 07 of 2003 (01/04/04)
Kovi v The State [2005] SC 789 (31/05/05) Injia DCJ,Lenalia &Lay JJ
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J)
The State v Raka Benson (2006) CR 447&450 Cannings.J
Police v Numan Kanai DCR 517/2011
Police Rex Aiye DCR 695/2011

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
PNGLR Papua New Guinea Law Reports
S C Supreme Court
SCR Supreme Court Reference
SECT Section
PWC FC Police Woman Constable First Constable
ST State
SECT Section
V Versus

Counsel

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

INTRODUCTION

1. Kaumi. M. Weiman Marley, 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 Tuesday the 05th of July 2011, at about 4:30 pm, the defendant now before the Court namely Weiman Marley was at the car park at Jomba Police Station, Madang town, Madang Province.

4. On the mentioned date, time and place the defendant and thereof his friends taken there after they were apprehended for being drunk and causing nuisance in front of the Papindo shop in town. Whilst they were coming out of the Police vehicle, a roll of cannabis (marijuana) was seen lying on the floor of the said vehicle so the defendant and his friends were asked to remove their shoes and the defendant was discovered having nine rolls of marijuana hidden in his boot.

5. When asked he admitted that the drugs (marijuana) belonged to him and said he got the drugs to support himself for his bus fare because his parents were not supporting him while he was attending school at the Saint Benedict Agriculture and Technical School at Danip, Madang. So he was formally cautioned, arrested, charged 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 21 years of age and come from Wilaru village in the Yangoru District of the East Sepik Province;

(b) You are a second year Motor Mechanic student at the St Benedict Agriculture and Technical School.

(c) You are single;

(d) You have no prior convictions.

ALLOCATUS

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

(a). I am a second year Motor Mechanic student undergoing studies at the St Benedict Agriculture and Technical School where I also live on the campus;

(b) My parents live far away in Wewak and I have no relatives in Madang and at the time of my arrest I was doing my practical so I was off the campus;

(d) I was selling marijuana for lunch money during my practical.

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

SUBMISSION BY STATE

9. 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

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) (1)

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 parts of 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 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.

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. In Police v Rex Aiye ^[3] 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".

17. I have continued to refer to the statistics provided by Ipang.M (as he then was) in his paper 'Sentences passed on Dangerous Drug Offenders' and will continue to do so for the want of a suitable precedents. In Police v Rex Aiye ^[4] I highlighted this lack of suitable precedents:

21. "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 conspicuous despite the good sense and obvious jurisprudential value of them".

18. 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.

19. 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.

20. 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

21. 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".

22. 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 Michael Kamban Mani ^[7] 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?

23. Going by Cannings.J in Raka Benson ^[8] 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 ^[9]

24. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? No, there was ten rolls 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? No, as he indicated in his allocatus he was selling drugs to the public in front of Papindo shopping centre to support himself.

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

(iv). Did the offender give himself up before being detected? No, he was drunk and being a nuisance when he was apprehended by Police and tried to avoid detection by the police by hiding the drugs in his shoes.

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

(vi). Has the offender genuinely expressed remorse? No, there was no expression of remorse of any kind and his comments expressed were self serving.

(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 two 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? 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 offence involved ten rolls of cannabis which the defendant wanted to sell.

(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

25. 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. ^[10]

26. I adopt my comments I made in Police v Rex Aiye ^[11]:

"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

27. 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?

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

29. After weighing all these factors and bearing in mind that there are four mitigating factors compared to eight aggravating factors, and two neutral factors and going by State v Inema Yawok ^[13], the head sentence should be the starting point of 3 months.

30. The total potential sentence is three months.

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

31. 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.

32. In considering whether or not all or part of the head sentence should be suspended I consider the following factors:-

(i). The prevalence of the offence I am dealing with;

(ii). The gravity of the offence matter;

(iii). The time of committing of offence;

(iv). Maximum penalty;

(v). The operation of Section 132 subsection (1).

33. Given the peculiar circumstances and prevalence of this matter I ask myself whether the interests of justice would be served if the head sentence is not suspended and the young defendant is incarcerated; 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".

34. The age of drug pushers on the streets average between 17 years and 35years and more and more young offenders are appearing in court for this offence and all plead personal hardship as a reason for their wrongdoing. The defendant in this matter also pleaded personal hardship as a reason for his wrongdoing.

35. The Supreme and National Courts in cases inter alia such as Joesph Nimagi, Gurua Kerui and David Bawai Laiam v The State ^[16], The State v Thomas Waim ^[17], The State v Richard Amuna Koupa ^[18], Paulus Manadatititip & Anor v The State ^[19] have thru the passage of time said that youth cannot to be a mitigating factor in serious cases like wilful murder, rape and armed robbery, that instead strong deterrent sentences are required where the offence is prevalent.

36. By way of analogy this defendant cannot hide behind the cloak of youthfulness, education or lack of prior convictions or personal hardship to excuse or mitigate his actions given the enormity of the problem of drug abuse in this country and the circumstances of his matter.

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.

40. One way of showing the community's disapproval of the sale 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.

41. The defendant I note was educated enough to gain entry to a Technical School and therefore should have known very well the consequences of his actions. Indeed his actions of concealing the drugs in his shoe whilst trying to sell them in front of a crowded shopping centre in broad daylight speaks of a pre-mediated plan to sell and are hall marks not of an innocent first timer but a seasoned pusher who had blatant contempt for the law. He was not an errant student using marijuana as a leisure activity but an unashamed drug pusher and coupled with his behavior being drunk and disorderly in a public area certainly these factors have a vitiating effect on the mitigating factors for him.

42. I also take into account the maximum penalty which is two years imprisonment and the effect of the maximum being imposed which I consider would be 'crushing' on the defendant as a young man.

43. Section 132 subsection (1) is a provision that 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;

44. In Nup v Hambuga ^[20] Bredmeyer. J stated 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. The defendant was in the process of selling marijuana when he was caught and for this fact alone it cannot be said that the circumstances of this matter were of a trivial nature furthermore I cannot find any extenuating circumstances which would cause me to at least consider giving this defendant a conditional discharge

45. 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 ^[21] Kirriwom.J

46. The aggregate result of the balancing act of considering the factors in favour and those against the defendant on this issue of partial or whole suspension of the head sentence of three months is that those in favour of him pale into insignificance so that suspension of any nature is emphatically out of question.

47. In consideration of the above sentencing principles this is not an appropriate case in which to consider a suspended sentence.

SENTENCE

48. Weiman Marley 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 three 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] (2006) CR 447&450 Cannings.J

^[3] DCR 695/2011

^[4] . Supra Note 3

^[5] DCR 517/2011

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

^[7] (21/05/02) N2246 Kandakasi.J

^[8] Supra Note 2

^[9] Supra Note 2

^[10] Supra Note 2

^[11] . Supra Note 3