Police v Nelson [2014] PGDC 8; DC4084 (27 February 2014)

DC4084

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

DCR 58 of 2014

BETWEEN
POLICE
Informant

AND
JULIE NELSON
Defendant

Alotau: L Mesmin

2014: 26^th & 27^th February

CRIMINAL LAW – possession of dangerous drugs – marijuana – Dangerous Drugs Act, Section 3(1)

Cases Cited:
Laho Kerekere v Robin Miria [1983] PNGLR 277

References:
Dangerous Drugs Act Ch. No. 229

Counsel:
First Constable Joseph Ambere for the Informant
The Defendant in Person

SENTENCE

INTRODUCTION

1. L. MESMIN DCM: The Defendant pleaded guilty to one count of having in possession of dangerous drugs namely cannabis, commonly known as “Marijuana”.
   

HELD:

(i) The starting point for sentencing for this sort of offence is 3 months and

2 years imprisonment.

(ii) Mitigating factors are: confessed incident; co-operated with police; pleaded guilty; first offender.
(iii) The application of s. 138(1) of the District Courts Act 'can only in the event that the court has not proceeded onto conviction.' This is not the case at hand. A conviction has been entered thus s. 132(1) (supra) cannot be considered which leaves the court no option but to go directly to the penalty provision under s. 3(1) of the Dangerous Drugs Act.
(iv) A sentence of 3 months was imposed to be served at Giligili CS, Alotau, Milne Bay Province.

BRIEF FACTS

2. This is a Decision on Sentence for the Defendant, Julie Nelson, who pleaded guilty according to the following facts, that:
   
3. On the 18^th February 2014 at about 10:30pm, the Defendant was at the Airways Jetty gate when she was picked up as she was walking out by Vetsac Security guards and escorted to the police station. There she was searched by a female officer and 7 wraps of dried marijuana were found in her trousers pocket.
   
4. The defendant admitted to the offence and further stated that she picked those wraps of marijuana on the ground at the Jetty gate dropped by another person, Peter Ine.
   
5. She was then formerly arrested and charged for conveying dangerous drugs, cautioned, told of her Constitutional rights under S.42(2) and placed in the police cells.
   

ANTECEDENTS

6. In relation to her personal particulars the Court notes the following;-

(i) She is single.
(ii) Is unemployed.
(iii) She has no prior convictions.

ALLOCUTUS

7. On her behalf the Court notes that she pleaded guilty on arraignment but elected not to say anything in response to her conviction to assist in sentence.
   

LAW

8. This is an offence contrary to s. 3(1)(d) of the Dangerous Drugs Act Ch. No. 229 and it reads:
   

“3. Production, etc., of dangerous drugs
A person who knowingly:
(a)...
(b)...
(c)...

(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”.

9. The maximum penalty for the offence she committed is imprisonment of up to 2 years in hard labour.
   
10. To determine an appropriate penalty, I am inclined to consider if there are alternative penalties to that provided for under s. 3(1), (d) of the Dangerous Drugs Act.
    
11. The penalty provision under s. 3(1) of the Act is imprisonment not less than 3 months and not exceeding 2 years.
    
12. Although the minimum penalty is 3 months imprisonment, the court is not bound by such but may use its discretion to make such other orders where the court thinks the justice of the case can be adequately met. Section 132(1) of the District Courts Act (Ch40) is the only provision which allows for conditional release of a defendant.
    
13. In Laho Kerekere v Robin Miria [1983] PNGLR 277 the National Court held that the discretionary dispositive power contained in s138(1) of the District Courts Act (the predecessor of s.132(1)) is available to a court dealing with a minimum penalty offence like s.3(1) of the Dangerous Drugs Act. Amet J went further at p279 to qualify the application of s.138(1) of the District Courts Act 'only in the event that the court has not proceeded onto conviction.' This is not the case at hand. A conviction has been entered thus s. 132(1) (supra) cannot be considered which leaves the court no option but to go directly to the penalty provision under s. 3(1) of the Dangerous Drugs Act.
    
14. Having considered the above, I am of the view that because there is a minimum sentence provision then I have no discretion to impose any alternative penalty, but that imposed by legislature which is a custodial sentence between the minimum and the maximum, depending on the circumstances of the case.
    
15. Even if I had the discretion to impose an alternative penalty, the circumstances of the case requires that I impose a custodial sentence. This is a case that does; in my view require the court to impose the minimum sentence of three months. This should serve as a warning to other would be offenders and would deter them from committing similar offence.
    
16. The penalty I propose to impose here should serve as deterrence to the offender as well as a warning to others in the community that their conduct would not escape punishment. I consider the defendants’ guilty plea to be a mitigating factor. This should reduce a portion of the appropriate sentence. She was honest, confessed and co-operated with the police at the outset to pleading guilty and to me this demonstrates remorse.
    
17. `The prescribed penalty is three months minimum and two years maximum. The appropriate sentence I consider is 3 months and that is what I now impose on the defendant.
    

SENTENCE

18. The Defendant, Julie Nelson, having been convicted of the offence of being in possession of a dangerous drug, contrary to S.3(1) of the Dangerous Drugs Act, is to serve a period of 3 months imprisonment at CS Giligili, Alotau, Milne Bay Province.
    

First Constable Ambere for the Informant
The Defendant in Person appearing from custody