Police v Kawage [2018] PGDC 16; DC4002 (22 February 2018)

DC4002
PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL JURISDICTION

Cr.108Of 2018

THE POLICE

Informant

And

JOHN KAWAGE

Defendant

Goroka, P Kaumba, Magistrate

2018: February 8, 22

CRIMINAL:

Cases Cited:
Nil

References:
Nil

Counsel:

Lawyer for the Informant, Police Prosecutor,Ms .Kundi

Lawyer for the Defendant, In person

22^nd February, 2018

SENTENCE

P KAUMBA, Magistrate:Onthe 6^th of February 2018 the Defendant was taken into custody by police and was charged for being in possession of dangerous drug Cannabis Sativaunder section 3(1)(d) of the Dangerous Drug Act(DDA). The accused pleaded guilty to the charge andwas remanded in Correctional Services custody and the case was adjourned to 22^nd of February 2018 for sentencing and I directed community based corrections office to do a pre-sentence report for the court’s consideration in sentencing. I received the Defendants medical report on the morning of 22^nd of February 2018 so I deferred my decision to the 23^rd of February 2018.

STATEMENT OF FACTS

1. ‘’The facts now read that on Tuesday 6^th of February 2018 between 10,00am and 10 30am at UpekuUngai –Bena District. Police suspicious thatyuth from the area cultivating drug for selling and consuming there along the main highlands Highway, Upon suspicious, checked the area and the yuth ran away into the bushes.

Police approached a makeshift house where the Defendant now before the court dried

smokebrus and among them also dried leaves of marijuana. He was questioned and

replied that he donot know who placed it, He was looking sick person,he was taken to

Goroka police station where he was formally cautioned,arrested, charged and informed

of his rights and placed in cell’’.

ANTECEDENT REPORT

1. The offender is 50 years old and married with 6 children who are now adults. He has no prior convictions.
   
2. Due to the age of the Defendant, I directed Community Based Corrections office to do a Pre -Sentence Report(PSR)and they have done a report and I have read it and will be referring to it in my sentence.
   

COURT PROCESS &ARRAIGNMENT

3. On arraignment the offender pleaded guilty to the charge
   
4. Since the offender pleaded guilty to the charge,the court can extract relevant information from the statement of facts and the charge for the purposes of sentencing(State-vs-SabarinaYakal(1988-1989)PNGLR 129).
   
5. The Statement of facts quoted above was read to the defendantand the Defendant did not dispute the facts and confirmed the same so I confirmed his plea of guilty.
   

ALLOCUTUS STATEMENT

6. In his allocutusstatement the offendersaid he has broken the law and he is prepared toaccept punishment, the court gives him. I also note from the Pre-Sentence Report that heis remorseful of his actions and says he will not deal with drugs again after this case is dealt with.
   

ISSUE(S)

7. What is the appropriate penalty for the defendant considering the gravity of the offence, the conduct of the defendant in court, the view and interest of the community and the history of the defendant, his family background, other relevant factors like public policy, and sentencing trends in our society on this kind of offences?.
   

SUBMISSION BY POLICE

8. Ms Kundi submitted that the court should look at the fact that the defendant is 50 years old, married with 6 children and he has no previous conviction in making its decision on appropriate penalty.

OTHER MATTERS OF FACT

9. The defendant pleaded guilty, he will be given the benefit of doubt in having all facts in the police statement of fact, his statement on arraignment andin allocutus, antecedent report, submission by police and other facts made available to the court that are not contested will be taken into account in sentencing(SaperusYalibakup-vs- The State(2006) SCRA No 52 of 2005).
   

SENTENCING PROCESS

10. The sentencing process used by Canning’s J in the case of State -v-Raka Benson(2006)CR447& 450 is a good guide. I note that His Worship Kaumi as he then was adopted the process set by Justice Canning’s J in his judgements and I will do the same here with modifications to suit my cases and my line of thinking.
    
    1. MAXIMUM PENALTY FOR THE OFFENCE.
       

DANGEROUS DRUGS ACT(DDA).

2. PRODUCTION ETC OF DANGEROUS DRUGS
   

(1) A person who knowingly-

• (a) cultivates a plant from which a dangerous drug can be made; or
• (b) makes a dangerous drug;or
• (c) exports a dangerous drug;or

(d) is in possession of or conveys a dangerous drug or a plant fromwhich 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 not less than 3 months and not exceeding two years.

(2) An offence against sub-section(1) is punishable on summary conviction.

A defendant charged under section 3(1)(d) of DDA and found guilty can be
sentenced to imprisonment for two years maximum.

2. STARTING POINT.

I will use one(1) year as the starting point.

c. SENTENCING TREND AND GUIDES.
(i) Trend.
I have been reading many judgements to date in relation to entence’s
for offences in contravention of section 3(1) of DDA in our jurisdiction

andI note that in majority of casessentence of imprisonment has beenimposed by our courtsand many non- custodial sentenceshave also been imposed by our courts. In Police -vs- Steven Kawage(1998)PGDC 10- maximum sentence of 2 years imprisonment was imposed.

In Kaski –vs-Auhova(2007)PGDC 134, I year IHL imposed,Police–vs- LuiKeisi(2009)PGDC 38-Juvenile placed on 12 months GBB with conditions, Police –v- Aulem(2011) PGDC38- 3 months IHL but whole sentence suspended and Defendant placed on 12 months GBB with conditions, Police –vs- Tobby(2011) PGDC 34 - 3 months IHL suspended and place on 12 months GBB withconditions, Police –vs-

Nanai(2011) PGDC 38- 3months IHL and Police-vs-Francis(2011)PGDC 34 –6months IHL

(ii) Guidelines.

The highest penalty should be reserved for offences with higher degree of seriousness or worst type of offences(State–vs- Michael K Mani(21/05/2002) N2246 but that does not mean that highest penalty cannot be imposed. Courts can impose the highest penalty if circumstances andgravity of the offence requires and if the court is of the view that theinterest of the public requires it to give higher penalty to thedefendant to punish him and to deter potential offenders inthesociety to takeheed ofits decision and conduct their affairsin compliance with laws of our country. Guilty plea and first timeoffender are factors that will act as mitigating factor to mitigate the penalty to bring it below the starting point(State-v-Mani supra).Prevalence of the offence, will be aggravating factor to bring the penalty up and above the starting point depending on factors in mitigation and aggravation(State –vs-Mani supra). Quantity of Drugs involved etc. will be a mitigating factor or aggravating depending on volume of drugs involved. Cultivation and sale of drugs are more serious than consumption of drugs and penalties in sentencing should reflect the same.Sentences meted out by our courts must be consistent and uniform that is not only to be fair to the offenders but also to ensure that the sentences are in line with the aspirations and hopes of all people in the community and protect the community for lawlessness, disorder and health problems because sentencing is a community responsibly entrusted to the court by the PNG Constitution {section158(1)}.

4. CIRCUMSTANCES IN WHICH OFFENCE WAS COMMITTED.

See statement of fact(supra).

(1) MITIGATING FACTORS.

1. Guilty plea making work of the police and the courts easy.
2. Expressed remorse for his actions(see PSR).
   

(2)AGGRAVATING FACTORS.

1. The Defendant was found drying tobacco leaves and amongthem marijuana leaves in a makeshift house next to the Highlands Highway from which severalinferences can be made.

1. The Defendant cultivatesmarijuana.
2. TheDefendant was in the business of selling Marijuana.3. The Defendant is regular consumer of Marijuana.
   3. The offence is prevalent in our society and sentences

ofimprisonment are not deterring people from taking
and/or dealing with drugs.

5. SENTENCING CONSIDERATIONS AND SENTENCE
   

The Defendant is lucky in that he was not charged with cultivation of Marijuana and selling marijuana which in my view is more serious than being in possession of a drug.

Nevertheless the offenders actof drying marijuana leaves in his makeshift house alongside the Highlands Highway implies that he was in the business of cultivating marijuana(PSR report confirmed that the Defendant cultivates marijuana) and selling them to members of the public and that is very dangerous to persons in our community especially his people, the youthsand travellers. Hence the aggravating factorsis have more weight and far outweigh the mitigating factor(s) in the defenders favour.

Furthermore it was the intention of our law makers that drug use and dealing in drugs is very dangerous to our community and they set a minimum 3 monthsprison term for offenders.Hence the defendant’s offence in the circumstances should carry a head sentence of 1 year 2 months imprisonment with hard labour.

However considering the defendants health, age and good report from CBC in its PSR,I will use my discretionary power under section 132 of the District Court Act to suspend the wholesentence on the following conditions:

1. The defendant shall report to the office of Community Corrections Goroka and do 100 hours community work as determined by OIC- CBC Goroka or his delegate.
   

ii. The defendant shall enter into recognizance to be of good behaviour

for 1 year and to appear in court for conviction and sentence when

called upon to do so.

3. The defendantshall refrain from consuming and/or dealing with marijuana or any other dangerous drugs prohibited by law in any way or means either directly or indirectly during the period of his recognizance.
   

11. I order accordingly.
    

Counsel:

Lawyer for the Informant, Police Prosecutor, Ms .Kundi

Lawyer for the Defendant, In person