Police v Jaron [2021] PGDC 17; DC5073 (16 April 2021)

DC5073

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

CRIMINAL (SUMMARY) JURISDICTION

SUM NO. 97 OF 2021

Between:

THE POLICE

Informant

And:

JACKSON JARON

Defendant

Tari: E. Komia

13^th April 2021, and 14^th April 2021, 15^th April 2021 and 16^th April 2021

SUMMARY OFFENCE

PRACTICE AND PROCEDURE – admission of offence – accused claims that the dangerous drug is not his – accused denies being the owner of the trouser/ shorts he wore which contained the dangerous drugs – irrespective of the ownership of the shorts, drug was contained in the shorts – accused pleaded guilty of being in possession of a dangerous drug during cross examination.

Held:

1. Where an accused partially admits to being in possession of the dangerous drug, but raises a denial of ownership of the dangerous drug, such denial should not be a defence, as an element of the offence regarding ‘possession’ has been satisfied, and as such, the court should not consider the partial admittance as a mitigating factor.
   
2. An accused person may not be given the benefit of the doubt (Saperus Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006) (per Jalina J; Mogish & Cannings.JJ )), if the accused has neither admitted, nor denied the charge but continues to give reasons for the offence, and such excuses and reasons must be regarded as a de facto denial of the offence by an accused.
   
3. The proper penalty to be imposed shall be according to the guidelines set in Police v David [2021] PGDC 5; DC5056, hence; in circumstances where the accused has been convicted of being in possession of twenty (20) packs of marijuana, the sentence baseline should begin from three months minimum and maximum penalty of six months in custody.
   

Cases Cited

Saperus Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006)

Police v David [2021] PGDC 5; DC5056 (15 March 2021)

Police v Steven Kawage [1998] PGDC 10, (15 June 1998)

Akasiki v Auhova [2007] PGDC 134; DC700 (17 July 2007)

Police v. Lui Keisi [2009] PGDC 38; DC895 (2 June 2009)

Police v. Aulem [2011] PGDC 32; DC2024 (12 May 2011)

Police v Tobby [2011] PGDC 33; DC2019 (17 May 2011)

Police v. Nanai [2011][PGDC 35; DC2021 (17 May 2011)

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

Kabilo v. Parengkuan [2008] PGDC 139; DC1025 (11 September 2008)

Police v. Aiye [2011] PGDC 41; DC2034 (27 June 2011)

Police v Bala Saol [2011] PGDC 43; DC2036 (8 July 2011)

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

Legislations Cited

Summary Offences Act

Counsels

Police Prosecutor: Senior Sergeant Mr. Akaku

Counsels for the Defendant: in person

INTRODUCTION

1. The accused was charged with one count of being in possession of a dangerous drug, known as cannabis (marijuana), without any lawful authorisation.
   

FACTS

2. The accused was arrested on 25^th March 2021, and it is alleged that the accused was at that material time, in possession of 20 packs of marijuana, which were worth a total of K20 at the domestic market price. The police charged him pursuant to s. 3(1)(d) of the Dangerous Drugs Act.
   
3. He was found guilty, and convicted of the offence after the trial was conducted on 14^th April 2021.
   
4. This is now the ruling on sentencing.
   

ISSUE

5. What is the proper penalty to be imposed on the offender?
   

EVIDENCE

6. The Police relied on the summary of facts during the hearing and adduced the summary of facts as evidence. The summary of facts was read out and the accused gave his oral testimony which the court took as his evidence. The prosecutor, later cross examined the accused on the basis of his evidence, which he stated that he was not the owner of the shorts which contained the dangerous drugs and the shorts belonged to another person.
   
7. During the cross examination, the prosecutor asked the accused if the twenty (20) packs of marijuana were his? The accused denied being the owner of the drug. The accused said that the drug was not his, because the shorts that he was wearing at that time which contained the drugs belonged to another person and he was wearing the shorts. The comical thing about the accused’s evidence is that, the defendant does not know the owner of the shorts, but when he went home to wash and return to town, he saw the shorts and just wore it and came into town.
   
8. During the cross examination again, the accused appeared to be very confident and gave his testimony sticking with his initial statement made during the provisional plea of not guilty. To my mind, the accused is a smart liar, and has a very cunning demeanour that can be misleading at times if the court is not careful. I find the defendant to be lying because, if the shorts were not his, why would he be wearing it? Further to that, if he was wearing another person’s trousers, how did he not realise what was in the trousers, and why didn’t he dispose those drugs in the house, or simply wear another pant? These questions were never answered by the defendant and therefore, he is lying to this court and his evidence that he is not the owner of the pant he was wearing at that time is out rightly dismissed.
   
9. He was in possession of the dangerous drugs and therefore must be given the penalty. There is no two way thing about this.
   

DISCUSSION OF LAW ON SENTENCING REGIME

10. The law with respect to sentencing a person in possession of drug is discussed in many District Court cases. In discussing this, I rely on the judgement of Police v David [2021] PGDC 5; DC5056, where I stated, that;

25. Almost all the relevant cases regarding possession of illegal drugs (cannabis), such as the case of Police v Steven Kawage [1998] PGDC 10, (15 June 1998), Akasiki v Auhova (2007] PGDC 134; DC700 (17 July 2007), Police v. Lui Keisi [2009] PGDC 38; DC895 (2 June 2009), Police v. Aulem [2011] PGDC 32; DC2024 (12 May 2011), Police v Tobby [2011] PGDC 33; DC2019 (17 May 2011), Police v. Nanai [2011][PGDC 35; DC2021 (17 May 2011), Police v. Sebi & Ors [2011] PGDC 45; DC2033 (14 July 2011), Kabilo v. Parengkuan [2008] PGDC 139; DC1025 (11 September 2008), Police v. Aiye [2011] PGDC 41; DC2034 (27 June 20011), Police v Bala Saol [2011] PGDC 43; DC2036 (8 July 2011), and Police v Nelson [2014] PGDC 8; DC4084 (27 February 2014), and many other authorities all unanimously set the baseline for the sentencing of a convicted offender starting point at three months, and then depending on the number of packs, or its mass, coupled with the demeanour of the convicted persons, lean towards custodial sentence. Nevertheless, there is no set baseline for the number of packs or mass of the illegal drugs (marijuana) that would attract penalty sentencing time.

11. In that case (David (supra)) I went further to discuss and set out the criteria the courts should employ in deciding cases regarding offenders who are convicted of being in possession of cannabis (marijuana), and in my ratio decidendi, I stated that;
    
    32. In this circumstance where the offender has in his possession, I would set the following criteria in order to give a proper sentencing guideline for similar cases which the courts might be faced in the future. The following would be my starting point for head sentence of the offence, relating to the quantity of the illegal drugs the offender possess at the time of his arrest and charge. These are as follows:

1 to 10 packs - three months or suspended sentence and GBB

11 to 20 packs - between three and six months in light labour

21 to 50 packs - between seven and twelve months in hard labour

51 to 99 packs - between thirteen months and eighteen months in hard labour

100 and over - between nineteen months to twenty four months in hard labour

33. With the above starting points with respect to the quantity according to my categorization above, I set the total potential sentence starting point at nineteen months. I am therefore of the view that the proper sentence regime would attract a time between nineteen and twenty four months, which is the maximum penalty.
    
12. The Court can give an accused the benefit of the doubt as was held in Saperus Yalibakut v The State [2006] PGSC 27; SC890 (27 April 2006) (per Jalina J; Mogish & Cannings.JJ ), but, I am fortified in my opinion that, where an accused does not plead guilty to a charge and has resorted to defending his guilt by bringing into court excuses claiming that, he did not own the trouser or he was not the owner of the item that was hosting the dangerous drug, this court must not give such persons the benefit of the doubt. Such persons have a demeanour of trickery in buying their way out of the criminal responsibility. This to my mind operates as a detriment to the accused himself.
    
13. Even during the allocatus, the accused has been clinging onto the defence he raised, stating that he is not the owner of the trousers and that if he was to be sent to jail, it was because he made mistake to wear the trousers. Such statement made by the accused on allocatus is a blunt statement that he is not remorseful and, even if he is wrong, he has no feeling of being responsible for his actions.
    
14. I have considered the mitigating factors which are ordinary, and the only factor that stands out is the fact that, he is a first time offender. A first time offender has been for far too long became an excuse to liberate small time criminals who later on ascend to a higher form of aggression in whatever offence they commit. I am not minded to have this become a serious consideration in this case, as the merits and the circumstances in this case warrant me to shy away from considering such factors.
    
15. I am therefore minded to make orders that the accused is to serve a term of five months in Hawa Correctional Facility, which shall start to run from the date of the pronouncement of this order, which shall be today, the 16^th April 2021.
    

Orders accordingly

By the Court

Magistrate Komia