Police v Laiko [2021] PGDC 20; DC5076 (26 April 2021)

DC5076

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 608 of 2021
BETWEEN

THE POLICE
Informant

AND

JACOB LAIKO
Defendant

Boroko: S Tanei

2021: 26^th of April

SUMMARY OFFENCE – Possession of Dangerous Drug – s 3(1) (d)– Dangerous Drugs Act 1952

PRACTICE AND PROCEDURE- Sentence – Plea of Guilty – principles of sentencing discussed and considered – Possession of Dangerous Drugs- Mitigating Factors and Aggravating Factors considered – Imprisonment for 6 months.

Cases Cited

Manu Kovi –v- The State [2005] SC789
State –v- Raka Benson (2013) PNGNC 8; N4957
Police –v- Weiman Marley [2011] DC2029
Police –v-David Tamako [2011] DC2031
Police –v- Rex Aiye [2011] DC 2034
Police –v- Mabera David [2021] DC5056

References
NIL

Legislation

District Courts Act 1963
Dangerous Drugs Act 1952

Counsel

Constable Tarabbie Agu, for the Informant

The Offender in Person

RULING ON SENTENCE

26^th April 2021

S Tanei: The Offender, Jacob Laiko pleaded guilty to one count of being in Possession of a Dangerous Drug on 13^th April 2021.

2. This is my ruling on sentence.

FACTS:

3. The Offender, Jacob Laiko was charged with one count of being in Possession of a Dangerous Drug under section 3 (1) (d) of the Dangerous Drugs Act 1952.

4. The following are facts to which Jacob Laiko pleaded guilty to.

5. On 6^th April 2021 members of the Drug and Vice squad received a tip off that the Defendant had a 10 kg bag of Marijuana at his house. At around 6.40 pm, they surrounded the Offender’s house at Talai settlement at Badili, called the Defendant out and searched him. From the search, they found thirty-one (31) K2 rolls of marijuana (cannabis) packed inside a tin placed near the door of the house.

6. The Offender was then taken to the Natioal Drug and Vice Squad Office and questioned. He freely admitted that he got the drugs from a person to which he did not know his name.

7. He was then formally arrested, cautioned and told of his Constitutional Rights and detained.
8. Prosecutor Tarrabie Agu tendered the tin containing the 31 rolls of marijuana (cannabis) as exhibits in Court during submissions on sentence.

ANTECEDENT REPORT

9. The Offender is 30 years old and hails from Orokoro Village in Ihu, Gulf Province. He is single and resides at Talai Settlement, Badili, NCD. He is unemployed and has no prior conviction.

ALLOCOTUS:

10. During Allocotus, the Offender said “Me yet sa simuk na stap osem marasin blo me lo relax after lo wok. Me tok sorry lo kot”. When translated to English, it means I use the drug for personal use and to help me relax after work. I apologise to the Court.

ISSUES:

11. The Court is faced with the issue of what sentence it should impose on the Offender.

THE LAW

12. Section 3 (1)(d) of the Dangerous Drugs Act 1952 provides that;

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.

13. This offence carries a penalty of Imprisonment for a term of not less than three months and not exceeding two years.

PRINCIPLES OF SENTENCE
14. In deciding on the appropriate sentence the Court must be guided by sentencing principles.

15. I will adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Raka Benson (2013) PNGNC 8; N4957, His Worship Mr. John Kaumi (as he then was) in the case of Police –v- Weiman Marley [2011] DC2029 and His Worship Mr. Edward Komia in the case of Police –v- David [2021] DC5056. In those cases, the following decision making process was used:

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?

16. The maximum penalty provided for under the Act is imprisonment for 2 years. This is reserved for the worst case scenario.

STEP 2: WHAT IS A PROPER STARTING POINT?

17. In many cases, the Courts held that the proper starting point would be the mid-point since the Prisoner pleaded guilty.

18. This means that in our case, the mid-point would be 1 year imprisonment. The Court can then work its way up or down depending on the mitigating and the aggravating factors.

19. However, it is my view that a starting point for sentencing is also dependant on sentencing trends relating to the offence itself. I will therefore consider this in my ruling.

STEP 3: WHAT ARE THE TYPE OF SENTENCING GUIDELINES AND TRENDS PER JUDGMENTS FOR THIS TYPE OF OFFENCE?
SENTENCING GUIDELINES

20. I adopt the guidelines used by His Worship Mr. Edward Komia in the case of Police –v- Police –v- David and His Worship Mr. John Kaumi (as he then was) in the case of Police –v- Marley where they used the guideline used in the case of Manu Kovi –v- The State [2005] SC789. In those cases, the courts stressed the importance of considering the maximum prescribed penalty, consideration of the Offender’s statements in allocotus and the consideration of mitigating and aggravating factors. For this particular offence, they have applied the following criteria/categories;

“ (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".

SENTENCING TRENDS

21. It is important to look at the sentencing trends and similar cases when handing down the sentence.

22. In the case of Police –v- Weiman Marley [2011] DC2029, the offender pleaded guilty to one count of being in possession of a dangerous drug where he had in his possession 10 rolls of marijuana for sale. He was given a custodial sentence of three (3) months imprisonment.

23. In the case of Police –v- David Tamako [2011] DC2031, the offender pleaded guilty to one count of being in possession of a dangerous drug where he had 1.6 kilograms of cannabis in his possession. He was given a sentence of 12 months imprisonment.

24. In Police –v- Rex Aiye [2011] DC2034, the offender pleaded guilty to being in possession of a dangerous drug where he was in possession of a large K10 and a large K20 pack of cannabis from which a close to 100 rolls of marijuana could be made. He was sentenced to 12 months imprisonment.

25. In the case of Police v Mabera David [2021] DC5056, the offender pleaded guilty to being in possession of a dangerous drug. He had over 200 rolls of cannabis. He was given the maximum sentence of 2 years imprisonment as his case falls in the worst case scenario.

26. I note from the judgements given above that the sentences varied depending on the amount of drugs the offenders had in their possession and the mitigating and aggravating factors.

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?

27. The Offender pleaded guilty to the offence that he was charged with. Thus, it is only proper that the Court takes into account the mitigating and the aggravating circumstances.

28. I adopt the considerations that the Courts used in the cases listed above. These considerations are used to determine the mitigating and the aggravating factors. The considerations are;

(i) Was only a small amount of dangerous drug involved? No, there were thirty one (31) K2 pack rolls of marijuana

(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. The facts to which he pleaded guilty to show that he is involved a syndicate that buys and sells this drug.

(iii) Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, the offence was premediated as stated in his allocotus. He stated that he had been using the drugs for relaxation purposes.

(iv) Did the offender give himself up before being detected? No. Police were tipped off about him being in possession of the drugs and it was upon a search that they discovered the drugs in his possession.

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

(vi) Has the offender genuinely expressed remorse? No, he did not express genuine remorse. During allocotus, he stated that he takes marijuana for relaxation purposes after work. Although he said he was sorry, I do not see it as genuine remorse.

(vii) Is this the offender’s first offence? Yes.

(viii) Has the offender been a good member of his school and the community in which he lives? Yes. The prosecutor submitted that he is a good member of the community.

(ix) Is the offender a person of good health both physically and mentally? No. He looks sick and dependant on the consumption of marijuana. He is an addict.

(x) Has the offender and his family already paid a heavy price for his actions? No

(xi) Can the offender be regarded as a youthful offender? No, he is an adult offender.

(xii) Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? No

(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. The consumption of drugs has led to many other offences in the city and as such putting the safety of other citizens at risk.
29. The rationale behind the considerations is that if the answers are yes, they are mitigating factors, while no answers are aggravating factors. Thus, more mitigating factors would mean a reduction of the head sentence while more aggravating factors would mean lifting of the sentence above the starting point.

30. From the considerations listed above, the No answers outweigh the Yes answers by 12. There are 3 “Yes” answers while there are 12 “No” answers. There are more aggravating factors than mitigating factors.

STEP 5: WHAT IS THE STARTING POINT FOR THE HEAD SENTENCE FOR THE OFFENCE?

31. In submissions on sentence, Constable Tarrabie Agu of Police Prosecutions submitted that the offender is a sick person and depends on the drug for his health. When the Court enquired as to how he knew this he submitted that he could see from the Offender’s physical appearance and also from verbal advice from the Offender’s family members. He therefore submitted that the Offender must be given a sentence of 2 months imprisonment.

32. I find that the submissions of the Prosecutor are misconceived. Firstly, this is because he provided no evidence to support the claim that the Offender needed the marijuana for medical purposes. From the facts to which the Offender pleaded guilty to, he had thirty-one (31) K2 rolls of marijuana in his possession. I hold the view that such a large amount of drugs is not for medical purposes or personal use but for sale. Also, his proposed sentence is below the minimum penalty prescribed in the Act.

33. Considering the sentencing guidelines and trends, I note that the sentences differ depending on the amount of drugs the Offender was in possession of at the time of the offence and the mitigating factors and the aggravating factors.

34. The Offender’s mitigating factors do not work in his favour in this case.

35. This case falls under the second category of the list in the sentencing guidelines listed above. Here the Offender had thirty-one (31) K2 pack rolls of marijuana and I reasonably infer from the facts that he is not only a consumer but a possible drug pusher. His possible sentence is imprisonment for a term of 3 to 8 months.

36. In the case of Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 150, the Court discussed principles of sentencing and held that the purposes of sentences are for deterrence, separation, rehabilitation and retribution.

37. In this case, the Offender is a first time offender and he pleaded guilty. However, this offence is prevalent in the National Capital District and the mitigating factors in this case do not help. Thus, in my view, the sentence given to the offender must be deterrent and also for his rehabilitation. He must be given time to reflect on his actions and change for the better.

38. I therefore impose a sentence of six (6) months imprisonment in hard labour.

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

39. Section 132 (1) of the District Courts Act gives a magistrate the discretionary power in certain circumstances to dismiss the charge or to suspend the sentence where a person is charged with a simple offence and if the charge is proven.
40. I will not invoke that power because the circumstances of this case do not warrant it. Also, this offence is so prevalent in the city that the Courts need to take a stand to deter people from doing it.

CONCLUSION

41. Taking into consideration all the circumstances, I find that the appropriate penalty would be six (6) months imprisonment.

COURT ORDER

42. The following are the Orders of the Court;

1. Jacob Laiko, having pleaded guilty and being convicted of the offence of Being in Possession of a Dangerous Drug namely marijuana (cannabis) under section 3 (1)(d) of the Dangerous Drugs Act is sentenced to six (6) months imprisonment in hard labour.
   
2. A Total of 20 days shall be deducted for the time he spent in custody.
   
3. The Offender shall serve the remainder of his sentence of 5 months and 10 days at Bomana Corrections Institution.
   
4. A Warrant of Commitment is issued forthwith in the terms listed above.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person