Police v Gavin [2022] PGDC 49; DC8052 (11 March 2022)

DC8052

PAPUA NEW GUINEA.

CRIMINAL JURISDICTION
DC Com NO: 28 /2022.

IN THE MATTER BETWEEN:

POLICE/STATE.
Informant.
.
AND.

MANAIA GAVIN
Defendant

Popondetta: Michael W. Apie’e

2022: March 11^th.

CRIMINAL LAW. Practice and Procedure-Sentencing after conviction on trial.

-Circumstantial Evidence- Large Quantity of Dried Marijuana in 3 x10kg rice bags and 3 x 5kg Rice bag and 1 x 5kg Flour bag found in a house from which Defendant comes out and surrenders to Police.
Other occupants of the House escaped from Security Personnel.
-Initial Admissions made to Security Personnel about ownership of said quantity of Marijuana.
-Marijuana contains prohibited drug Cannabis –Sativa.,

Cases Cited:
Wilkerson v. Grant; Stephens v. Grant: Michalov v. Grant [1967-68] PNGLR 112
State v. Louie Efi N6454
Paulus Pawa v. State [1981] PNGLR 498.
Kuri Willie v. The State [1987] PNGLR 298.

References:
Dangerous Drugs Act 1952
Dangerous Drugs (Amendment) Act 2021.

Representation;
Defendant appears in Person
Sergeant Morosake Konte for the Police/State.

RULING ON SENTENCE.

Background.

1. The Defendant was convicted after Trial on one count of Possession of 12.09 kilograms (Kgs) of Dried Marijuana which contains Prohibited Drug Cannabis and Cannabis resin, and extracts and tinctures of Cannabis under Schedule 1 of the Dangerous Drugs Act of 1952.
   
2. On 18/03/22, the Defendant pleaded not Guilty before the Court to the Charge of Possession of 12.09kg of Marijuana which contains Cannabis –Sativa and trial was set for the 30/03/22.
   

Prosecution case:

3. On the 30/03/22 trial commenced and Police Prosecutions Sergeant M. Konte called two witnesses namely Security Major, Oswald Paro and his Security Guard Charlie Wusi.
   
4. According, to these witnesses, the Background is that on the 07/03/22 at Ouve Buffer Zone at Mamba Estate in the Sohe District of Northern Province, Higaturu Palm Oil Company Security Personnel were dispatched by the Management to carry out awareness to Illegal Settlers at the Ouve Buffer Zone area owned by the Company.
   
5. The awareness was to inform Settlers at these Location of the Companies intention to have them evicted from its Reserved Lands to allow for Planting of Palm Oil in the near future.
   
6. Also, according to Major Paro, there was a tip-off made to them about certain quantity of Drugs in the Ouve Buffer Zone Settlement area.
   
7. When the Security Personnel arrived at the Particular house the Defendant was at, which house belongs to a known suspect named Hilarien, the persons that were in the house came out and lined up in front of the House and the Security were talking to them.
   
8. The said Hilarien saw the Security in front and broke out and escaped from the back of the house and the Security personnel gave chase and the people standing in front of the house also took that opportunity and escaped.
   
9. At the time Major Paro fired a warning shot and the Defendant who had remained hidden in the house came out and surrendered to the security Personnel.
   
10. After this, the Security Team entered the house and discovered the quantity of drugs described above.
    
11. These witnesses also hinted that paper had been cut and prepared to pack these Marijuana for purposes of Sale or Distribution.
    
12. Major Oswald Paro reported that, at the Security Base when questioned the Defendant, he admitted to being the owner of the said quantity of drugs, saying that he brought it in from his village of Sako in Garaina, Morobe Province for purposes of Sale in the Oror Province.
    
13. The Prosecutions contentions borne out by their Evidence is simply that the Defendant was caught by Security personnel coming out of a house containing a total of 12.09kg’s of dried Marijuana, and that the Defendant had admitted to owning the said 12.09kg’s of Marijuana.
    
14. The Police case against the Defendant was therefore more than Circumstantial, given his admission to owning the Marijuana/Cannabis-Sativa, thereby surpassing the need for considerations to be had under the principles set out in Paulus Pawa v. State [1981] PNGLR 498.
    
15. During the hearing the Defendant though was amply advised, informed and cautioned by the Court opted not to cross examine the Prosecution witnesses thereby by omission conceding to all that was posed by the prosecution.
    

Defense case:

16. At the end of Prosecutions witnesses the Prosecution closed and the Defendant was informed of his rights and options to respond to the Prosecution case, but he opted to remain Silent, further conceding to the Prosecution’s case.
    

Verdict:

17. Accordingly, the Defendant was found Guilty as charged due to the unopposed and logically laid out Prosecution case.
    

Allocutions:

18. When asked to address on Allocution as regards the penalty to be imposed, the Defendant simply asked for Leniency.
    

Observations:

Aggravating Circumstances.

19. The Defendant was found guilty for possession of a substantial amount of Marijuana/Cannabis sativa of 12.09kg’s packed in 7 assorted bags after a trial when he pleaded not Guilty.
    
20. The Evidence also hinted that paper had been cut and prepared to pack these Marijuana/Cannabis-Sativa for purposes of sale or distribution and so the obvious intention to distribute through sales of these marijuana is established.
    
21. If Distributed, 12.09kg of Marijuana/Cannabis-Sativa had a potential to cover a lot of people and especially the young people and school aged children within this Province.
    
22. Given the manner in which the Defendant remained silent and did not respond to the Prosecution of this case, it was obvious he ought to have pleaded guilty in the first place, but then again he had the right to plead not guilty and the Prosecution to bear the responsibility to prove its case to the requisite standard, but to what cost? At his own cost?
    

Mitigating Factors.

23. The Defendant is a youthful first Offender with no prior convictions.
    
24. The Defendant is also obviously part of a group of people involved in trans-shipping this substantial quantity of Marijuana into the Oro Province and the Court is mindful of the Danger of making him the scapegoat of the compound wrongs of others who might have had a part in this offence, considering that according to the Security Personnel, the owner of the House at Ouve Buffer Zone at Mamba Estate namely Hillarien was a known Suspect in Drug related offences.
    
25. In the Pre-Independence case of Wilkerson v. Grant; Stephens v. Grant: Michalov v. Grant [1967-68] PNGLR 112, Minogue J then, also expressed the sentiment that the District Court must be careful not to make one offender the ‘Scapegoat’ for all other offenders in any particular prevalent offences or crimes for example in the cited case, particularly Traffic offences.
    
26. In the more recent case of State v. Louie Efi N6454 Kirriwom J, as he then was ruled that in a case of Murder wherein the Two Defendant was the only ones Prosecuted for a Crime that was committed by multiple persons that ‘’The Defendants should not be made “Guinea-pigs” or “Scapegoats” to bear the brunt of those not prosecuted’
    
27. In the Northern Province, this Court will take Judicial Notice of the Fact that like in other Provinces in Papua New Guinea, the incidences of alcohol abuse and alcohol related offences and crimes has been steadily rising as well as the use and abuse of other illicit drugs and substances chief among which is Marijuana/Cannabis Sativa.
    
28. Some form of Deterrence is called for in respect of this kinds of endeavor wherein substantial quantities of illicit substance are brought into a Province with the intention to distribute to the Populace as in this case.
    
29. In my personnel opinion personal drug use and possession of such substances in small amounts for personnel use should fall in a lower tier of severity than possession of Substantial amount for purposes of Distribution.
    
30. The intention to distribute illicit Drugs and other noxious and Dangerous substances to other people therefore should rightly attract a heavier penalty.
    
31. In this instance the defendant was obviously party to an operation that intended to distribute over 12kgs of Marijuana/Cannabis Sativa to population pockets in the Northern Province.
    
32. Some of his potential accomplices escaped apprehension that day and remain at large.
    
33. The Sentence that is to be imposed on this Defendant should therefore not only be for his personal punishment and deterrence but also to deter others out there from scheming and committing similar offences.
    

The Law:

34. Due to the Incident or Incidences of Drug related cases including the infamous Cocaine Trans-shipment case of 2021, Parliament in its wisdom had upped the Sentencing Regime under Section 3 of the Dangerous Drugs Act in its amendment No: 20 of 2021 dated 13 /01/22.
    
35. Section 3 of the Dangerous Drugs Act of 1952 used to read as follows;
    

PART II. – CONTROL OF DANGEROUS DRUGS.

3. 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 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.

(2) An offence against Subsection (1) is punishable on summary conviction.

36. That Provision was amended in January of 2022 and its Penalty Provisions now reads as follows;
    

REPEAL AND REPLACEMENT OF SECTION 3.

3. 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 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: Fine not Exceeding K1,000,000.00 or imprisonment not exceeding 40 years or both.

(2) An offence against Subsection (1) is punishable on summary conviction.

37. The defendant was apprehended on the 07/03/22 and this charge laid on him on the 18/03/22 well after the Passage and Certification into Law of the amendment to the Penalty Provision under Section 3 of the Dangerous Drugs Act on 13^th January 2022.
    
38. The conditions in Section 11 Effect of Changes in Law in the Criminal Code Act therefore do not apply in this case.
    

SENTENCE:

39. In considering Sentence for the Defendant, the court makes the following observations;
    
    1. The only notable Factor in Mitigation in favour of the Defendant is that he is a youthful first Offender, and the Court is mindful that long term of incarceration ought to be considered as a last resort-Kuri willies v. The State [1987] PNGLR 298.
    2. Also the court is conscious of the dangers of Youthful offenders being exposed to undue influences by more seasoned criminal types in custody.
       
    3. However, in this case, the gravity of the Offence of Trans-hipping more than 12 kg’s of Marijuana/Cannabis Sativa across Provincial boundaries with the intention to Distribute to others outweighs whatever Value the Defendants Youthfulness might have in this instance.
       
    4. A Punitive and Deterrent Sentence is called for in the circumstance of this particular case.
       
    5. The Defendant would have been better served by an early plea of guilty rather than ignorantly taking this court on a protracted trial.
       
    6. The Prevalence of the Offence of Production, Transportation. Possession and Distribution as well as Use of dangerous Drugs contrary to the Dangerous Drugs Act is another very serious problem in our country wherein the youth and young people of this country as the targeted demography is an asset this country cannot afford to loose to drug addiction or other consequential maladies like mental disorders that result from drug use.
       
    7. That is the basis for my stern Position on the ‘Distribution’ of Dangerous Drugs.
       
    8. Any apprehension of the Defendant being made a ‘Scapegoat’ of the Compound Wrongs of others is eliminated as follows;
       
       1. If all the Persons involved in this Marijuana/Cannabis-Sativa trans-shipment at Mamba Estate were apprehended and brought in their head sentence would be the same.
          
       2. Any Mitigation or Aggravation toward their sentence would be dependent on the peculiarity of their individual cases.
          
       100. The head sentence the court has in mind now given the Amendment to the Dangerous Drugs Act of 14/01/22 is Six (6) years in hard Labour.
            
    9. The 2022 Amendment to Section 3 of the Dangerous Drugs Act was arrived at by Parliament for a reason in their wisdom, and the plight of the growing list of young people in our towns and village in Papua New Guinea developing Mental Maladies and problems is one factor I would readily point to as reason enough.
       
    10. The scourge of Marijuana Distributions to our young people must stop.
        
40. In order to set some kind of Pattern, considering the potential street value of Marijuana/Cannabis Sativa in an average Papua New Guinea town, since the imposition of fine is provided for under the Amendment, this court in this instance will consider imposing by the Kilogram and so in this instance given that this is probably one of the First cases under the Amendment this court will Impose Fine as follows K500.00 per Kilogram of Marijuana/Cannabis Sativa charged/Alleged.
    
41. The Default Head Sentence for Imprisonment is set at one year per K1000.00 imposed and so in this case the potential Default penalty is arrived at Six (6) years, however the Defendant’s youth and status as a person with no prior convictions leads this court to consider that a lesser Default Penalty is warranted.
    
42. Accordingly, the Defendant is Sentenced as follows
    
    1. Fine Imposed in the sum of K6000.00.
       
    2. In default of Court Fine, the Defendant is to serve 4 years in hard labour at Biru Correctional Services Goal.
       
    100. Time spent in custody of 37 days is to be deducted from the head sentence of 4years if he is not able to meet the requisite Court Fine amount.
         
    4. Balance of 3 year 10 months and 3 weeks to be served in hard Labour.
       

Police Prosecutions for the State.
Defendant in person.