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Police v Umo [2022] PGDC 50; DC8053 (21 March 2022)

DC8053

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION


SUM: 86 of 2022


BETWEEN


POLICE
(Informant)


AND


NICKSON UMO
(Defendant)


Vanimo: B. Fehi


2022: 21st March


CRIMINAL SUMMARY: Guilty Pleas on 1 count of Being in Possession of Dangerous Drug pursuant to Section 3 (1) (d) Dangerous Drug (Amendment) Act 2021 and 1 count of Being in Possession of Illicit Spirit pursuant to Section 45 (d) of the Distillation Act – Sentencing principles – Purpose of sentencing – the Principle of Proportionality – Sentencing guidelines – midpoint – sentencing trends – Aggravating and Mitigating factors – Community views – Non- custodial Sentences – Concurrent sentencing approach relevant - Court fine and Period of Probation appropriate as penalty under the circumstances.


Cases Cited:


Legislation:


Representation:


Decision on Sentence


21st March 2022


  1. FEHI. B DCM: The defendant was charged with 1 count of Being in Possession of Dangerous Drug pursuant to Section 3 (1) (d) of the Dangerous Drug (Amendment) Act and 1 count of Being in Possession of Illicit Spirit pursuant to Section 45 (d) of the Distillation Act Chapter 305. Guilty pleas entered respectively for the two (2) charges and this is now my decision on sentence.

RECORD OF PROCEEDINGS


  1. The defendant was brought before me from police custody for his first mention and arraignment on 07th of March 2022. During arraignment defendant admitted to both charges and the police had the brief facts read to him. Defendant upon hearing the brief facts raised no objections, thereafter I perused through the contents and satisfied myself that it was safe to confirm the guilty pleas of the defendant. Respective guilty pleas were entered on record. Prosecution tendered defendant’s antecedent report and I confirm him to be a first time offender, he is unemployed and resides at Leitre Village with his wife and 4 children. In his allocutus defendant asked for mercy and showed remorse for his actions. Thereafter the matter was adjourned to 21st March 2022 for sentencing. Direction was also issued for Mr. Kasanda of Community Based Corrections Office Vanimo to prepare and file before me a Pre-sentence Report (PSR) of the Offender no later than 18th March 2022. Prior to sentencing I have had the benefit of reading through the PSR and thank Mr. Kasanda for his efforts. Contents of the PSR were considered and included where relevant in my decision.

POLICE SUMMARY OF FACTS


  1. It was admitted that on Thursday 24th of February 2022, at about 2:30pm the offender was at Yajada Trading Center Vanimo Town. He had with him a bilum containing 5x marijuana rolls and 4x 500ml Coke containers filled with illicit spirit commonly referred to as ‘steam’. While there he was approached by one Constable Bagen, who upon reasonable suspicion conducted a search on his body only to find the bilum and its contents. Thereafter he was apprehended placed in an unmarked vehicle and escorted by the policemen to Vanimo Police Station. He was then arrested, charged and locked up until the date of his first mention before me.

THE LAW AND MAXIMUM PENALTY


  1. Defendant was charged pursuant to Section 3 (1) (d) of the Dangerous Drug (Amendment) Act 2021 and Section 45 (d) of the Distillation Act. The provisions appear in their respective legislations as follows:

3. PRODUCTION, ETC, OF DANGEROUS DRUGS


(1) A person who knowingly,

Is guilty of an offence unless he is authorized to do so by or under this Act


Penalty: A fine not exceeding K1, 000, 000.00 or imprisonment for a term not exceeding 40 years or both.


45. ILLICIT STILLS AND SPIRITS.


A person who knowingly–


(a) uses or unlawfully has in his possession or custody, or under his control or on his premises, an illicit still; or

(b) makes illicit spirits; or

(c) supplies the means or materials for establishing, maintaining or working an illicit still; or

(d) receives, carries, conveys or conceals or has on his premises, or in his custody or under his control, illicit spirits; or

(e) is found without lawful excuse in a place where distillation is being illegally carried on; or

(f) sells or disposes of illicit spirits; or

(g) purchases illicit spirits; or

(h) makes, sells or has in his possession or custody or control wash or wort intended for distillation by an illicit still,


is guilty of an offence.


Penalty: [80]A fine not exceeding K5,000.00.


  1. The maximum penalty for being in possession of dangerous drug is a fine of up to K1, 000, 000.00 or in the alternative an imprisonment term of up to 40 years and for being in possession of illicit spirit, court fine of up to K5 000.00. It is trite law that the maximum penalty should be reserved for the worst category of cases under each offences. See the Supreme Court judgment in the Matter of Re Maximum Penalty [1984] PNGLR 418.
  2. I note that I have not had the benefit of seeing the recent amendments to the Dangerous Drug Act at the time of my writing of the judgment in the matter of Police v. Kenneth Howigo [2021] DC5081 and others, I now accept as correct the position that District Courts’ Magistrates have the power to impose imprisonment term of more than two (2) years inline with the respective enabling legislation, like the recent amendment to the Dangerous Drug Act. However, most offences carry the maximum of two years imprisonment term, notably those prescribed under the Summary offences Act.
  3. I have also find much difficulty in coming up with a simplified explanation of the ‘modus operandi’ in sentencing as was apparent in my other earlier judgments in the likes of Police v. Kenneth Howigo (Supra), Police v. Kennedy [2021] DC5086 and subsequent others that followed. My take on sentencing was more rhetoric rather than having meaningful content. I now wish to narrow the narrative to one that is not only simple but meaningful with content.

SENTENCING PRINCIPLES


  1. I must say at the outset (as alluded to above) that sentencing is not an easy task, there is present a lot of considerations on several fronts. It is therefore important to clearly identify the purpose one needs to achieve before embarking on this exercise. Case precedents have met this challenge overtime, out of the many I adopt and apply as relevant Her Honor T. Ganaii’s remarks (as borrowed from earlier case precedents) in The State v. Paya (No.2) [2021] N9363 at paragraph 35:

“The purpose for sentencing are to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender and to recognize the harm done to the victim, the community and the State....”

  1. To achieve a particular purpose the sentence impose must fit the crime. There must be a balance between the corrective measure and the seriousness of the criminal conduct. Courts’ commonly referred to it as the principle of proportionality. This is an important consideration within the sentencing exercise as was emphasized by His Honor, Narokobi J in State v. Kaboanga [2020] N8634, paragraph 15:

“Ultimately, what is important is described as the principle of proportionality. The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient (State v. Kiaro (2020) N8610)”


  1. To achieve proportionality in sentencing, it is fundamental to identify and outline factors within the whole circumstances of the case that either aggravate or mitigate the criminal conduct. Generally, this factors will be taken into account (together with others) when determining the appropriate sentence, but as to what weight is given to these factors is in the discretion of the courts. I adopt and apply as relevant the views and cases relied on by my brother Magistrate Ore in his judgment in Police v. Lasu [2022] DC8030 at paragraphs 17 and 18:

“Sentencing is a discretionary matter for the Court. There are numerous case laws that dwell into this discretionary power that is vested in Courts. Some of these cases include Vagi Gau v Ken Kone Eava [1976] PNGLR 485; Police v Koim [2022] PGDC 6; DC8003; Police v Kops [2022] PGDC 7; DC8004 and Bate v Nea [2021] PGDC 165; DC7023.“


“In the exercise of its discretion in deciding an appropriate penalty, the Court must be objective and treat each case according to its own back ground. The background of each case will defer and includes the facts of each case, the mitigating factors and also the aggravating factors. These along with similar recorded cases all play a crucial part in assisting the Court to determine an appropriate penalty”

  1. His Worship Ore, in my view was correct to emphasis the importance of identifying a mid-point as the proper starting point, the approach he formulated in Police v. Lasu (supra) conforms with the practices of the our District Courts. I agree with the following, his observations at paragraph 26:

“In many National Court and District Court cases, the proper starting points for any given offences where an offender had pleaded guilty is the midpoint of the penalty. Some of these cases include State v Mavung [2012] PGNC 255; N4898; Police v Koim [2022] PGDC 6; DC8003; Police v Kops [2022] PGDC 7; DC8004 and Bate v Nea [2021] PGDC 165; DC7023.”

  1. The courts’ discretion is used to either impose a sentence higher or lower than the midpoint. How then does the court go about doing this? I have had the benefit of reading the judgment of brother Magistrate S. Tanei who in his Judgment in Police v. Laiko [2021] DC5076, re-affirmed what was earlier adopted by his Worship Komia in Police v. David [2021] DC5056 and applied as proper the use of steps as checklist to pick out relevant factors within the whole case spectrum as a guide to reach an appropriate penalty proportionate to the crime.
  2. I adopt this approach with slight adjustment and outline the following as my checklist:
    1. What is the mid-point of the prescribe penalties;
    2. What are the factors in aggravation and mitigation;
    1. What are some other consideration and their weight either for or against the offender;
    1. What are the relevant guidelines to follow in reaching an appropriate sentence for the offender and the sentencing trend;
    2. What is the head sentence for each respective offence;
    3. Should the sentence be concurrent or cumulative; and
    4. Should there be any deductions or suspension.
  3. In summary I have only the task of dealing with one issue and that is to decide on what is an appropriate sentence to impose on the offender. I am also reminded of the notion that there is no mathematical formula in sentencing. It is very much dependent on the present factors and relevant considerations all taken into account to reach an appropriate sentence. Prominent of all, are the aggravating and mitigating factors and circumstances of the particular offence. See His Honor Numapo J’s observation at paragraph 6 and 7 in the matter of State v. Eliuda [2022] N9326.

ISSUES AND DISCUSSIONS


  1. As per the above, the only issue for my determination is as follows:
    1. What is the appropriate penalty to impose on the offender as per the circumstances surrounding the commission of the offences?
  2. I will now proceed to deal with the issue by answering the above respective checklist questions which are as follows:
  3. What is the mid-point of the prescribed penalties?

The mid-point is the mid-range of the minimum and maximum penalty of a particular offence. For being in possession of Dangerous Drugs, as per DDA S. 3 (1) (d), a court fine of K500, 000.00 and an imprisonment term of 20 years. As for being in possession of illicit spirit, court fine of K2, 500.00.


  1. What are the factors in Aggravation and Mitigation?
  2. What are some other consideration and their weight for or against the offender?

As was alluded to, a PSR was requested and prepared by Mr. Kasanda of Community Based Corrections Vanimo Office. I have perused the contents and find favorable views and recommendation for the offender. In summary the following points stood out in offender’s favor:


  1. A good reputation in the community of Leitre Village, observations by Hon. Paul Nawari, Ward 10 Councillor, Leitre Village and Martin Akuni, Village Court Magistrate Leitre Village. Both are persons of standing within the community offender resides in;
  2. Offender is portrayed as a hard working person who goes out his own way to look after his wife and children. He is involve in selling flex cards and other market goods in his community;
  1. He is a law abiding and active member of Leitre Village community; and
  1. He is recommended as a suitable candidate for probation.
  1. What are the relevant guidelines to follow in reaching an appropriate sentence for the offender and the sentencing trend?

Sentencing guidelines within the District Courts’ jurisdiction has not really been given much emphasis unlike the National Courts. I share the views as portrayed by His Worship Kaumi (as he then was) in Police v. Marley [2011] DC2029 per paragraph 21. His Worship correctly stated in his observations that there is a need as well for cases to be published so the sentences and guidelines can be reviewed by the courts. With that he proceeded to lay out a guideline which I noted with approval as relevant for my adaptation. As per His Worship’s wisdom, I will review his guidelines and formulate one that is suitable for the matter before me. The following is what I considered to be the guidelines:


For being in possession of Dangerous Drugs:


I will outline the different types of dangerous drugs in classes and also describe the different stages in which dealing of drugs fall under and work out the proposed penalty range for each.


Class A Drugs


Those dangerous drugs native to Papua New Guinea, of which the most common is Marijuana Plant. Under this heading, the different categories of dealing with this substance and their proposed sentencing ranges are:


Cultivation - For offenders under this category, I consider court fines of up to K50, 000.00 and in the alternative a jail term of up to 5 years;


Storage/Distribution/Smuggling – For offenders under this category, I consider court fines of up to K100, 000 and in the alternative a jail term of up to 10 years; and


Consumption/Use – For offenders under this category, I consider fines of up to K1000.00 and in default a jail term of up to 2 years.


Class B Drugs


Those dangerous drugs manufactured in Papua New Guinea with ingredients sourced from external sources, for instance, Methamphetamine (crystal ice). Under this heading, the different categories of dealing with this substance and their proposed sentencing ranges are:


Production/Manufacturing - For offenders under this category, I consider court fines of up to K1, 000, 000.00 and in the alternative a jail term of up to 40 years;


Storage/Distribution/Smuggling out – For offenders under this category, I consider court fines of up to K500, 000.00 and in the alternative a jail term of up to 20 years; and


Consumption/Use – For offenders under this category, I consider fines of up to K5000.00 and in default a jail term of up to 5 years.


Class C Drugs


Those dangerous drugs produced externally and smuggled into Papua New Guinea for local consumption or to feed external supply chain through smuggling, for instance, Cocaine (Coke). Under this heading, the different categories of dealing with this substance and their proposed sentencing ranges are:


Smuggling in/ Movement of drugs- For offenders under this category, I consider court fines of up to K1, 000, 000.00 and in the alternative a jail term of up to 40 years;


Storage/Distribution/Smuggling out – For offenders under this category, I consider court fines of up to K500, 000 and in the alternative a jail term of up to 20 years; and


Consumption/Use – For offenders under this category, I consider fines of up to K10, 000.00 and in default a jail term of up to 15 years.


For being in Possession of Illicit Spirit

Manufacture/Production – A court fine of up to K5000.00, in default a jail term pursuant to DCA S. 201 (see Police v. Lasu (supra));

Storage/Distribution – A court fine of up to K5000.00, in default a jail term pursuant to DCA S. 201; and

Consumption – A court fine of up to K1000.00, in default a jail term pursuant to DCA S. 201.

I proposed the above range for ease of identifying a suitable midpoint avoiding a midpoint to high up the sentencing scale, for instance the midpoint worked out from the maximum and minimum will still be too high for very simple offending behavior. From there the following considerations in my view are relevant to determine a sentence above or below the midpoint:

  1. Whether the guilty plea was achieved through trial or admission;
  2. Is the offender a repeat offender;
  3. The quantity and type of dangerous drugs or illicit spirit in his possession and their street value;
  4. The age of the offender, his personal and family background;
  5. Whether offender has shown genuine remorse and a willingness to change;
  6. Demeanor of the offender; and
  7. What does the community say about the offender?

I will now proceed to identify and list published cases of offenders charged with similar offences to figure out the trend of sentences over the years. The following identified cases are of relevance:

  1. Police v. Jaron [2021] DC5073, per His Worship Komia – the offender was found guilty after trial for being in possession of 20 packs of marijuana with a street value of K20. There was also no remorse shown by the offender who through his demeanor appeared to have lied before the court. He was sentenced to an imprisonment term of 5 months in hard labor;
  2. Police v. Laiko [2021] DC5076, per His Worship Tanei – The offender a 30 year old male pleaded guilty to having in his possession 31 rolls of marijuana with a street value of K62. The offender showed no genuine remorse. He was sentenced to an imprisonment term of 6 months in hard labor with deductions;
  1. Police v. Peter [2016] DC2073, per His Worship Kalandi – Both offenders, one being a 23 years old and the a 25 years old pleaded guilty to jointly having in their possession 1 roll of marijuana with a street value of K1. Both offenders showed no remorse. Both were sentenced to serve 4 months each in hard labor with deductions;
  1. Police v. Manam [2011] DC2035, per His Worship Kaumi (as he then was) – The offender a 26 years old male pleaded guilty to having in his possession 1x 500ml container of illicit spirit namely ‘Yawa’. The defendant showed genuine remorse and a court fine of K300 with a default imprisonment term of 3 months was imposed on him; and
  2. State v. Gabour [2007] DC561, per His Worship Singomat (as he was then) – offender pleaded guilty to 3 charges, one being damage to property, unlawful assault and being in possession of illicit spirit. Taking all factors into consideration, a sentence of K200 court fine with a default imprisonment term of 4 months for being in possession of illicit spirit. For the other two offences orders for restitution and compensation were imposed.

I remind myself that I am using the 2021 amended provision to the DDA S. 3, which prescribed an increased in the penalties. The above cases were dealt with under the repealed provision that sets a minimum penalty of 3 months imprisonment and maximum of up to 2 years. No other sentencing options were provided, however, there were a few decisions where DCA S. 132 (1) was used to circumvent this restrictive provision by imposing other non-custodial options of sentencing. See Police v. Marly (supra). Therefore the sentencing trend is jail terms of no more than 6 months for offenders in possession of less than 40 rolls of marijuana. As for being in possession of illicit spirit no more than K500 court fine.

  1. What is the head sentence for each respective offence?

I consider a head sentence of 3 months imprisonment term for the offence of being in possession of dangerous drugs, for the 5x rolls of marijuana and court fine of K400 for the offence of being in possession of 4x 500ml container of illicit spirit (steam).


  1. Should the sentence be concurrent or cumulative?

With reference to my earlier decision in the matter of Police v. Howigo (supra), concurrent sentencing approach is relevant under the circumstances of the current matter.


  1. Should there be any deductions or suspension?

The circumstances of the case weighs heavily towards a non-custodial sentence rather than a custodial sentence. As per Howigo’s case, court fines with period of probation considered appropriate under the circumstances.


RULING ON WHAT IS CONSIDERED TO BE AN APPROPRIATE SENTENCE


  1. As per the above, it is clear that the factors in mitigation outweigh those in aggravation. The factors in mitigation are further corroborated by the favorable community views given by the local community leaders. Offender’s possession of the dangerous drugs is classified under Class A drugs within the consumption or use category. This attracts a penalty range of a fine not more than K1000 and a default term of no more than 2 years. A midpoint from that range would be a court fine of K500 and a default imprisonment term of 1 year. As for being in possession of illicit spirit, his offending behavior placed him within the category of distribution which attracts the range of court fines up to K5000 with a default jail term of 60 days. The midpoint from that range will be a court fine of K2, 500.00 and a default jail term of 30 days.
  2. Other positive factors in offender’s favor are the fact that the guilty pleas where achieved through admission, he is not a repeat offender, the dangerous drug and illicit spirit in his possession were not considered to be of large quantity, the offender a middle age male is portrayed as a good husband and father to his children, he is also a good member of his local community, he showed genuine remorse and through his demeanor I am confident that he is not an addict and will change for the better. To top it all off, his community and their local leadership are willing to help him through the imposition of a community based sentence.
  3. I am satisfied given the above that a head sentence of 3 months imprisonment term concurrently for both offences is appropriate under the circumstances. As per the above deliberations a non-custodial sentence through the imposition of court fine and a term of probation will achieve a proportionate outcome. That is, to ensure the offender is deterred from reoffending and passing the responsibility of rehabilitating the offender back to his community by getting his local leadership involved. This will in my view protect his community from such criminal behavior in the long run.
  4. I hereby issue the following orders to conclude this matter:

COURT ORDER:


  1. The defendant is found guilty as charged for 1x count of being in possession of dangerous drug and 1x count for being in possession of illicit spirit;
  2. Conviction not entered with defendant sentenced concurrently to 3 months imprisonment term, of which the whole will be suspended and replaced with orders for the defendant to pay K700 in court fines no later than 25th March 2022, in default 3 months jail term to be served;
  1. Upon payment of K700, defendant is ordered to be placed on Probation for a period of 6 months with work orders for him to perform free community work 4 hours daily, one day in each week within that period;
  1. Mr. Kasanda from Vanimo Community Based Corrections Office is directed to liaise with the Ward Member of Leitre Village and the local Village Court Magistrate to ensure Defendant effectively serves his probation term in the village where he will be require to remain through his probation period;
  2. Defendant is committed to prison awaiting the payment of his court fine and his release will only be effected upon production of the official receipt to the court clerk within the allowable timeframe; and
  3. Breach proceedings to follow upon non-compliance.

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