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Papua New Guinea District Court |
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]
DCR 374/2011
BETWEEN
POLICE
Informant
AND
NATHAN CASPER AULEM
Defendant
Madang: J.Kaumi
2011:19th, 21st,26th April, 04th, 9th, 12th May
SUMMARY-Offence of Knowingly in Possession of Dangerous Drugs-Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d).
PRACTICE AND PROCEDURE-Knowingly Possessing Dangerous Drug-Mandatory Minimum Penalty-Three months-Whether statutory powers of discretionary disposition available under District Courts Act 1963 Cht 40, Section 132 (1)-Dangerous Drugs Act,1952, Cht 224-Power to give alternative penalty not excluded.
PRACTICE AND PROCEDURE-Mandatory Minimum Penalty of Three Months, Section 3 (1) (d) Dangerous Drug Act-No discretion to impose lesser sentence-But court has discretionary dispositive power to suspend all or part of the Minimum sentence and then give alternative penalty-Section 132 (1) District Courts Act, Cht 40.
PRACTICE AND PROCEDURE- Sections 132 (1) and 200 (3) are complimentary and of mutual benefit-District Courts Act, Cht.40.
PRACTICE AND PROCEDURE- There are seven factors in Section.132 (1), one or more of which must be established before the court can impose the punishment provided by that section. These factors are Character, Antecedents, Age, Health, Mental Health, Trivial Nature and Extenuating Circumstances-District Courts Act 1963 Cht 40
A youthful student pleaded guilty to being knowingly in possession of a dangerous drug, Cannabis Sativa and matter was for sentence.
.Held:
(1). Section 132 subsection (1) is a provision that gives a District Court magistrate discretionary dispositive powers where a person
is charged with a simple offence, and if the charge is proven in certain circumstances, without proceeding to conviction, to dismiss
the charge or give a conditional discharge;
(2). Section 132 subsection(2) is a provision that unambiguously relates to property offences or offences which result in damage to property and essentially provides for the purpose of restitution;
(3). Section 132 subs (1) is not subject to sect 132 subs (2) either expressly or by implication and the wording of subs (1) is precise and unambiguous, clear in meaning and does not include the words "Subject to" at its beginning so as to render it subject to the dictates of subsection (2).
(4). It was settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the later are "such as by their necessity to import a contradiction". Laho Kerekere v Robin Miria [1983] PNGLR 277 Amet.J (as he then was)
(5). The words of sect 200(2) are precise and unambiguous that in the circumstances prescribed in this subsection a court is empowered to impose the penalty of only a fine of K200.00 and no other sentencing option is not provided for nor can be exercised.
(6). Sect 200 subsection (3) qualifies the powers of the District Court under sect 200 subs (2) to the effect that those discretionary dispositive powers to impose the penalty of a fine do not apply in the case of an offence for which a minimum sentence of imprisonment is prescribed.(emphasis mine)
(7). The effect of sect 200 (3) is a double edged sword, meaning it cuts both ways, on one hand it only prohibits the court from imposing a fine as a sentencing option as provided by sect 200 (2) whilst on the other by default it implicitly does not preclude a court from imposing other sentencing options such as a Good Behaviour Bond, Community work or Probation.
(8). I consider sections 132 (1) and 200 (3) to be complimentary and of mutual benefit.
(9). The words of sect 200 (3) "such as by their necessity do not import a contradiction" of the earlier sect 132 (1) and corollary do not make the discretionary dispositive powers of a sentencing magistrate under sect 132 (1) unavailable when contemplating sentence under sect 3 (1) (d).
(10). A mandatory minimum penalty does not deprive a District Court of its discretionary dispositive powers given by sect 132 (1) and its application is permissible if the court does not proceed to the stage of conviction when contemplating sentence for drug offenders under sect 3 (1) (d) of the DDA, Cht No.228.
(11). That the minimum penalty does not deprive the Court of its power to give just and fair consideration to each case on its own merits and impose sentence as the justice of the case requires but not below the minimum. State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
(12). That there are seven factors in sect.138 (predecessor to sect.132 (1), one or more of which must be established before the court can impose the punishment provided by that section. These factors are Character, Antecedents, Age, Health, Mental Health, Trivial Nature and Extenuating Circumstances. Nup v Hambuga [1984]PNGLR 206 N478(M) (2 August 1984) Bredmeyer. J
Cases cited
Makin v. Kelly [1963] P.N.G.L.R.127
Henderson v. Blackwell [1973] P.N.G.L.R 223
Anna Wemay v Kepas Tumdual [1978] PNGLR 173
PLAR No.1 of 1980 [1980] PNGLR 326 (10/10/80
Richard Cheong v Vincent Nemil [1981] PNGLR 472 (13)
Laho Kerekere v Robin Miria [1983] PNGLR 277 Amet.J
Nup v Hambuga [1984]PNGLR 206 N478(M) (2 August 1984)
Supreme Court case of SCR No 6 of 1984; Re Provocation
Acting Public Prosecutor v Don Hale SC564
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
State v Michael Kamban Mani (21/05/02) N2246
Doreen Lipirin vs. The State (2004) SC673
The State v Raka Benson (2006) CR 447&450
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J )
Overseas Cases
Goodwin v Philips (1908) 7 C.L.R at 10
Healey v Festini [1958] V.R at 225; [1958] VicRp 36; [1958] A.L.R. 648. Gavan Duffy J
R v Danes [1965] Qd R 338
Cobiac v Liddy [1969] HCA 26; (1969) 119 C.L.R. 257
C & J Clark Ltd v Inland Revenue Commissioners [1973] 2 ALL.ER 513
Reference
Pearce on Statutory Interpretation at 94 par: 142
'Sentences passed on Dangerous Drug Offenders', Magistrates Bi-Annual Judicial Conference in Lae, May 2009, Martin Ipang
Legislation
Constitution of PNG
District Court Act, Chapter 40
Summary Offences Act, Chapter 264
Dangerous Drug Act Chapter 228
Abbreviations
The following abbreviations appear in the judgment
CBC Community Based Corrections
CHT Chapter
C.L.R Commonwealth Law Report
DCA District Courts Act
DDA Dangerous Drug 1952 Act Chapter 228
GBB Good Behavior Bond
J Justice
NC National Court
PNGLR Papua New Guinea Law Reports
PSR Pre Sentence Report
S C Supreme Court
SCR Supreme Court Reference
SECT Section
SEN.SGT Senior Sergeant
SOA Summary Offences Act
ST State
SUBS Subsection
V Versus
VR Victorian Reports
Counsel
Senior Sergeant Suamani for the Police Prosecution.
Defendant in person.
1.INTRODUCTION
1. Kaumi. M. Nathan Aulem, you will now be sentenced for an offence contrary to Section 3. 1. (d) of the Dangerous Drug Act ( Hereinafter referred to as DDA)
2. ARRAIGNMENT
2. When I arraigned you, you pleaded guilty and after confirming the brief facts with you I found you guilty as charged but did not proceed to enter a conviction against you.
3. FACTS
3. That on the 15th of April 2011, at around 5pm, the defendant now before the Court namely Nathan Aulem was at the Amele bus stop in Madang town, Madang Province.
4. On the mentioned date, time and place the defendant was sighted by the Police Patrol Unit. The defendant was sitting at the bus stop with some youths and when Police saw them, Police stopped and searched the defendant now before the Court plus the others.
5. Upon searching the defendant, Police confiscated one and half one kina packed marijuana from the defendant's pocket. So Police put the defendant on the Police patrol unit car and took him to Jomba Police Station.
4. ANTECEDENTS
6. Your Antecedent Report provided to Court is as follows;-
a. You are a Grade 12 student at the Tusbab Secondary School here in Madang and are 20 years of age and come from Jambitanget village,Wosera Sub Province of the East Sepik Province; that you have no prior convictions and further that you come from a broken family and are currently living with your uncle at Tanen hamlet, Amele.
5. ALLOCATUS
7. In your address on sentence you stated the followed, " As a student ' I say sorry, na mi ekseptim wanem sas oli sasim mi long em, mi tok sori long wanem rong mi bin mekim pinis, mi rong long ai blong kot olsem na mi nonap mekim dispel ken na mi askim kot long marimari na givim mi Good Behaviour Bond so mi ken pinisim dispela academic yia", and because of your plea for leniency in your allocatus and in light of this, the Court requested a Pre-Sentence Report ( Hereinafter referred to as PSR) which was duly prepared by the Community Based Corrections Office ( Hereinafter referred to as CBC) here in Madang and which I will refer to in the course of my judgment.
6. SUBMISSION BY STATE
8. Sen.Sgt Suamani made a lengthy verbal submission and a paraphrased summary of his response follows:-
(a.) Prosecution had had the benefit of reading the PSR;
(b.) The charge for which the defendant had pleaded guilty to was serious in nature;
(c.) The conveying, selling and consumption of dangerous drugs in the urban and rural areas of this province was frequently happening;
(d.) Students like the defendant were no exception to this and as a student he should have known very well that conveying, possession and consumption of a dangerous drug like cannabis or marijuana is prohibited by law;
(e.) Prosecution records show that dangerous drug related offences are prevalent offences that appear in court every working day of the week;
(f.) The penalty provision for an offence contrary to Section 3(1)(d) ( Hereinafter referred to as Sect) is imprisonment for a term of not less than three months and not exceeding two years;
(g.) That sect 200 sub 3 ( Hereinafter referred to as Subs) of the District Court Act (Hereinafter referred to as DCA) provides that the provision for mitigation of payment by Court under subsection 2 is not applicable in the case of an offence for which a minimum sentence of imprisonment is prescribed;
(h.) That Sect 16 of the Probation Act does not apply to offences for which there is a mandatory minimum sentence provided for by any law;
(i.) That Sect 200 subsect 3 overpowers(word used by Sen.Sgt Suamani) sect 132 so as to prohibit the Court from imposing any other sentence than that of imprisonment;
(j.) That sect 3 (1) (d) does not differentiate between students and any other like offenders but treats them alike and therefore for the reasons above the Court must impose the mandatory minimum penalty.
7. OTHER MATTERS OF FACT
9. As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State [1], (Jalina J; Mogish J Cannings.J )
8. PRELIMINARY ISSUE
10. The defendant pleaded guilty to knowingly having in his possession one and a half K1:00 pack of marijuana contrary to Sect 3(1) (d) of the DDA 1952 Chapter 228 (Hereinafter referred to as Cht). The main thrust of Sen.Sgt Suamani's response was to the effect that this Court did not have any discretion in sentencing other than to impose the mandatory minimum penalty as prescribed under sect 3(1) (d) of the DDA which is imprisonment for three months.
11. The preliminary issue that arises here is:-
DOES A MANDATORY MINIMUM PENALTY DEPRIVE A DISTRICT COURT OF ITS DISCRETIONARY DISPOSITIVE POWERS ESPECIALLY WHEN CONTEMPLATING SENTENCE FOR DRUG OFFENDERS UNDER THE DDA, CHT NO. 228?
12. Therefore the questions to be asked in this matter which highlight the preliminary issue are:-
(a) Are the discretionary dispositive powers of the DCA under Sect 132 subs (1) subject to the operation of Sect 132 Subs (2) and therefore by implication rendering them unavailable. If the answer is Yes, then the court is deemed to have no such powers. If the answer is No, then the next question should be addressed.
(b) Are the discretionary dispositive powers of a sentencing magistrate under Sect 132 (1) not available to due to the operation of Sect 200 subs (3) of the DCA? If the answer is No, then the magistrate cannot use the discretionary dispositive powers available under Sect 132 (1). If the answer is Yes, then the magistrate can proceed to the decision making process to arrive at a sentence that is fair and just based on the peculiar merits of the case.
13. With regards to Question (a) there are differing views amongst the magistracy on the application of Sect 132 (1) as a consequence of the operation of Sect 132 Subs (2).
14. One view being held and being propagated is that subs (2) of Sect 132 has an overriding effect over subsection (1) thereby making it difficult for dangerous drug offenders to be considered for conditional release under Sect 132 subs (1). The opposing view is that a sentencing magistrate has discretion under Sect 132 subs (1). Therefore I have labored to clarify my view on the issue and consequentially arriving at a just and fair sentence.
RELEVANT LAW
15. There are certain pieces of legislations that are relevant to the resolution of the issue and must be considered and are as follows:-
DANGEROUS DRUGS ACT 1952 CHAPTER 228.
Section 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.
Penalty: Imprisonment for a term of not less than three months and not exceeding two years.
DISTRICT COURT ACT
Section 132. CONDITIONAL RELEASE, ETC.
(1) Where a person is charged before a Court with a simple offence or an indictable offence triable summarily, and the Court thinks that the charge is proved but is of opinion that, having regard to–
(a) the character, antecedents, age, health or mental condition of the person charged; or
(b) the trivial nature of the offence; or
(c) the extenuating circumstances under which the offence was committed,
it is inexpedient to inflict punishment, or other than a nominal punishment or that it is expedient to release the offender on probation, the Court may, without proceeding to conviction, make an order–
(d) dismissing the charge; or
(e) discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as is specified in the order.
(2) An order made under Subsection (1) shall, for the purpose of–
(a) revesting or restoring stolen property; and
(b) enabling the Court to make orders as to the restitution or delivery of property to the owner; and
(c) the payment of money on or in connection with that restitution or delivery; and
(d) an appeal against conviction,
have the same effect as a conviction
Section 200. MITIGATION OF PAYMENT BY COURT.
(2) Subject to Subsection (3), where a Court, under any law, may impose a penalty for an offence punishable on summary conviction but has no power to impose a fine for that offence, it may impose a fine not exceeding K200.00, but not being such an amount as would subject the offender, in default of payment of the fine, to a term of imprisonment longer than that to which he is liable under the first-mentioned law, if it considers that the justice of the case would be met better by a fine than by imprisonment.
(3) Subsection (2) does not apply in the case of an offence for which a minimum sentence of imprisonment is prescribed.
Question (a) Are the discretionary dispositive powers of the District Court under Section 132 subsection (1) subject to the operation of Section 132 Subsection (2) and therefore by implication rendering them unavailable. If the answer is Yes, then the court is deemed to have no such powers. If the answer is No, then the next question should be addressed.
HOW IS SECTION.132 (1) AND (2) TO BE APPLIED?
16. Because of the differing opinions as to the application of sect 132 (1) and (2) the threshold question to ask is how sect.132 (1) and (2) to be applied. This entails firstly understanding what both sect.132 (1) and (2) mean.
17. There are various aids to construction that can be employed in the interpretation of statutory provisions. The issue of statutory interpretation has been discussed in many cases in this country and some of them are, Supreme Court case of SCR No 6 of 1984; Re Provocation [2], PLAR No.1 of 1980 [3], R v Danes [4] [1965] Qd R 338 and Anna Wemay v Kepas Tumdual [5] [1978] where the Court held that the statute must be construed according to its express intention. If the words are precise and unambiguous, no more is necessary than to expound them in their ordinary and natural sense-without recourse to outside aids to interpretation.
18. The above authorities are unambiguous and I see no need to stress them any further suffice to say that the words of these two provisions are precise and unambiguous and therefore I do not have to recourse to outside aids to interpret them and need only to expound the ordinary and natural sense of the words of sect.132 (1) and (2) so corollary they must be construed according to their express intention.
19. It is therefore my view that:-
(a) firstly, Sect 132 subs (1) is a provision gives a District Court magistrate discretionary dispositive powers where a person is charged with a simple offence, and if the charge is proven in certain circumstances, without proceeding to conviction, to dismiss the charge or give a conditional discharge;
(b) secondly, Sect 132 (2) is a provision that unambiguously relates to property offences or offences which result in damage to property and essentially provides for the purpose of restitution;
(c) thirdly, Sect 132 subs (1) is not subject to sect 132 subs (2) either expressly or by implication. It is my humble view that rather than overriding subs (1), subs (2) is an extension of subs (1) for the following reasons:-
(i) subs (2) extends the operation of subs (1) insofar as property offences are concerned and allows the sentencing magistrate the necessary discretionary dispositive powers for the purposes of restitution;
(ii) the wording of subs (1) is precise and unambiguous, clear in meaning and does not include the words "Subject to" at its beginning so as to render it subject to the dictates of subsection (2). The notion of subjection of subsections is discussed in the case of C & J Clark Ltd v Inland Revenue Commissioners [6]where the Court held that the Court in deliberating the reading of the provisions of an Act subject to other provisions of the same Act in particular the meaning of the words "subject to" Megarty,J said at p.520, "In my judgment, the phrase 'subject to' is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is a collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision".(emphasis mine)
(iii) I am certain that had it been the intention of the legislature to curtail and make the discretionary dispositive power of a magistrate under sect 132 subs (1) subject to the dictates of sect 132 subs (2) its draftsman would have included the phrase "Subject to" at the start of the wording of subsection (1).
(iv) It is therefore erroneous to argue in the absence of the expression "Subject to" that sect 132 subs (1) is subject to subs (2).Indeed to continue to argue and propagate this fallacy is not only abstruse and would certainly be pernicious to the interests of justice. It is akin to trying to make a case out of thin air and no amount of legalistic rhetoric will change this. Certainly the magistracy is not the legislature and any attempt to interpret legislation must be done bearing in mind all the rules of construction.
20. I answer Question (a) in the negative and now proceed to answer Question (b).
(b) Are the discretionary dispositive powers of a sentencing magistrate under Sect 132 (1) not available to due to the operation of Sect 200 subs (3) of the DCA? If the answer is Yes, then the magistrate cannot use the discretionary dispositive powers available under Sect 132 (1). If the answer is No, then the magistrate can proceed to the decision making process to arrive at a sentence that is fair and just based on the peculiar merits of the case.
21. The main thrust of Sen.Sgt Suamani 's submission sets the stage for the deliberation of the legal maxim, "lages posterious priores contrarias abrogant", later Acts repeal earlier inconsistent Acts.
22. In the matter before me sect 200 repealed sect 206 in 1983 and sect 132 (1) is an earlier and inconsistent provision of the same act and going by the said legal maxim the latter would be deemed to be inapplicable with regard to mandatory minimum penalty offences.
23. However its application is not automatic as Pearce on Statutory Interpretation at 94 par:142 referred to Barton.J in Goodwin v Philips [7] at 10 stated:
"The court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e. the repeal must, if not express, flow from necessary implication".
24. In the National Court case of Laho Kerekere v Robin Miria [8] Amet.J (as he then was) stated that it was settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the later are "such as by their necessity to import a contradiction".
25. Therefore to determine whether sect 200 (3) has taken away the discretionary dispositive power given by sect 132 (1), it is imperative that the words of both provisions should be compared, to see whether they compliment each other or whether sect 200 (3) has, by implication (to that extent) abrogated sect 132 (1).
26. Therefore I pose the following questions along the lines of questioning by Gavan Duffy J in Healey v Festini [9] iin a similar case as:-
27. Sect 200 (2) of the DCA in essence empowers a court to impose the penalty of a fine of K200.00 when a penalty of imprisonment is the only penalty provided by a law, if it considers that the justice of the case would be met better by a fine than by imprisonment.
28. The words of sect 200(2) are precise and unambiguous that in the circumstances prescribed in this subsection a court is empowered to impose the penalty of only a fine of K200.00 and no other sentencing option is not provided for nor can be exercised.
29. Sect 200 subsection (3) qualifies the powers of the District Court under sect 200 subs (2) to the effect that those discretionary dispositive powers to impose the penalty of a fine do not apply in the case of an offence for which a minimum sentence of imprisonment is prescribed.(emphasis mine)
30. The effect of sect 200 (3) is a double edged sword, meaning it cuts both ways, on one hand it only prohibits the court from imposing a fine as a sentencing option as provided by sect 200 (2) whilst on the other by default it implicitly does not preclude a court from imposing other sentencing options such as a Good Behaviour Bond (Hereinafter referred to as GBB), Community work or Probation.
31. I am certain that had it been the legislative intent of Parliament to curtail and make the discretionary dispositive power of a magistrate under sect 132 subs (1) subject to the dictates of sect 200 subsect (3) in (Amendment by No. 34 of 1983, s.2) its draftsperson would have included specific express provisions repealing sect 132 (1) and further he/she would have been aware of pre Independence court decisions of Henderson v. Blackwell [10] which relied on the Australian High Court authority of Cobiac v. Liddy [11], Makin v. Kelly [12] and Richard Cheong v. Vincent Nemil [13] which had all held sect 132 (1) to be available to the District courts in similar cases.
32. I consider sections 132 (1) and 200 (3) complimentary in application and of mutual benefit.
33. Another factor which I also consider is supportive of my position was the view held in Healey v Festini [14] [1958] V.R at 225 in a similar case of where provisions of a later Act appeared to repeal an earlier inconsistent Act. That sect.220 and sect. 244 of the Customs Ordinance 1957 did not exclude the general powers granted to a court under sect. 207(2) (the predecessor to the present sect. 206(2)) of the District Courts Ordinance, as the substitution of a fine for a term of imprisonment was not a reduction of the penalty of imprisonment. It merely substituted one form of penalty for another, and that sect. 244 did not purport to deal with reducing in severity a particular penalty, but merely prevented the imposition of a period of less than three months imprisonment when a prison sentence was considered more appropriate.
34. In the immediate matter I find that sect.200 (3) does not exclude the discretionary dispositive powers granted to the court under sect.132 (1) to substitute a non-custodial term of a GBB, Community Work or Probation for a term of imprisonment and further that it does not reduce the severity of the penalty of imprisonment when such a term of imprisonment is considered more appropriate.
35. The above discussion of the law leads me to answer the four questions in the negative and conclude that the words of sect 200 (3) "such as by their necessity do not import a contradiction" of sect 132 (1) and corollary do not make the discretionary dispositive powers of a sentencing magistrate under sect 132 (1) unavailable when contemplating sentence under sect 3 (1) (d).
36. I therefore answer Question (b) in the negative and I therefore answer the Preliminary Issue in the negative, that a mandatory minimum penalty does not deprive a District Court of its discretionary dispositive powers given by sect 132 (1) and its application insofar as the court does not proceed to the stage of conviction especially when contemplating sentence for drug offenders under sect 3 (1) (d) of the DDA, Cht No.228.
37. I now proceed to address the main issue and that is what the appropriate sentence in this matter is.
9. DECISION MAKING PROCESS
38. To determine the appropriate sentence I will adopt Canning's. J's decision making process in The St v Raka Benson [15] and that is;-
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 PRESCRIBED BY PARLIAMENT?
39. The offender has been found guilty of an offence contrary to sect 3(1) (d) of the Dangerous Drug Act.
Section 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.
Penalty: Imprisonment for a term of not less than three months and not exceeding two years.
STEP 2: WHAT IS THE PROPER STARTING POINT?
40. Sentencing guidelines are handed down by the Supreme Court occasionally whilst in the process of deliberating the on criminal appeals or reviews. These guidelines are often coined as a starting point for various types of cases. The National Court then applies those starting point in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances.
41. In the present case I have been unable to locate a suitable precedent so I will use the mandatory minimum penalty of 3 months as the starting point for the offence.
STEP 3: WHAT ARE THE TYPE OF SENTENCING GUIDELINES AND TRENDS PER JUDGEMENT FOR THIS TYPE OF OFFENCE?
SENTENCING TRENDS
42. I am grateful to Ipang.M (as he then was) for the data he collated in his paper 'Sentences passed on Dangerous Drug Offenders' which he presented at the Magistrates Bi-Annual Judicial Conference in Lae in May 2009 in which he provides statistics that outline the sentencing trends and are of some assistance.
43. From the statistics obtained from three District Courts for the period 2005 to 2009 and that of the Madang District Court in 2009 it is quite apparent that the sentencing trend has been more towards imprisonment with a total of 222. This has been followed by Community work with 30, Fines with 14, Probation with 12, Discharge with 6 and GBB with 4.
SENTENCING GUIDELINES
44. I was unable to ascertain from the above cases a guideline as to what are appropriate considerations to be taken on board in arriving at these sentences for this type of offence and there is need for such guidelines for purposes of uniformity and consistency of sentence.
45. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice two National Court sentencing guidelines, firstly, His Honor Bredmeyer. J's guidelines on sentencing in Nup v Hambuga [16] where he held that section 138 (predecessor to section 132 (1) remains open to the District Court despite the minimum penalties legislation. By way of contrast sect.206 of the DCA, another mitigating section, by express amendment does not apply to minimum penalties: see District Courts (Amendment) Act No. 34 of 1983.That there are seven factors in sect.138 one or more of which must be established before the court can impose the punishment provided by that section. These factors are Character, Antecedents, Age, Health, Mental Health, Trivial Nature and Extenuating Circumstances.
46. Secondly, His Honor Kandakasi. J's guidelines on sentencing in St v Michael Kamban Mani [17] that:-
(a). The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration;
(b). Guilty pleas and the offender being a first time offender and the existence of "such good "factors operate in the offender's mitigation and sentence lower than the prescribed maximum may be imposed.
(c). The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.
(d). The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.
STEP 4: WHAT ARE THE PARTICULAR CIRCUMSTANCES IN WHICH YOU COMMITED THE OFFENCE FROM WHICH COME THE FACTORS IN YOUR AGGRAVATION AS WELL AS THOSE IN YOUR MITIGATION?
47. Going by Cannings.J in Raka Benson [18] I have adopted his technique which I consider not only relevant but also pertinent given the lack or absence of relevant guidelines in our jurisdiction and apply to them the seven factors outlined by Bredmeyer.J in Nup v Hambuga [19]
48. These considerations are as follows:
TABLE 1: CONSIDERATIONS
1. Was only a small amount of dangerous drug involved? Yes, only one and a half roll of cannabis
2. Did the offender's actions have only a small adverse effect on other persons eg: the members of his school and his community? Yes, it is only his immediate family who are concerned about the future of his education.
3. Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? Yes, the offence took place over a short period.
4. Did the offender give himself up before being detected? No, because he did not know the drug was in his possession
5. Has the defendant pleaded guilty? Yes, he pleaded guilty
6. Has the offender genuinely expressed remorse? Yes, he has expressed genuine remorse
7. Is this the defendant's first offence? Yes, the defendant has no priors
8. Has the defendant been a good member of his school and the community in which he lives? Yes, the defendant has good community relations with other students and staff at his school and with elderly members of his community.
9. Is the defendant a person of good health both physically and mentally? Yes, he was of good health both physically and mentally upon physical presentation to the CBC officer at the time of the interview.
10. Has the offender and his family already paid a heavy price for his actions? Yes, the defendant comes from a broken home and this offence has caused his parents and his stepfather great anxiety and has drawn them together to assist him.
11. Can the defendant be regarded as a youthful offender? Yes, he can be regarded as a youthful offender
12. Are there any other circumstances of this particular or the offender that warrant mitigation of the head sentence? Yes.
13. Is this offence not a prevalent one? No, it is a prevalent one
14. 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.
Rationale
49. His Honor Cannings.J' rational behind the above considerations was that they had been framed so that an affirmative (yes) answer to anyone be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will; be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point.
50. His Honor stated however that sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors maybe strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors.
Categorization of the listed considerations
51. There are three sorts of considerations listed:
(a). Numbers 1 to 3 focuses on the circumstances of the possession of the cannabis.
(b). Number 4 to 7 focus on what the offender has done since he committed the crime and how he has conducted himself.
(c). Number 8 to 12 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.
STEP 5: WHAT IS THE STARTING POINT FOR THE HEAD SENTENCE FOR THE OFFENCE?
52. The nature of the sentence for the offence for which the defendant has been found guilty is a mandatory minimum one and for analogy I find assistance for a starting point for such an offence in the National Court matter of State v Inema Yawok [20] where Kirriwom.J in sentencing the accused who pleaded guilty to the charge of escaping from lawful custody contrary to s.139 of the Criminal Code Act ( a mandatory minimum penalty offence of five years imprisonment)stated inter alia that the minimum penalty does not deprive the Court of its power to give just and fair consideration to each case on its own merits and impose sentence as the justice of the case requires but not below the minimum.
53. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment.
54. After weighing all these factors and bearing in mind that there are eleven mitigating factors compared to three aggravating factors, and going by State v Inema Yawok [21] the head sentence should be the starting point of 3 months.
55. The total potential sentence is three months.
STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
56. In consideration of the afore sentencing principles this is an appropriate case in which to consider a suspended sentence.
57. In Acting Public Prosecutor v. Don Hale[22], the S C said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The S C in that case said ""If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19....The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people". To this end I have received a well documented PSR prepared by Mr. Logan Sapush of CBC, Madang and thank him for it and considered its inputs however cannot consider as a sentencing option because of the operation of sect.16 of the Probation Act.
58. It is incumbent upon courts today in the light of stretched national resources i.e. finance, overcrowded prisons etc that in appropriate cases to consider sentencing options other than imprisonment and I refer to sentiments that support my contention that were expressed by the then Chief Justice in State v Doreen Lipirin [23], "I do believe the court should be seriously designing alternatives to imprisonment that will achieve the purposes of retribution, restitution and rehabilitation in alternative ways than imprisonment."
"The converse implications of a sentence of imprisonment are whilst the immediate effects are that of deprivation of liberty ...the cost to the state and the community will exceed considerably the amount of money misappropriated. It would be no benefit to the society .The purpose of punishment can as easily be obtained in alternate orders to imprisonment .The offender is no threat to society"
59. That the offender might consider a suspension of any sentence a softer option and not remember that he has been found guilty of a criminal offence of knowingly being in possession of a dangerous drug and it is essential that the sentencing court impose a stiff head sentence then suspend wholly or in part, of course sanctioned with conditions if for two reasons, firstly to serve the purposes of retribution, deterrence and rehabilitation of the offender and secondly to ensure strict compliance by the offender with all such conditions that are imposed for the suspension as the imposition of no conditions might ensure the unfaithfulness of the offender.
60. The head sentence should therefore be suspended in whole but conditionally as the offence involved only one and a half roll of cannabis and cannot be categorized as being in the worst category of cases.
10. SENTENCE
61. Nathan Casper Aulem having been found guilty of knowingly being in possession of a dangerous drug, Cannabis Sativa, you are sentenced in the following manner:
(a.) You are sentenced to three months imprisonment with hard labour;
(b.) The whole of the term of imprisonment is suspended on the following conditions:-
(i) Defendant is to enter into a recognizance to be of good behavior for twelve (12) months and to appear for conviction and sentence when called on at anytime during such period;
(ii) Defendant is to perform community work as directed and supervised by Senior Sergeant Gage Dumok, Staff Officer to the Provincial Police Commander of Madang Province;
(iii) Defendant is to refrain from consuming, conveying or selling cannabis sativa during the period of his recognizance.
Police Prosecution for the State
Defendant in Person
[1] SCRA No 52 of 2005; 27.04.06 (Jalina J; Mogish J Cannings.J
[2] SCR No 6 of 1984; Re Provocation
[3] [1980] PNGLR 326 (10/10/80
[7] (1908) 7 C.L.R at 10
[8] [1983] PNGLR 277 Amet.J
[9] [1958] V.R at 225; [1958] VicRp 36; [1958] A.L.R. 648. Gavan Duffy J
[10] [1973] P.N.G.L.R 223
[12] [1963] P.N.G.L.R.127
[14] Supra Note 9
[15] (2006) CR 447&450
[16] [1984] PNGLR 206 N478 (M) (2 August 1984)
[18] Supra Note 15
[19] Supra Note 16
[20] [1998] N1766 (16/06/1998) Kirriwom.J
[21] Supra Note 20
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