DC2027

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

DCR 446/2011

BETWEEN

POLICE
Informant

AND

KITH AKWUA
Defendant

Madang: J.Kaumi
2011:3rd, 4th,18th,19th,24th May

SUMMARY: Sentence – Offence of Knowingly in Possession of Dangerous Drugs-Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d) – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors 

PRACTICE AND PROCEDURE- Sentence – Offence of Knowingly in Possession of Dangerous Drugs-Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d) – No Genuine Expression of Remorse –Prior Conviction-Reoffend soon After Release from prison for his first conviction-Serious Aggravating factor - Prevalent Offence – Need for Deterrence.

PRACTICE AND PROCEDURE-Mandatory Minimum Penalty of Three Months, Section 3 (1) (d) Dangerous Drug Act-Court to impose the minimum and then suspend or go higher as the justice of the case requires.

PRACTICE AND PROCEDURE- Plea of Guilt- Sentencing is a community responsibility and Courts exercise the people's power by virtue of section 158(1) of the Constitution - Need for proper Guidelines to be followed in the course of deciding appropriate sentence for purposes of Uniformity and Consistency-Appropriate sentence for Drug pushers as opposed to consumers.

A twenty five year old father of one pleaded guilty to being knowingly in possession of a dangerous drug, Cannabis Sativa and matter was for sentence. 

 Held:
(1). A repeat offender always attracts a stiffer sentence than a first time offender, the reasons being retributive and punitive more than other sentencing purposes like deterrence, rehabilitation or restitution. State v Harisu (11 )[2006] N3168 (24/10/06), State v Sevese (12 ) [2006] N3453 (23/1006), The State v Urika Iari (13) (2006) N3238, State v Basil (14 ) [2008] N3671 (5/09/08) 

(2).The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment. State v Inema Yawok (8) 1998] N1766 (16/06/1998)

Cases cited

Nup v Hambuga [1984] PNGLR 206 N478 (M) (2 August 1984)
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
State v Michael Kamban Mani (21/05/02) N2246
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J 
Kovi v The State [2005] SC 789 (31/05/05) 
Acting Public Prosecutor v Don Hale Sc 564
The State v Raka Benson (2006) CR 447&450
State v Harisu [2006] N3168 (24/10/06),
 State v Sevese [2006] N3453 (23/1006), 
The State v Urika Iari (2006) N3238, 
State v Basil [2008] N3671 (5/09/08)
Police v Numan Kanai DCR 517/2011

Legislation

Constitution of PNG
Dangerous Drugs Act

Abbreviations

The following abbreviations appear in the judgment

CONST	Constitution
DCR		District Criminal
J		Justice
NC		National Court
ST		State
S C		Supreme Court
SECT		Section
SUBS 		Subsection
V Versus

Counsel

Sergeant Patrick Nonao for Police Prosecution
Defendant in person
24th May 2011.

INTRODUCTION

1. KAUMI M. Kith Akwua, you will now be sentenced for an offence contrary to Section3. (1) (d) of the Dangerous Drug Act.

ARRAIGNMENT

2. When I arraigned you, you pleaded guilty so I entered a provisional plea of Guilty after reading the Statement of facts and confirming them with you I found you guilty as charged and proceeded to enter a conviction against you.

FACTS

3. That on Wednesday 27th of April 2011, at around 3:30pm, the defendant now before the Court namely Kith Akwua was seen at the main Town Market in Madang town, Madang Province. 

4. On the mentioned date, time and place the defendant was sighted by the Police sitting with a group of youths in a group and they looked very suspicious and so the Police personal on foot beat patrol went into the market to search them. 

5. When they were told to remain where they were the defendant stood up and started walking away. 

6. Police apprehended him and escorted him back to the group where he was thoroughly searched and in his trousers pocket ten (10) rolls of Cannabis was discovered. 

7. The defendant was escorted to the Police Station where he was cautioned and then further questioned in relation to the alleged offence where upon he freely admitted saying he bought it from other youths for his own use. 

8. Upon his admission he was formally arrested, charged, cautioned, told of his constitutional rights and detained in the cell. 5. 

ANTECEDENTS

9. Your Antecedent Report provided to Court is as follows;

(a)	You are 25 years of age and come from Dumage village in the Kerowagi District of the Simbu Province; 

(b)	You are married with one child;

(c)	You are unemployed;

(d)	You have a prior conviction for the same offence last year, 2010, and were sentenced to one year imprisonment with hard labour. 

ALLOCATUS

10. In your address on sentence you stated the followed:

 (a) Emi tru mi blo Simbu, mi baim simuk na oli ripot na oli kisim lo displa hap;

 (b) Papa blo mi dai pinis;

 (c ) Meri na pikinini blo mi bai husat I lukautim ol, em tasol.

 11. I take into consideration these above matters when I deliberate your sentence

SUBMISSION BY STATE

12. Sgt Nonao made a short verbal submission and a paraphrased summary of his response follows:-

(a.)	This is a prevalent offence;

(b.)	Youths under the influence of this dangerous drug are committing offences in town and the province;

(c.)	He left the sentence to the discretion of this court.
 
OTHER MATTERS OF FACT

13. 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 , (Jalina J; Mogish J Cannings.J )

ISSUE

14. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentences are in your case.

DECISION MAKING PROCESS 

15. To determine the appropriate sentence I will adopt Canning's. J's decision making process in The St v Raka Benson  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?

16. 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?

17. 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.

18. 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

19. Ipang.M (as he then was) in his paper 'Sentences passed on Dangerous Drug Offenders' which he presented at the Magistrates Bi-Annual Judicial Conference in Lae in May 2009 obtained statistics from three District Courts for the period 2005 to 2009 and that of the Madang District Court in 2009 which show 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. I have continued to refer to the above data for the want of sufficient data from other courts in the country. And as I have highlighted in the past that this does not mean in any way that the incidents of this offence are few hence the relatively low number of publicized judgments, certainly not by any stretch of the imagination. On the contrary, what it highlights is the fact that not all judgments have been publicized.

 SENTENCING GUIDELINES

20. 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.

21. In the immediate matter I adopt the sentencing guidelines that I suggested and the reasons for them in Police v Numan Kanai  in which I followed Kovi v The State  and State v Micheal Kamban Mani  and are as follows:-

"… (a).After confirming the guilt of a defendant, either on a plea or after a trial, the Court should consider sentence with the maximum prescribed penalty in mind first;

(b). Then the defendant must be allowed to make out a case for a lesser sentence in allocatus; (A defendant could easily do that by pointing out to the factors in his mitigation with appropriate evidence where evidence is required)

(c ). Once the defendant has been able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. (At this stage, the categorization of the kind of offence under consideration could become relevant and useful)

24. With these qualifications in mind then the following be applied:-

(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".

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?

22. Going by Cannings.J in Raka Benson  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 

23. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? No, there were ten rolls of cannabis.

(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, as he indicated in his allocatus that he was very concerned about the welfare of his immediate family. 

(iii). 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.

(iv). Did the offender give himself up before being detected? No, he stood up and tried to escape detection by the police who were approaching his group to search them. 

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

(vi). Has the offender genuinely expressed remorse? No, his comments were all self centered and he never any expressed genuine remorse when given the opportunity to do so. 

(vii). Is this the defendant's first offence? No, the defendant has a prior conviction for the same offence last year (2010) and was given one year.

(viii). Has the defendant been a good member of his school and the community in which he lives? Neutral, there is no evidence of whether or not he is a good member of his community.

 (ix). Is the defendant a person of good health both physically and mentally? Yes, he was of good health both physically and mentally when he appeared in court on all five occasions. 

(x). Has the offender and his family already paid a heavy price for his actions? Yes, his wife and child living in a urban center have obviously suffered hardship as a result of his action.

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

(xii). Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? No, as it can be reasonably inferred from the fact that the defendant was at main Madang Town market with ten rolls of cannabis in his trousers pocket that he was in the process of selling them.

(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.

Rationale
24. The rational behind the above considerations is as follows:-

(i). an affirmative (yes) answer = mitigating factor;

(ii). a negative (no) answer = an aggravating factor;

(iii). a neutral answer = be a neutral factor;

(iv). more mitigating factors = likely reduction of head sentence;

(v). more aggravating factors = likely lifting of head sentence above starting point.

(vi). sentencing is not an exact science rather it is a discretionary process;

(vii). Mitigating factors may be mild or strong and weighed accordingly;

(viii). Aggravating factors may be mild or strong and weighed accordingly. The St v Raka Benson 

Categorization of the listed considerations

25. 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?

26. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment. State v Inema Yawok  

27. After weighing all these factors and bearing in mind that there are four mitigating factors compared to nine aggravating factors, and going by State v Inema Yawok  and the fact that he has a prior conviction for the same offence and was sentenced to one year, the head sentence should be the starting point of 12 months.

28. The total potential sentence is twelve months.

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

29. In Acting Public Prosecutor v. Don Hale , 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 "".…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". 

30. The head sentence should not be suspended either in whole or in part as it involves a repeat offender. 

OTHER RELEVANT CONSIDERATIONS

31. A repeat offender always attracts a stiffer sentence than a first time offender, the reasons being retributive and punitive more than other sentencing purposes like deterrence, rehabilitation or restitution. State v Harisu , State v Sevese , The State v Urika Iari , State v Basil

32. The circumstances of this defendant's status as a repeat offender is similar to that of the accused Bani Basil in State v Basil who reoffended very soon after his release from prison for his first conviction.

33. In the immediate matter this defendant reoffended a short while after his release from prison for his first conviction by committing the very same offence. The National Court in State v Basil  stated "It demonstrates that he learnt nothing from his first conviction. To come straight out of jail and repeat the offence is to my mind a significant aggravating factor".

34. The community's abhorrence of this category of offenders of which the defendant finds himself must obviously be reflected in a stern sentence.

35. One way of reflecting the community's abhorrence is to mete out deterrent sentences and the circumstances of this particular matter demand that this Court exercise the people's sentencing power vested in it by the Constitution and impose such a sentence that is in touch with their aspirations and attitudes.

SENTENCE

36. Kith Akwua having been found guilty of knowingly being in possession of a dangerous drug, Cannabis Sativa, you are sentenced to twelve months imprisonment with hard labour. 

Police Prosecution for the State 
Defendant in Person