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Police v Andrew [2022] PGDC 95; DC9040 (18 May 2022)

DC9040
PAPUA NEW GUINEA.

CRIMINAL JURISDICTION.
DC Sum NO: 36 /2022.

IN THE MATTER BETWEEN:

POLICE/STATE.
Informant.
.
AND.

JAMI ANDREW

Defendant

Popondetta: Michael W. Apie’e

2022: May 16^th and 18^th.

CRIMINAL LAW. Practice and Procedure-Sentencing after conviction on trial.
-HEARING-Defendant Plead Not Guilty to Charge and Trial commence against the Defendant on the 11/05/22.
-Prosecution called Informant and Two Security officers involved in the detection and apprehension of the Defendant from an employee’s house No: 60 at Javuni Compound at the back of Siroga Estate.
-When Prosecution called the Resident of house 60 at Javuni at which house the Defendant was apprehended, one Emon Job, the Defendant then relented during his opportunity to Cross Examine this Witness, and made full admissions to the Offence and apologized for the previous plea of not guilty.

-Matter Processed for Sentencing.

EVIDENCE
-Direct Evidence- Substantial Quantity of Dried Marijuana in 43 x K10.00 Marijuana Rolls plus a 3kg quantity of unpacked dried marijuana in a 10kg Roots rice bag confiscated by Security Personnel’s from the house the Defendant was living in at the time.
-Owner of the House not Charged.
HELD:

1. Defendant Found Guilty as Charged on the basis of Evidence so far adduced, and also on his own Admissions made to court after pleading not Guilty Initially.
2. Defendant is fined K2000.00, in default two years imprisonment in hard Labour.

Cases Cited:
State v. Kingsley Doledole [1997] PNGLR 579
Sinclair Matagal v. the State ( 1988) SCRA 95 of 1996
State v. Ivoro and Yavura [1980] PNGLR 1,
Kuri Willie v. The State [1987] PNGLR 298.
*Police v. Manaia Gavin DC Sum NO: 28 /2022

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

Representation;
Defendant appears in Person
Sergeant Kain Haira for the Police/State.

RULING ON SENTENCE.

Background.

1. The Defendant Jami Andrew is a young Adult male in his early to mid-twenties and comes from Asinave Village in the Obura Wonenara District of the EHP.
   
2. He was convicted after during Trial on one count of Possession of well over 3 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.
   
3. On 06/04/22, the Defendant pleaded not Guilty before the Court to the Charge of Possession of Substantial Quantity of Dried Marijuana in 43 x K10.00 Marijuana Rolls plus a 3kg quantity of unpacked dried marijuana in a 10kg Roots rice bag confiscated by Security Personnel’s from house the Defendant was living in at Javuni Estate at Siroga and trial was set for the 25/04/22.
   

Prosecution case:

4. However due to some delay, trial actually commenced on Wednesday 11/05/22 and Police Prosecutions Sergeant K. Haira called Three witnesses namely Police Woman Reserve Constable (PWRC) Rebecca Dira, Security Officers Mr. Boni Ganima and Mr. Vincent Wellam.
   
5. PWRC Rebecca Dira spoke on receiving the case and processing it and arresting the Defendant while the other two witnesses spoke on getting the Tip-Off from informants that someone was actively selling Drugs at Javuni Estate, and Fronting up at house No: 60 at Javuni Estate, where upon the Defendant was caught with 6 x K10.00 Marijuana rolls found on him as well as the discovery of another 37 x K10.00 rolls and also a further 3kg of unpacked Marijuana kept in a Roots rice bag in a bag hanging in the Living room o house No: 60.
   
6. The Defendant and one Mr. Emon Job who is employed by the Higaturu Oil Palm Company Ltd, and the official Company Resident of House No 60 at Javuni Estate were both brought to the Security Post and questioned into this matter.
   
7. The said Emon Job is also from Asinave Village in Marawaka, Obura Wonenara District of the EHP and is in fact a cousin/brother of the Defendant, and so the Defendant was being accommodated at House No: 60 at Javuni Estate because of this family Connection.
   
8. The defendant is thereafter Charged for the Possession of this quantity of Marijuana whilst Mr. Emon Job was released from further involvement in the case as it became apparent to the Investigators that he had no part in the possession and distribution of this quantity of Marijuana.
   
9. During the Trial when the above three named witnesses were giving their Oral Testimonies, the Defendant when given an opportunity to Cross Examine, raised the contention that the Marijuana did in fact belong to the said Emon Job and his brother in-law from Kokoda, and that he was told that since he was young and single, he should take the fall for them so they would assist with his Court Fine and other matters later.
   
10. The said Emon Job had given a witness statement to police so on the 11/05/22 after the other witnesses gave their Evidence, Prosecution sought adjournment of the Case to the 16/05/22 to Call the said Emon Job to clarify the allegations being raised by the Defendant.
    
11. When Trial recommence on the 16/05/22, the Said Emon Job attended court and revealed that the Defendant had arrived from home at Asinave Village in Marawaka, Obura Wonenara District in the EHP on the 19/03/22 and had live for over a week with him at his company Residence at House 60 at Javuni Estate until the 27/03/22 when he was found out and apprehended as already stated.
    
12. He further stated that, when the Security arrived, they checked the Defendant and removed 6 x K10.00 Marijuana Rolls from him, and so they search his House and discovered nothing in his Bedroom but later discover the Defendants bag in the living room with other Marijuana Rolls and also the quantity of 3kg of Dried Marijuana in a Trukai Roots Rice bag.
    
13. This witness completed his Evidence in chief and the Defendant was invited to Cross Examine the witness, to which the Defendant then relented and Confessed that the quantity of Marijuana was indeed his and not anyone else and he further confessed that he brought the Marijuana in from home in the EHP via Lae to sell for money and indeed was selling for money when he was caught and arrested.
    
14. He also apologized to the Court for Lying previously and denying the Offence.
    

Defense case:

15. Prosecution case was closed at this stage and the Defendant asked by the Court to either present his Defense or Stand by the Admissions and Confessions he just made.
    
16. The Defendant instantly and unequivocally affirmed his Confession and stated that he would stand by his Admissions just entered before the Court and that he was ready to discuss or address on his sentence.
    

Verdict:

17. Accordingly, the Defendant was found Guilty as charged due to the unopposed and logically laid out Prosecution case, and also because of his Confession/Admissions made in Court During the Trial itself.
    

Allocutions:

18. When asked to address on Allocution,
    1. The Defendant admitted that he had broken the Law and,
    2. That he only broke this Law because he was unemployed and the pressure to contribute to family issues especially the Educaton of his younger siblings back in Asinave Village in the EHP prompted him to erroneously consider this activity.
    3. He undertook not to do this again.
    4. He stated that he is a recently Baptized member of the Seventh Day Adventist Church and he is single, but somewhat considered himself responsible to some degree for his younger siblings Education.
       

Observations:

19. This case started out as a Trial to the Plea of Not Guilty and after Police had prosecuted the case to completion and called its last Witness Emon Job just to explore the accusations leveled at him by the defendant during his questions in Cross Examination of the Police witness, the Defendant relented and decided to come clean and confess/admit that the Drugs were his and he was singly responsible for the drugs, when invited to cross examine Emon Job.
    
20. In the case of State v. Kingsley Doledole, I was Defense counsel in that case and in the course of a Trial on Willful Murder, the Defendant changed his instructions and so I advised State Prosecutor Ms. Linda Maru who agreed to accept a Plea to a Lesser court of Murder. The Court per Batari AJ as he then was accepted that change in the Plea and the Defendant was accorded the benefit of that Plea of Guilty even after the State had called some of its proposed witnesses.
    
21. In the unreported Supreme Court case of Sinclair Matagal v. The State, this was a case emanating from a National Court case that I defended in 1996 as a fresh young Lawyer with the Public Solicitors office.
    
    1. In that case the said Sinclair Matagal and his Co-accused one Lawrence Melare pleaded not guilty to one count of Rape under Section 347 of the Criminal Code and half way through the National Court Trial before Justice Batari, I was asked by the Defendants to give my frank opinion on their chances and I advised that it was not looking promising.
    2. The Defendants then opted to change their Plea of Not Guilty to a Guilty Plea and so I asked the Presiding Judge to re-arraigned them to which they both promptly entered guilty pleas.
    3. After plea/mitigation and submissions, they were given a number of years each imprisonment commensurate to their Pleas of Guilty instead of higher potential Sentence had they being found guilty through Trial.
    4. Later, Sinclair Matagal appealed to the Supreme Court in this cited case, Claiming among other things that I forced him to change his plea and that the change of plea was not possible that late in the proceeding.
    5. I was however exonerated on both issues by the Supreme court when the Supreme court found no evidence of compulsion on my part on the said Sinclair Matagal to change his Plea and also when they held that the Change of Plea even that late in the Proceeding was allowable and still a valid Plea of Guilty in Papua New Guinea Criminal Practice.
       
22. On the Reverse, in the Case of the State v. Ivoro and Yavura [1980] PNGLR 1, Kapi J (Late) as he then was established in that Judgement that a Defendant/Accused is able to and can change his Plea from Guilty to Not Guilty at anytime even after allocutus up to even before sentence is passed.
    
23. Accordingly, it is the observation and assessment of this court that the Defendant changing his position on the case during his purported Cross Examination of the Police Witness Emon Job to full admission and confession to the Offence is excepted as a valid

and binding and Bona Fide Admission on the Defendants part in the offence.

24. His Change of Plea was in Order, and accordingly accepted by this court and a Guilty verdict entered against him on the Provided Evidence and also on his Confessions and Admissions.
    

Aggravating Circumstances.

25. The Defendant was found guilty for possession of a substantial amount of Marijuana/Cannabis sativa of more than 3 kg after a trial when he pleaded not Guilty, but later decided to confess during the trial.
    
26. The Evidence also hinted that some of the Drug had being prepared and packed in K10.00 packs or rolls and was being actively sold or distribute through sales. In fact, he was caught with 6 x K10.00 packs/rolls on his person while 37 more and the 3kg of unpack quantity of Marijuana was found in his bag in the house.
    
27. It seems that up until his apprehension, he was actively selling and distributing the Marijuana at Javuni Estate, hence he had 6 x K10.00 rolls on him when checked by Security officers.
    
28. In his initial denial of this offence, he was willing to implicate his cousin and benefactor Emon Job, even after he put him up at his house by trying to shift the blame to Emon Job as the Perpetrator of this Marijuana case, revealing himself to be an untrustworthy and self-serving person who would sooner betray even his own family if anything could be gained by this.
    
29. I believe that if Emon Job did not come to court to testify, the Defendant might have remained adamant that the Marijuana was not his but that it belonged to Emon Job and his un-named and unverifiable brother In-Law from Kokoda.
    

Mitigating Factors.

30. The Defendant is a first Offender with no prior convictions.
    
31. The Defendant is the second Defendant that I am dealing with in a substantial manner given the 2022 Amendment to Section 3(1) of the Dangerous Drugs Act and so I am taking this opportunity to lay down my assessment on the appropriate penalty for this offence under Section 3 of the said Act, to firstly lay precedent for my own purposes and also as a contribution to the others that might have to deal with cases under this Act from hereon.
    
32. 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.
    
33. 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.
    
34. 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.
    
35. The intention to distribute illicit Drugs and other noxious and Dangerous substances to other people therefore should rightly attract a heavier penalty.
    
36. In this instance the defendant was obviously selling and or Distributing Marijuana at Javuni Estate, a Higaturu Oil Palm Company Residential Estate for its employees thereby subjecting other people to this illicit and noxious substance
    
37. The Defendants concern for his younger siblings though considered as genuine bears little Probative value to the Defendants plight as if he was concerned with them he should be back in Asinave village in Marawaka, Obura Wonenara District EHP closer to them instead of hundreds of miles or kilometers away from them here in Popondetta, Northern Province.
    
38. His claim of being a recently Baptized member of the SDA Church does not afford him with any favours as because of that, he should have known better.
    
39. 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:

40. 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.
    
41. 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.

42. The defendant was apprehended on the 27/03/22 and this charge laid on him on the 01/04/22 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.
    
43. The conditions in Section 11 Effect of Changes in Law in the Criminal Code Act therefore do not apply in this case.
    

SENTENCE:

44. 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 Young 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 possessing marijuana and selling and distributing such in an Estate where Family’s with children live and being caught with more than 3kg’s of Marijuana/Cannabis Sativa whilst actively selling and Distributing 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, even though he ended up admitting the offence in the end.
       
    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 Lose 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. 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.
       
    9. The scourge of Marijuana Distributions to our young people must stop.
       
45. In the case of Police v. Manaia Gavin DC Sum NO: 28 /2022, in which I passed sentence on another your man like the Defendant on the 11/03/22 in this Court for the little over 12kgs of Marijuana he brought in from the Morobe Province, I established a pattern or formulae that I intend to follow hereon when dealing with Drug Related cases given the Amendment of 13^th January 2022.
    
46. In order to maintain uniformity and consistency I had ruled in that case that I consider that Fine at the rate of K500.00 per Kilogram of Marijuana/Cannabis Sativa charged/Alleged was a reasonable rate to adopt, given that the street value of Marijuana in the average Papua New Guinean Town is unknown.
    
47. Apart from the 3kg of unpacked Marijuana found in his possession, the Defendant also had 43 x K10.00pack/Roll(s) of Marijuana accounting for another 500grams to 1kg of Marijuana, arriving at a projected court Fine of K2000.00.
    
48. 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 Two (2) years.
    
49. Accordingly, the Defendant is Sentenced as follows
    
    1. Fine Imposed in the sum of K2000.00.
       
    2. In default of Court Fine, the Defendant is to serve 2 years in hard labour at Biru Correctional Services Goal.
       
    100. Time spent in custody of 48 days is to be deducted from the head sentence of 2years if he is not able to meet the requisite Court Fine amount.
         
    4. The Balance of 1 year 10 months and 12 days to be served in hard Labour, if the Fine of K2000.00 is not sooner paid.
       

Police Prosecutions for the State.
Defendant in person.