N1283

PAPUA NEW GUINEA
[In The National Court of Justice]

APPEAL 244 OF 1944

JOHN TEN KOMONGA
Appellant

V

JOWI GRUMAN
Respondent

Mount Hagen: Woods J.
4, 11 January 1995

Appeal - District Court - drug offence - trafficking - minimum penalty - discretion of magistrate - international trafficking - penalty not excessive. 

Case cited:
Gheong v Nemiel [1981] PNGLR 472.

P Kunai for the Appellant.

11 January 1995

WOODS, J. The Appellant is appealing against the sentence imposed upon him by the District Court at Mount Hagen following his conviction of a charge of knowingly exporting 9 kilograms of dangerous drugs namely marijuana contrary to section 3 (1) of the Dangerous Drugs Act Ch 228. He pleaded guilty to the charge. 

The grounds of appeal are firstly that the Magistrate erred in holding that he had no discretion to consider a penalty other than the custodial sentence prescribed by section 3 (1) (c) with a minimum of 3 months imprisonment. And secondly that the sentence of 8 months imposed was excessive in all the circumstances of the case.

Briefly the facts are that in June 1994 the defendant took a package to the Mount Hagen TNT office and consigned the package to Cairns in Queensland. He gave a false name for himself the consignor and declared the package to contain engine parts for repair. The package contained 7 kilograms of marijuana. The package was intercepted by the police in Cairns and the receiver was arrested. Following enquiries here in Mount Hagen the appellant was identified as the sender. It was also discovered that the receiver had deposited two amounts totalling K1,167.36 into the appellant’s bank account in Mount Hagen at the time. When charged, the appellant co-operated with the police and pleaded guilty.

It was submitted to the Magistrate that although the Drug Act provided for a minimum penalty the Court still had a discretion to either impose a fine or release the appellant conditionally. The Magistrate in his reasons for the sentence imposed clearly felt that he had no discretion. I will not go into the authorities but I must agree that the Magistrate did err in so finding that he had no discretion. However what else was the Magistrate considering. He clearly said that in his view "that in this particular case the defendant deserves a sentence that is a bit higher than which is provided for by Section 132 (namely conditional release) and by that I mean a much higher court fine". So he was clearly not just considering conditional release but perhaps a heavy fine. 

However the Magistrate then goes much higher than the minimum imprisonment of three months, he more than doubles that to 8 months.

Earlier in his reasons he clearly excludes section 132 which he says is applicable where an offence committed is a simple offence. He says the present case is not simple. He refers to a case Gheong v Nemiel [1981] PNGLR 472 where a term of imprisonment for 3 months for cultivating 16 marijuana plants was confirmed by the National Court and the Judge said 

"a clear distinction must be drawn in sentencing for drugs offences, between persons who are engaged in any way in drug trafficking and those who are simply consumers (including addicts). The former will always be imprisoned and for a lengthy term."

The magistrate then noted that drug offences is on the rise," the present case is a serious one because the offender has exported a large quantity and received payment for it". 

So at the end of the analysis of his reasons what was the magistrate considering as an alternative to a custodial sentence when at the end he gave more than double the minimum penalty. Perhaps it could be interpreted that he was a considering a heavy fine along with the minimum of the three months. 

After all this is the penalty excessive. Parliament meant something when it legislated a minimum custodial sentence, and it is clearly going along with international agreement on heavy sentences to control drugs. So there must be some special circumstances to warrant a variation of the type of penalty Parliament has insisted upon. The Magistrate has considered the appellants personal history and family status but obviously by giving over twice the minimum penalty has considered the gravity of exporting such a large quantity of drugs. 

On an appeal it is not a matter of what sentence I would have imposed but rather was the sentence imposed by the magistrate reasonable or was it excessive. 

As I have noted that in spite of the magistrate’s comments which suggest he may have been considering a heavy fine the fact that he gave such a heavy custodial sentence meant he was still considering the seriousness of the trafficking. The world demands heavy penalties, Parliament has legislated accordingly, there can be no such person as an innocent or accidental trafficker in this type of situation where the appellant carefully gave a false name and a false customs declaration for the contents, and then received a substantial amount of money. The sentence imposed is quite within the range open and is clearly within the guidelines suggested by the Gheong case referred to above.

Whilst the magistrate may have erred in considering what discretion he may have had I find that the sentence is not excessive, it accords with National Court guidelines and therefore this court cannot interfere with the sentence imposed.

I dismiss the Appeal.

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Lawyer for the Appellant: Kunai & Co.