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State v Kevandi [1997] PGNC 10; N1531 (12 February 1997)

Unreported National Court Decisions

N1531

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1146 OF 1996
THE STATE
v
JOHN GOEA KEVANDI

Waigani

Sevua J
6 February 1997
12 February 1997

CRIMINAL LAW - Sentence - Dangerous drugs - Conspiracy to convey, s.516 Code - Plea of guilty - Degree of participation - Sentence of 2 years appropriate.

Held:

1. In view of the drastic increase in drug offences in the country, Courts must impose penalties that should deter drug offenders.

2. The prisoner’s degree of participation is such that, on policy consideration alone, he should be severely penalised so that the severity of the penalty would act as both, a public and a personal deterrence.

3. Although the prisoner is a first offender, he attempted to traffic drugs into Australia and in the circumstances a custodial sentence of two (2) years is appropriate.

Cases Cited:

Richard Cheong v Vincent Nemil [1981] PNGLR 472

Counsel:

Mr P Mogish for State

D Sakumai for Accused

12 February 1997

SEVUA, J: On 6th February, you pleaded guilty to an indictment charging you with one count of conspiracy to export dangerous drugs, cannabis, from the Western Province in Papua New Guinea to Australia. The conspiracy involved four Australians: William Kenneth Howlett, John Myall, Lindsay Barton and Chris Holland, and two Papua New Guineans, Brian Eaii and Daniel Mondurafa.

The facts which you admitted and I accept are these. In August, 1995, the National Drug Task Force received reliable information in respect of a plan to export a large quantity of cannabis to Australia by light aircraft. The information was passed onto Australian Federal Police personnel who obtained warrants to record and monitor telephone conversations between you and your contacts in Australia. The drugs were to be exported to four Australian pilots and an Australian businessman. You were to convey 200kg of marijuana to Balimo in Western Province by light aircraft and the marijuana were to be transferred to Australia by the members of the syndicate.

On 26th October, 1995, you flew from Goroka to Balimo where you made arrangements to export the drugs on first light on 29th October, 1995 at Balimo Airstrip. Members of the Drug Squad then followed you to Balimo where a surveillance was carried out on your activities in Balimo. Their investigation revealed that you had not delivered the drugs to Balimo in light aircraft, but had consigned them as unaccompanied cargo to Balimo via Port Moresby.

On 29th October, 1995, Drug Squad members went to MBA Terminal in Port Moresby with a search warrant and confiscated three suitcases containing 29.9kg of marijuana.

These suitcases were consigned by you in Goroka to your name in Balimo, via Port Moresby. On the same date, you were arrested in Balimo, and, upon interrogation about the three suitcases, you readily admitted your part in the conspiracy.

You are 31 years old now and married with two young children. You have a very good educational background and good previous employment record. You are now employed with MBA as a Traffic Officer having commenced on 12th December, 1996. You have no prior conviction, however, I have now seen a copy of the certificate of conviction which relates to your conviction at the Boroko District Court on 16th November, 1996; of possession of drugs which conviction led to your imprisonment for one year. That offence relates to the same transaction which is the subject of this indictment.

Having heard you on allocutus, I cannot help, but wonder why a person of your educational background could be involved in such an illicit drug affair. It may be true that you were promised a lot of money and completion of your pilot training in South Australia, but I would have thought that with your level of education and training, you would have been much wiser.

You were awarded an AIDAB scholarship to study Applied Physics at the University of South Australia in 1990. You spent 1990 and 1991 at that University and it was during that period that you came to know William Kenneth Howlett who ran the Parafield Flying School in Adelaide, which you also attended to train as a pilot. It was also during that time that discussions about marijuana in PNG took place between Howlett and yourself. But in April or May, 1995, you met John Myall at Port Moresby Travelodge where discussions and planning continued. Then in September, 1995, you were flown to Cairns at the expenses of Howlett and Myall where you held further meetings and discussions with Myall who then gave you K2,400.00 for the purchase of marijuana. Upon your return, you received another K260.00 by mail from Howlett for your airfares Goroka-Port Moresby return. Sometime later, you received yet another $1,200.00 through your ANZ Bank account in Goroka and another K120.00 for telephone connection. So you would have received approximately K4,240.00.

On 6th March, 1995, when you first wrote to Howlett, you mentioned your plan, to pack 100kg of marijuana inside a continental engine by stuffing them in the cylinder and the sump. The pistons and con rods would have to be removed first, so you were looking for cracked or time-expired engines. You said then that, “this is a brilliant idea and no one could detect that for sure.” In fact, you wrote to Howlett and Myall again on 8th May, 27th June and 24th August, 1995. In those letters, you made various suggestions and plans about conveying marijuana to them in Australia.

Your input and involvement did not end after writing these letters, infact, they continued to the date of your apprehension at Balimo. These are manifested in what I wish to advert to, because in my view, it will become pertinent at the end of the day, just how much you were determined and committed to the fulfilment of this conspiracy.

Because of your pilot training, you were able to supply various informations on certain airstrips in the country. These include, Goroka, Iokea, Balimo (codenamed Alpha), Kawito (codenamed Bravo) and Wasua. The last three strips are located in Western Province. The informations you supplied included the latitude, longitude, elevation, length, runway number and whether these airstrips were level or slope and the angle and direction of the slope. In the case of Iokea airstrip in Gulf Province, you supplied a map with a scale, 1:250,000 and ruled a route on the map from Iokea to Coden airstrip in North Queensland with advices that the distance was 350 nautical miles, Coden is a licensed airfield so it should have fuel and, Iokea is outside radar coverage.

Your plan also included a discreet VHF frequency with a radio to be supplied by your Australian friends, postal addresses and telephone numbers of your contacts in Lae and Goroka, transfer of marijuana by boat to take place either in Daru, Lae or Madang, drop-off at Cairns by a PNG pilot friend of yours in light aircraft with the possibility of refuelling at Horn Island in the Torres Strait and charter of a twin otter aircraft from Goroka to Iokea to drop off the marijuana with a youth group who would then walk to Port Moresby after leaving the marijuana at Iokea.

Between 28th August and 18th October, 1995; Australian Federal Police monitored and recorded telephone conversations between you and your Australian partners and also conversations between the Australians themselves. In those telephone conversations, numerous things related to the drug shipment were discussed, the plans refined and various doubtful considerations eliminated. A Essendon Bombers football cap was supplied to you in Cairns to wear on the day of shipment so that the Australian pilot would recognise you. You bought a powerful torch, with money supplied by Myall in Cairns, to use when the plane was to pick up the marijuana. In fact, the agreed signals were, three flashes of your torch meant everything was all right and a continuous light from the torch would mean things were not right, so that presumably, the pilot could abort the landing.

From the evidence, all these matters that have been alluded to, represent and demonstrate, not only a concerted effort on the part of all the syndicate members including yourself, but a greater degree of commitment on your part as well. That is, your degree of participation, in my view, was greater than that of other members of the syndicate. You purchased the marijuana in Goroka, you stored them, you compressed them with assistance from people you hired, you arranged telephone contacts in Goroka, infact, you received K120.00 for telephone connection so that you could have a telephone installed at your contact’s house in Goroka for the sole purpose of communicating with your Australian counterparts. And of course, you packed the three suitcases containing the 29.9kg of marijuana and consigned them in your name to Balimo.

You flew to Balimo to wait for the suitcases so that you could convey them into a light aircraft coming in from Australia, specifically to pick up the merchandise. Unfortunately, the suitcases were confiscated at the MBA Terminal in Port Moresby, and subsequently, you were arrested at Balimo by police officers pausing as telephone technicians who were waiting for spare parts that were to arrive on the same flight which your suitcases were to be on.

Whilst I agree that you have a very good educational and employment background, I consider that your degree of participation in the perpetration of this offence warrants a severe criminal sanction. It is true that under s.516 of the Criminal Code, the maximum penalty is three years imprisonment. However, drug offences have increased drastically in this country and in my view, Courts must impose penalties that could act as a deterrence on possible offenders.

The consumption or use of marijuana has become a problem in this country. Marijuana is being sold easily in the streets and in villages and it is affecting and ruining the lives of so many young people in Papua New Guinea today, that if, the authorities do not address this problem seriously, the country could become another Colombia in South America. Infact, I call on the Government to repeal the Dangerous Drugs Act or overhaul it so that jurisdiction over drug offences be vested in the National Court with significant increases in penalties. I am not advocating that by doing this, the drug problem will be solved. If the National Court has jurisdiction over drug offences, offenders will no doubt realise that they would face severe penalties and hopefully, this should bring the message home.

Whilst I acknowledge the sentencing principle that punishment for an offence must be strictly proportionate to the gravity of the offence, the gravity of the offence itself can be arrived at after taking into account a number of considerations, including the nature of the offence, prevalence or frequency of perpetration, the community’s (public) view and the effect on the lives of citizens. In my view, other considerations such as the prisoner’s degree of participation in the commission of the offence itself, etc, are also relevant.

In this case, I find that the prisoner’s degree of participation was greater than the rest of the members of this syndicate. His participation was not limited to the receipt of money and purchase of the drug, but went beyond that, and it included the consignment and conveying of cannabis from Goroka to Port Moresby destined for Balimo. On policy consideration alone, I consider that the prisoner should be severely punished so that the severity of the penalty would serve as a public deterrence as well as a personal deterrence.

It is true that the cannabis never left the shores of Papua New Guinea and I accept that from the prisoner’s own submission. However, in my view, that alone is not an element of the charge of conspiracy to convey dangerous drugs. Whether the cannabis left Papua New Guinea or not is immaterial, it is the actual conspiracy that is important.

I have considered all the matters that the prisoner and his counsel submitted in mitigation. In particular, I have taken into account the prisoner’s good record, plea of guilty, expression of remorse and that his family will suffer if he is incarcerated. His family’s suffering as a consequence of his incarceration is a reality of life the prisoner should have considered before he decided to act contrary to law. While I sympathise with that predicament, as I adverted to, the prisoner’s level of education and intelligence and his training in Australia should have made him wiser. Frankly, I find it a bit difficult to accept that such a highly educated Papua New Guinean, could be deceived by this superficial mentality that one can make quick and big bucks from marijuana. Perhaps, one could, but as it were, the prisoner has now found that, the price to pay was too high.

Taking into account the public view on the use of drugs and the degree of participation of the prisoner, I am of the view that the maximum penalty is not warranted, but a substantial period of imprisonment should be imposed. I also take into account what His Honour, Kearney, DCJ said in Richard Cheong v Vincent Nemil [1981] PNGLR 472 at 475:

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

The prisoner is a first offender, however he was infact attempting to traffic drugs to Australia for a large sum of money, though the amount was not disclosed.

Taking everything into account both for and against the prisoner, I consider that a custodial sentence is appropriate to send a clear message to possible drug offenders that Courts will not hesitate to impose severe criminal sanctions on people dealing with drugs.

I sentence the prisoner to two years imprisonment with hard labour and order that his cash bail in the sum of K200.00 be refunded.

I order that the suitcases of marijuana be destroyed after forty (40) days from today.

Lawyer for State: Public Prosecutor

Lawyer for Accused: Acting Public Solicitor