DC2031
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

DCR 764/2011

BETWEEN

POLICE
Informant

AND

DAVID TAMAKO
Defendant

Madang: J.Kaumi
2011: 6th, 8th, 15th July

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- Sentence – 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-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 thirty two year old father of four pleaded guilty to being knowingly in possession of a dangerous drug, Cannabis and matter was for sentence. 

 Held:
 (1).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 

(2).Drug pushers or sellers are a totally different breed and worst type of offenders from consumers and as such deserve to be treated in a manner befitting their status.

Cases cited

Nup v Hambuga [1984] PNGLR 206 N478 (M) (2 August 1984)
Acting Public Prosecutor v Don Hale Sc 564 
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J
 The State v Irox Winston (21/09/00) N2304
State v Jason Dungoia (13/12/00) N2038
State v Michael Kamban Mani (21/05/02) N2246
Edmund Gima v The State & Siune Arnold v State (03/10/03) SC730
Kovi v The State [2005] SC 789 (31/05/05)Waigani:Injia DCJ, Lenalia &Lay JJ 
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 )
Police v Gideon Francis DCR 513/2011
Police v Numan Kanai DCR 517/2011
Police v Ronald Bunap DCR 544/2011

Reference

 'Sentences passed on Dangerous Drug Offenders', Magistrates Bi-Annual Judicial Conference in Lae, May 2009, Martin Ipang 

Legislation

Constitution of PNG
Dangerous Drug Act Chapter 228

Abbreviations

The following abbreviations appear in the judgment
CHT	 Chapter
DCJ Deputy Chief Justice
DCR	 District Criminal
DDA	 Dangerous Drug 1952 Act Chapter 228
J	 Justice
KG Kilogram
M Magistrate
N	 National Court
PNGLR Papua New Guinea Law Reports
S C		Supreme Court
SCR		Supreme Court Reference
SECT		Section
PWC FC Police Woman Constable First Constable	
ST		State
V	 Versus

Counsel

Police Woman Constable First Constable Doreen Able for the Police Prosecution.
Defendant in person.

INTRODUCTION

1. Kaumi. M. David Tamako, you will now be sentenced for an offence contrary to Section 3. 1. (d) of the Dangerous Drug Act ( Hereinafter referred to as DDA)

ARRAIGNMENT

2. When I arraigned you, you pleaded guilty and after confirming the brief facts with you I found you guilty as charged and proceeded to enter a conviction against you.

FACTS

3. That on Wednesday 20th of April 2011, between 6am and 8am, the defendant now before the Court namely David Tamako was at the Mildas Market,Madang town, Madang Province where a people from different parts of this country live. 

4. On the mentioned date, time and place these people were gambling and the defendant was seen to have a large quantity of dried leaves of a dangerous drug known as marijuana or cannabis stacked in his travelling bag in a 10 kilogram Roots Rice bag.

5. This was reported to Jomba Police who quickly surrounded the area and apprehended the defendant and took him to the Jomba Police Station for questioning.

6. He was then cautioned and detained there while the said items were conveyed to the Drug Squad Office for documentation and enquiries.

7. On the afternoon of the same day the said defendant escaped from the cell unnoticed which prompted Police to enquire into his escape and that of other defendants who were no longer in the cell also that afternoon without any entries made in the Occurrence Book.

 8. An investigation was conducted the next day and is still ongoing into certain illegal activities of the Police officers at the said Jomba Police Station.

9. The defendant was sighted on Saturday 2nd July, 2011 at 3:30pm near the Madang Provincial Government complex by the police cleaner who not only confronted him but apprehended him and took him to the Police station where he was detained.

10. The defendant was later cautioned, informed of his Constitutional rights, charged and placed in the cell for being in possession of one point six kilograms (1.6kg) of dried leaves of cannabis. 

ANTECEDENTS

11. Your Antecedent Report provided to Court is as follows;-

a. You are a thirty two year old man and married with four children and come from Kafentina village, Kainantu, Eastern Highlands Province and live at Rivo village which is situated just outside of Madang town;

b. You are employed as a security guard at the Kalibobo Clothing, earn K200:00 a fortnight and have no prior convictions. 

ALLOCATUS

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

 (a) Displa emi tru, displa Saturday mi go baim long K250:00 ino blo salim, emi blo exchangim long TV na screen na seim taim oli kisim mi, oli putim mi long sel, emi tru, na bihain mi stap one week four days long sel na mi askim long bail o fain na ol polis itokim mi sapos mi gat K200:00 bai yu bail na bihain mi stap one month 3 days autsait na oli kisim mi ken na arrestim mi. Taim oli kisim ken inogat wanpla evidence oli kisim long mi na nau mi kamap long ai blo kot. Mi askim olsem wonem nau; Mi askim kot long marmari blong kot long opim dua blo mi;

 (e). Mi gat fopela pikinini lo skul, na wanpla istap lo Tusbab na tripla istap long primary skul;

 (f ). Mi tok sore long women kain pasin mi mekim, em fest aim long mi long kamap long kot.

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

SUBMISSION BY STATE

14. PWC F/C Able made no submission in response other than to leave the sentence to the sentencing discretion of the court.

OTHER MATTERS OF FACT

15. 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

16. 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 

17. 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?

18. 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?

19. Sentencing guidelines are often coined as 'starting points for various types of cases' The Court should apply these starting points in the course of looking at the circumstances peculiar to each case i.e. identifying the aggravating and mitigating circumstances.

20. In the present case I have been unable to locate a suitable precedent in our jurisdiction 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

21. With regard to the aspect of sentencing trends I adopt the comments I made in Police v Rex Aiye  which I regard as relevant and pertinent and are as follows:

"16. The sentencing trends can only be positively identified by observing what sentences courts have imposed and this entails being able to access them through reading the sentencing judgments. It is therefore imperative initially for such judgments to be published.

17. Therefore to get a gist of the sentencing trend I have conducted a search of publicized decisions on Pacli on sentence for the offence of knowingly in possession of dangerous drugs but only came up with a handful. This relative scarcity of judgments on this aspect of sentencing means that though it is well-published that the incidents of this offence are rife and extensive with prosecutions and resultant sentences imposed by the Courts throughout this nation, they have not been publicized. This absence is not only glaring but conspicuous despite the good sense and obvious jurisprudential value of them. 

18. From my research the Courts have imposed varying sentences given the difference in the facts of each case. These cases demonstrate that sentences range as low as a non-custodial term to 3 months and as high as the maximum for a worse case category offence". 

SENTENCING GUIDELINES

22. 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 Michael Kamban  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?

23. 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 

24. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? No, there was 1.6 kg of cannabis.

(ii). Did the offender's actions have only a small adverse effect on other persons e.g.: the members of his family and his community? No, firstly as he indicated in his allocatus that he was very concerned about the welfare of his immediate family and his arrest has deprived them of the K200:00 he normally would have received as his salary as a security guard. 

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, the offence involved a pre-mediated and cunning plan to exchange the cannabis for a TV screen and deck with a person known only to the defendant and so obviously did not take place over a short period.

(iv). Did the offender give himself up before being detected? No, he was apprehended by alert Police personal and escaped from lawful custody at the Jomba Police cell and then fortunately was re apprehended by an alert Police cleaner! 

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

(vi). Has the offender genuinely expressed remorse? No, his comments were all self centered as he attempted to futilely and foolishly I might add here to say that there was no exhibit in his possession when he was rearrested on 2/07/11 conveniently forgetting to mention anything about the 1.6 kg of cannabis that was discovered in a 10kg Roots Rice bag in his possession on the 20/04/11 and which brought about his initial arrest and this brief bout of selective amnesia suffered by the defendant was cured after I pointed out the obvious to him and therefore I do not except his expression of remorse as anything but non genuine. 

(vii). Is this the defendant's first offence? Yes. 

(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 two occasions. 

(x). Has the offender and his family already paid a heavy price for his actions? Yes, his wife and children 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, the defendant stated in his allocates that he was in the process of selling the rolls of cannabis.

(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

25. 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 

26. I adopt my comments I made in Police v Rex Aiye :

"In furtherance to (vii) and (viii) it should be noted that not only might ordinary mitigating factors be given less weight than special mitigating factors but then they must be weighed against the circumstances peculiar to a case and this involves considering the gravity of the offence, it prevalence, the time of committing of offence and its maximum penalty. The aggregate result of this juggling act of judicial discretion is a sentence that befits the crime.

The above comments on mitigating factors are also applicable in the context of aggravating factors"

Categorization of the listed considerations

27. 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 14 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?

28. The mandatory 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  Kirriwom.J 

29. The mandatory minimum penalty for possession of cannabis is 3 months Imprisonment.

30. After weighing all these factors and bearing in mind that there are four mitigating factors compared to nine aggravating factors and one neutral factor, and going by State v Inema Yawok the head sentence should be the starting point of 12 months.

31. The total potential sentence is twelve months.

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

32. In consideration of whether or not all or part of the head sentence should be suspended I consider some principles of sentencing that are relevant to this issue in the following paragraphs.

33. 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". 

34.Kandakasi.J in St v Jason Dungoia  stated that "The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her".

35. To suit the purposes of retribution and rehabilitation sentences should not be too lenient so as to firstly cause a disservice to the community by failing to deter such offenders and secondly to not adequately correspond to the gravity of the offence and having the desired resultant impact on the rehabilitation of the offender.

36. In the National Court case of Cheong v Nemil  his Honour Kearney DCJ held:

"In sentencing for drug offences, a clear distinction should be made between persons engaged in drug trafficking and consumers, including addicts; for all traffickers, including youthful first offenders, the punishment should be particularly severe; for users, a substantial fine with imprisonment in default may often be adequate for first offenders". 

37. In highlighting the nationwide problem of drug abuse and its consequences I refer to and adopt my comment in Police v Ronald Bunap  at paragraph 36 which has its genesis in Cheong v Nemil :

"36. Drug pushers or sellers are a totally different breed and worst type of offenders from consumers and as such deserve to be treated in a manner befitting their status and I certainly subscribe to this view that has been stated by the courts and this defendant being no different will be treated as such".

38. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation.

39. The increase in this type of offence all over this country can only mean one thing that the courts must rise to the occasion and react in kind. 

40. One way of showing people that courts are no longer going to accept such anomalous reasons for exchanging drugs 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 a sentence that is in touch with their aspirations and attitudes.

41. The head sentence should therefore not be suspended in whole or in part as the offence involved 1.6kg of cannabis and is serious enough to be categorized as being 'middle of the range'.

SENTENCE

42. David Tamako 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 twelve months imprisonment;

(b). I order that you serve that sentence in hard labor at the Beon Correction Institution; 

(c). A warrant of commitment in those terms shall issue forthwith. 

REMARKS

43. There are two matters that are of concern to me firstly, is what the defendant informed this court in his allocatus that the reason he had the dangerous drugs in his possession on 20/04/11 was for an exchange with another person for a TV and deck and this is very disturbing as it gives further affirmation to what has been heralded in the media of a cancer taking grip of this nation, that marijuana is being carted over the mountains of this nation to the coast for exchange for tangible items more often than not illicit like high powered guns and ammunition, pornography and in this instant a TV and deck. The unlawful possession of these items in the wrong hands and the carnage these items can cause is indeed a sobering thought. 

 44. Secondly, the matter I cannot understand is how this defendant could possibly forfeit a well paid job and run the gauntlet of detection by law enforcers by attempting the exchange. His immediate family became the biggest losers in the whole episode. Again why he ever embarked on this attempt in the first place is beyond my comprehension. With his well paid job he could have easily saved up and in due course acquired these items through quite legitimate means.

Police Prosecution for the State 
Defendant in Person