DC2038
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

DCR 862/2011

BETWEEN

POLICE
Informant

AND

NAGEL TEGABANI
Defendant

Madang: J.Kaumi
2011:27th 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-Knowingly Possessing Dangerous Drug-Mandatory Minimum Penalty-Three months- Dangerous Drugs Act Chapter 228, Part II, Control of Dangerous Drugs – Section 3 (1) (d).

A forty three year old man 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 

Cases cited
Acting Public Prosecutor v Don Hale SC564 
State v Inema Yawok [1998] N1766 (16/06/1998) Kirriwom.J 
State v Jason Dungoia (13/12/00) N2038
State v Michael Kamban Mani (21/05/02) N2246 Kandakasi.J
Kovi v The State [2005] SC 789 (31/05/05) Injia DCJ, Lenalia & Lay JJ 
The State v Raka Benson (2006) CR 447&450 Cannings.J
Saperus Yalibakut vs. The State SCRA No 52 of 2005; 27.04.06(Jalina J; Mogish J Cannings.J )
Police v Numan Kanai DCR 517/2011
Police v Rex Aiye DCR 695/2011

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

DCR District Criminal
DDA		Dangerous Drug 1952 Act Chapter 22
J		Justice
M Magistrate
N National Court
S C		Supreme Court
SCR		Supreme Court Reference
SECT		Section
ST		State
SECT		Section
V		Versus

Counsel

 Senior Constable Walter Watakapura for the Police Prosecution.
Defendant in person.

INTRODUCTION

1. Kaumi. M. Nagel Tegabani, 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 entered a conviction against you.

FACTS

3. That on Monday the 25th of July 2011, at about 11:00 am, the defendant now before the Court namely Nagel Tegabani was standing with one of his friends on the footpath in front of Yogo Trading Store in Madang town, Madang Province. 

4. On the mentioned date, time and place the duty members of police were on a foot patrol in the said area when they detected the scent of marijuana and saw its fumes and following this they came upon the defendant holding a joint of marijuana in his right hand that was wrapped in newspaper and busy smoking it. The defendant was asked to handover the said drug but instead put his hand behind his back squashed it and then threw it some distance away. The Police personal with the assistance of security guards were able to locate it with a piece of it beneath his feet.

5. The defendant was then apprehended and taken to the nearest Police Station where formal process of interviewing and investigation was done. The defendant was later taken to Jomba Police Station where Police formally cautioned, arrested and charged the defendant, told of his constitutional rights and placed him in the Police cells.

ANTECEDENTS

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

(a)	You are 43 years of age and come from Mekarope village in the Bogia District of the Madang Province; 

(b)	You are unemployed and reside at Mekarope village with your family.

(c)	You are single and have no prior convictions;

 ALLOCATUS

7. In your address on sentence you stated the following, "I come from the village and need to go back there and I ask for a court fine". 

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

SUBMISSION BY STATE

9. Senior Constable Watakapura made a short verbal submission and a paraphrased summary of his response follows:-

(a.)	The offence for which the defendant is charged with was serious and a very prevalent one in this province;

(b.)	The charge's penalty clause prescribed a penalty of a term not less than 3 months and not exceeding 24 months;

(c.)	The circumstances of this matter called for a deterrent punishment to be imposed and this could only be achieved thru imprisonment. 

OTHER MATTERS OF FACT

10. 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

11. 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 

12. 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?

13. 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?

14. 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.

15. 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

16. I continue to subscribe to certain views with regard to the aspect of sentencing trends I adopt the comments I made in Police v Rex Aiye on this point 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". 

17. 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.

SENTENCING GUIDELINES

18. With the greatest respect the above statistics and publicized judgments do not assist much by way of elaborating guidelines 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.

19. Having alluded to the above comments I also bear in mind that the determination of appropriate punishment for a particular case is an exercise of judicial discretion, the process involving the consideration of such factors as:-

 (i). the seriousness of the offence;

(ii). the gravity or otherwise of the offence;

(iii).the personal circumstances of the defendant which aggravate or mitigate the punishment;

(iv). the interests of the community in ensuring the punishment achieves its purposes and thereby curtailing the use of a tariff. Kovi v The State 

20. 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:-

 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?

21. 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. 

22. These considerations are as follows:

Considerations

(i). Was only a small amount of dangerous drug involved? Yes, there was one roll 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? Neutral, there is no evidence of this. 

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, the defendant standing with a friend so engrossed in smoking the joint of marijuana that its scent and fume were seen and smelt by police who followed it's trail and caught the defendant red-handed so to speak. He then attempted to conceal the drug even when confronted by police and these events obviously took time and cunning.

(iv). Did the offender give himself up before being detected? No, he tried to avoid detection by the police who were asking for the drug by throwing away his half smoked roll of cannabis which caused the Police to enlist the help of security guards to find the drug. 

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

(vi). Has the offender genuinely expressed remorse? No, his comments expressed were self centered and no remorse whatsoever was expressed when given the opportunity to do so. 

(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 all five occasions. 

(x). Has the offender and his family already paid a heavy price for his actions? Neutral, there is no evidence of this. 

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

(xii). Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? No, the offence involved a defendant who had what can only be described as total disrespect and contempt for the law and one who apparently threw caution to the winds and decided to leisurely smoke a joint of marijuana in the full view of the public in the heart of Madang Town and at a peak business hour, where did he think he was, in his village!. 

(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

23. 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. 

 24. 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

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 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?

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 seven aggravating factors, three neutral factors and I note that factors 3, 4 and 12 to be strongly aggravating and going by State v Inema Yawok , the head sentence should be the starting point of 3 months.

28. The total potential sentence is three 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.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".

31. In consideration of the strong aggravating factors I cannot see how the head sentence can be suspended in any manner or form, suffice to say that the only punishment befitting the circumstances of the matter is for the head sentence to remain as it is.

SENTENCE

32. Nagel Tegabani 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 three 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. 

Police Prosecution for the State 
Defendant in Person