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Munny v Kamiave [1998] PGDC 3; DC26 (4 March 1998)

Unreported District Court Decisions

[1998] PNGDC 14 - SAUN MUNNY V BEAM KAMIAVE

[1998] PNGDC 14

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 148 OF 1998

SAUN MUNNY (Informant)

v

BEAM KAMIAVE (Defendant)

Kimbe

P Monouluk M

4 March 1998

CRIMINAL LAW - Inpossession of Dangerous Drug namely, Cannabis - appropriate penalty - sentencing discretion - s138(1) District Court Act (Ch40) - not available.

Cases referred to:

Lako Kerekere v Robin Miria [1983] PNGLR 277

Representation:

Counsel/Representative:

Informant: S/C Tumbari

Defendant: In person

P MONOULUK M:

N1>[1]����� The defendant pleaded guilty for having in his possession a dangerous drug namely 600 grams of cannabis contrary to s3(1)(d) of the Dangerous Drugs Act (Ch228).

N1>[2]����� It was alleged that on 22 January 1998 the defendant went to the Air Niugini cargo office in Kimbe, WNBP and collected a small box containing cabbages and 600 grams of nicely packed dried cannabis sent from Goroka, EHP to the defendant's address. The defendant was at that time under police surveillance and was apprehended as he was carrying the box into his office premises.

N1>[3]����� Upon arraignment the defendant fully admitted that he was in possession of the box containing the drugs and further more he confirmed the statement of facts presented. In addition to that the defendant said prior to collecting the box he received a telephone call from Goroka and a 'mysterious caller' informed him within 2 seconds before hanging up that a box of 'kumu' has been sent to him (defendant) and the caller also gave him the box consignment number (1555428), all within 2 seconds of a minute.

N1>[4]����� The court had the benefit to consider the defendants explanation and finds that such explanation cannot be accepted. First the defendant has no good convincing reason as to how a 'mysterious caller' from Goroka (where defendant himself is from) would out of 4.5 million Papua New Guineans, choose his name and address and sent him the box of 'kumu'. No one persons in his right mind would go through the trouble and expenses (like the mysterious caller did) to purchase cabbages and send them by air cargo from Goroka to Hoskins to someone the caller himself does not know. The 'mysterious caller' knew who he had called and sent the box to.

N1>[5]����� Secondly the defendant's explanation that the entire conversation between himself and the 'mysterious caller' took only 2 seconds cannot be accepted also. To say 'kumu kam pinis' (vegetables on their way) and to read out the consignment number (1555428) cannot be practicable to take down within 2 seconds. It certainly needs more time to take down the consignment number which is seven figures and from experience it will take some more time to go over the figures to make sure they are correct. In any case it appears that the defendant was more interested in recording the time it took for himself and the 'mysterious caller' to converse rather than paying attention to recording the consignment number and finding out the identity of the caller yet interestingly enough was able to recite the numbers at the Air Niugini cargo office to collect the box.

N1>[6]����� Even if that is so the court is mindful that s3(1) of the Act (supra) was amended in 1990 in which the word 'knowingly' was deleted leaving behind a new provision which reads:

"A person who is in possession of or conveys a dangerous drug or a 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."

N1>[7]����� The amendment purports to make the offence of cultivating or inpossession or conveying under the Act as one of strict liability hence for the defendant to have possession of the cannabis without prior knowledge is sufficient in law. Knowledge is no longer an element of the charge.

N1>[8]����� The penalty provision under s3(1) of the Act (supra) is imprisonment not less than 3 months and not exceeding 2 years. I must admit that the penalty is inadequate in the light of the current escalating drug offences involving large quantities and organized syndicates. The National Parliament must legislate higher penalties if it is serious about law and order in the country.

N1>[9]����� Although the minimum penalty is 3 months imprisonment, the court is not bound by such but may use its discretion to make such other orders where the court thinks the justice of the case can be adequately met. Section 132(1) of the District Courts Act (Ch40) is the only provision which allows for conditional release of a defendant.

N1>[10]��� In Laho Kerekere v Robin Miria [1983] PNGLR 277 the National Court held that the discretionary dispositive power contained in s138(1) of the District Courts Act (the predecessor of s132(1)) is available to a court dealing with a minimum penalty offence like s3(1) of the Dangerous Drugs Act. Amet J went further at p279 to qualify the application of s138(1) of the District Courts Act 'only in the event that the court has not proceeded onto conviction.' This is not the case at hand. A conviction has been entered thus s132(1) (supra) cannot be considered which leaves the court no option but to go directly to the penalty provision under s3(1) of the Dangerous Drugs Act.

N1>[11]��� The defendant pleaded that he has lived in Kimbe for 14 years. During this time he has not committed any offence. In his community he is a church elder with Four Square church and prays that he be placed on probation. I find such as inexcusable for a married person of 32 years of age and a father of two on a full time employment. A person of his age and status as a husband, father and a church elder should be more wiser. The defendant can be described as a wolf in sheep skin - pretending to win souls for the kingdom of Heaven yet secretly engaging himself in illegal drug dealings.

N1>[12]��� Anyone who holds a position of trust including pastors or church elders will not be given special considerations but can expect harsher punishment should he steps out of line.

N1>[13]��� In considering an appropriate sentence under s3(1) of the Act (supra), the court had the benefit to consider the defendants character, antecedent, age and health. I had to remind myself of the need for deterrent purposes given the high incidences of drug offences in the province and country as a whole. Otherwise there was no extenuating circumstances under which the offence was committed therefore I consider 18 months IHL as sufficient. Bail be refunded.

N1>[14]��� Sentenced accordingly.