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Cheong v Nemil [1981] PGNC 64; [1981] PNGLR 472; N340(M) (21 November 1981)

N340(M)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RICHARD CHEONG

V

VINCENT NEMIL

Rabaul
Kearney DCJ

13 November 1981
21 November 1981

MEDICINE - Dangerous drugs - Knowingly cultivating marijuana plants - Minimum penalty prescribed - Whether powers of disposition available under District Courts Act 1963, s. 138(1), s. 206(2) - Dangerous Drugs Act, 1952, s. 7.

MEDICINE - Dangerous drugs - Offences - Penalty - Knowingly cultivating marijuana plants - Minimum penalty three months - Plea of guilty to cultivating 16 plants for own consumption - Three months sentence upheld - Sentencing for drug offences generally - Dangerous Drugs Act 1952, s. 7.

Knowingly cultivating marijuana plants from which a dangerous drug can be made without being authorized to do so is an offence under s. 7(1)(a) of the Dangerous Drugs Act 1952 and the prescribed penalty is "Imprisonment for not less than three months or more than two years".

On appeal against sentence of three months on a plea of guilty where the appellant admitted to cultivating sixteen plants for personal consumption:

Held:

(1) 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.

(2) In the circumstances including the small number of plants for personal consumption, the personal circumstances of the appellant, and the increase in drug offences generally, with the consequent need for deterrent penalties, the sentence of three months was not manifestly excessive and should stand.

Whether minimum penalty under s. 7 of the Dangerous Drugs Act must be passed or whether dispositive powers contained in s. 138(1) and s. 206(2) of the District Court Act are available, discussed.

Appeal.

This was an appeal against sentence on the ground of severity.

Counsel:

M. N. Wilson, for the appellant.
E. Kariko, for the respondent.
Cur. adv. vult.

28 November 1981

KEARNEY DCJ: On 8th October, 1981, the appellant was charged before the District Court at Rabaul with knowingly cultivating "16 marijuana plants, from which a dangerous drug can be made", without being authorized to do so. This is an offence, under s. 7(1)(a) of the Dangerous Drugs Act 1952, punishable summarily, as follows:

"Penalty: Imprisonment for not less than three months or more than two years."

The appellant, who was represented by counsel, pleaded guilty to the charge. The facts are not in dispute. Acting under a search warrant and pursuant to information received, the police entered upon Talilis Plantation and located sixteen "marijuana plants" in a garden. The appellant freely admitted cultivating them. As his counsel urged in mitigation, he "admitted the offence right from the beginning".

A "marijuana plant" is in fact a plant of the genus cannabis from the flowers and leaves of which is derived the hallucinogenic drug variously known as Indian hemp, hashish, bhang, ganja, charas, churrus, marijuana or pot. It is usually prepared in the form of cigarettes, known as reefers. This narcotic is a dangerous drug, under the Act.

As I said, the appellant pleaded guilty. In a carefully reasoned judgment, the magistrate imposed a sentence of three months imprisonment with hard labour. The appellant now appeals to this Court against the severity of that sentence, contending that it is "manifestly excessive".

The magistrate was referred to Henderson v. Blackwell1 as authority for the proposition that despite the references to a minimum penalty in s. 7 of the Act, set out above, there was still available to the court the powers of disposition provided by ss. 138(1) and 206(2) of the District Courts Act 1963. The magistrate accepted that proposition, but considered for the reasons which he stated, that in this case a sentence of imprisonment was nevertheless warranted, and the proper term was three months.

The appeal before me was argued on the basis that Henderson v. Blackwell (supra) was correctly decided. I consider, with respect, that the decision is clearly correct in so far as it affirms that the dispositive power in s. 138(1) of the District Courts Act 1963 remains open to the court; for the penalty provided for in s. 7 of the Dangerous Drugs Act 1952 can only be imposed upon conviction, and the effect of a disposition under s. 138 is that the District Court never proceeds to the stage of conviction.

I have, however, greater difficulty with the proposition that the dispositive power in s. 206(2) of the District Courts Act 1963 remains open to the sentencing court, despite the wording of the penalty in s. 7 of the Dangerous Drugs Act 1952. Section 206(2) provides, in brief, that where a District Court has power to imprison for an offence, but no power to impose a fine, "it may nevertheless, if it considers the justice of the case could be met better by a fine than by imprisonment, impose a fine not exceeding ...". Frost S.P.J. (as he then was) in Henderson v. Blackwell (supra) held s. 206(2) applicable to an offence under s. 7 of the Dangerous Drugs Act 1952, being "content to follow" Makin v. Kelly2.

That case involved a prosecution under s. 220 of the Customs Act 1951, which carried a penalty expressed in the same terms as s. 7 of the Dangerous Drugs Act 1952. Section 244 of the Customs Act 1951 provided:

"No minimum penalty imposed by this Act shall be liable to reduction under any power of mitigation which would, but for this section, be possessed by the Court."

The magistrate considered that because of s. 244 he had to impose the minimum penalty of three months imprisonment, even though he thought the justice of the case required a fine. The appeal before Ollerenshaw J. turned on whether s. 244 had this effect. His Honour held that:

".... the words in Section 244 ...., forbidding the reduction of a minimum penalty, (do not) forbid the substitution of a fine for imprisonment and the reason is that, to my mind, the substitution of a punishment or penalty by fine for a punishment or penalty by imprisonment is not a reduction of that penalty of imprisonment."

His Honour considered that the words "in severity" should not be read in after "reduction" in s. 244. So it was irrelevant that it might be thought that a fine substituted for a term of imprisonment, might be regarded as a reduction in severity.

His Honour considered that the effect of s. 244 was that if the court decided to impose a sentence of imprisonment, the minimum sentence it had to impose was three months; it could not reduce the period of three months.

On this approach there was no collision between s. 244 of the Customs Act 1952 and the then equivalent of s. 206(2) of the District Courts Act, and his Honour substituted a fine of K20.

Frost S.P.J. in Henderson v. Blackwell3 considered that because of s. 244, the legislation considered in Makin v. Kelly4 "was in stronger terms ... than in the present appeal".

I would, with great respect, express some doubt as to whether the discretionary power in s. 206(2) of the District Courts Act can stand against the wording of the penalty in s. 7(1) of the Dangerous Drugs Act. The sole question here, I think, is whether the legislature, in enacting the (later) minimum punishment provision, intended thereby impliedly to exclude the power of the court under s. 206(2), with respect to s. 7 offences. See the discussion in Rose v. Hvric5. It seems to me it is very arguable that such exclusion was intended. However, the question has not been argued before me, the case has proceeded upon the base that s. 206(2) powers were available, and the appeal may be decided without the need to resolve the matter.

As I have said, the magistrate expressed his reasons for sentence, in a full and careful way. He accepted that he did not have to impose a term of imprisonment. He took account of the excellent character of the appellant, as deposed to by no less than ten persons of repute. He took account of some unfortunate personal circumstances of the appellant.

On the other side, he took account of the police submission that "the matter is becoming very serious in PNG". He took account of the penalty as laid down in s. 7. He noted that—"in the past this offence was not considered to be serious ... it is becoming more prevalent."

He then asked himself three questions:

"(1) Is this the first case of its kind in Rabaul or PNG?" The answer was obviously, "no".

"(2) Are only expatriates involved in this activity?" By "activity" he meant "drug trafficking" as he went on to say—"The activity of drug trafficking is being experienced in PNG at this point in time ... not only expatriates are involved, but nationals too."

There is in fact not the slightest suggestion that the appellant is a "trafficker".

"(3) Has this country stopped developing?" And of course the answer to this was, "no".

His Worship then considered the seriousness of the offence, and all the other matters. He decided to impose "the kind of penalty that cannot be seen as a deterrent, but as a lesson to others". This clearly indicates, despite the language, that he had the concept of general deterrence in mind.

This case has caused me considerable difficulty. 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 simply consumers (including addicts). The former will always be imprisoned and for a lengthy term. For the "harder" drugs, such as heroin, the punishment for trafficking will be particularly severe. The drug traffic will not be tolerated. And that applies to youthful first offenders, as well. For the users, a substantial fine, with imprisonment in default, may often be seen as adequate for a first offence; by no means, is a sentence of imprisonment always called for. However, I should say that I do not think the magistrate regarded the appellant in any way as a drug trafficker, despite his reference to that subject; nor was this urged upon this Court.

In the light of the circumstances in this case—only a few plants being cultivated, clearly for personal consumption, and of the personal circumstances of the appellant—a sentence of imprisonment is, I consider, a heavy punishment. In some other jurisdictions, a sentence of imprisonment in such circumstances would be quashed, as being manifestly excessive.

Nevertheless, heavy though I consider it to be, I am quite unable to say that a sentence of three months imprisonment in these circumstances, is manifestly excessive. Sentencing is a discretionary matter, and an appellate court has a restricted role. I adhere to the views I expressed in Norris v. The State6.

Here, the magistrate exercised his discretion with care. No error on his part has been disclosed, which would have the effect of vitiating his exercise of that discretion. In my view, in the light of the statutory penalty, it cannot be said that a sentence of three months was out of reasonable proportion to the circumstances of the offence. Since I cannot detect any substantial miscarriage of justice as required by s. 236(2) of the District Courts Act, it follows that the appeal against the severity of sentence cannot be allowed.

Appeal against sentence dismissed.

Sentence of 3 months imprisonment, affirmed.

_________________________________________________

Solicitors for the appellant: Warner Shand, Wilson & Associates.
Solicitor for the respondent: L. Gavara-Nanu, Public Prosecutor.