State v Peters [2007] PGDC 51; DC567 (30 April 2007)

DC567

PAPUA NEW GUINEA
[District Court of Justice]

CASE NO. 82 – 86 OF 2007.

THE STATE

v

NATHAN PETERS

Tabubil: P. Monouluk
2007: 05th, 14th, March; 04th, 30th April

SENTENCING

Motor traffic – Dangerous driving and unregistered motor vehicle (ss. 17(1) & 22(1) Motor Traffic Act Chp. 243 respectively) – Uninsured motor vehicle (s.59(1) Motor Vehicle (Third Party Insurance) Act Chp. 295) – Failure to affix safety sticker and failure to transfer ownership of motor vehicle within fourteen (14) days (ss. 25B(9) & 23(4) Motor Traffic Regulation Chp. 243 respectively) – Dangerous driving resulted in pedestrian being knocked unconscious and hospitalized for three (03) days – Guilty plea – No previous conviction – Defendant remorseful – Compensation paid – Appropriate penalty – Fine, suspension of driver’s license and community service.

District Courts Act – Application to forfeit motor vehicle – Whether District Courts has such power – No expression provision of law under the Motor Traffic Act – State relies on Section 9 District Courts Act Chp. 40 – Assumption of jurisdiction – Property closely connected to offence in most cases forfeited to the State by the District Courts – Defendant to provide contrary evidence of authority or law – In the absence of such District Courts has power to forfeit motor vehicle.

Practice and procedure – Forfeiture of exhibits – Exhibits must first be tendered to court – Tendering in two manners – Tender upon guilty plea and tender through witness – Guilty plea matter – Motor vehicle not tendered by the State as an exhibit – Court cannot forfeit property not formally tendered and marked as an exhibit.

First Constable PW Stella Warmanai.
Defendant in person.

30th April, 2007.

1. P. MONOULUK: On Monday 05th March 2007 you appeared before this court and pleaded guilty to altogether five (05) charges under the Motor Traffic Act Chp. 243 and the Motor Vehicle (Third Party Insurance) Act Chp. 295. The first charge being dangerous driving under Section 17(1); the second being unregistered motor vehicle under Section 22(1), both under the Motor Traffic Act (supra); the third being uninsured motor vehicle under Section 59(1) Motor Vehicle (Third Party Insurance) Act (supra); the fourth being unroadworthy motor vehicle under Section 25B(9) and the last being failing to change ownership of the motor vehicle in issue under Section 23(4) Motor Traffic Regulation Chp. 243 (supra).

2. The statement of facts presented to the court which you subsequently reaffirmed indicates that you were drunk at the time of the commission of these offences. The court heard that you were seen driving your motor vehicle at an excessive speed after a night out at the Hotel Cloudland, Tabubil, Western Province. Your driving at that time was observed to be dangerous in nature to other road users which saw pedestrians having to jump off to the side of the road to avoid being hit by your vehicle. As you proceeded further you ran into a male pedestrian knocking him unconscious. The victim subsequently suffered injuries and was hospitalized for up to three (3) days. At the time of the hearing of this matter the victim was observed still nursing his injuries particularly to his face. Following the incident it became clearer to the police also that at that time your motor vehicle was unregistered, uninsured, and unroadworthy and you had failed to change its ownership detail from the previous owner to yourself since August 2006.

3. In your explanation to this court you say that at the time of the incident you were in hot pursuit of a person who had caused damage to your motor vehicle while it was parked outside the hotel. You explained that after having damaged your motor vehicle the culprit was making his getaway therefore you tried to intercept him before he made his escape, however, in so doing you unintentionally ran into the victim. In relation to the other charges involving motor vehicle papers, you admitted that you have no explanation as to why you were still driving the vehicle even though the vehicle papers were not in order.

4. Based on your explanations this court then went ahead to enter convictions against you for each of the charges before administering the allocutus. In your plea for leniency you say that you had no intention to harm the victim. At the time of the incident you immediately stopped your motor vehicle and assisted the victim and his female companion before the arrival of an ambulance. You say that you had also visited the victim during the time he spent at the hospital recuperating and, furthermore you have paid a total of K6,000.00 cash in damages to the victim and his female friend. In court I do note that you were remorseful and once more offered your apology to the victim and you say that you do take full responsibility for your conduct. As for the other offences involving motor vehicle paper work, you once more say that you have no excuse to justify your driving on that night.

5. On the part of the State, it calls for this court to be hard on you. It says that you had no excuse whatsoever for having driven the motor vehicle in the first place to the hotel that evening knowing full well that the vehicle’s papers were not in order. The State added that after the incident at the hotel where your vehicle’s windscreen became damaged hence defective and coupled with your intoxicated state, you had became disorientated even more therefore you have no reason at all to continue driving. Despite your condition and that of your vehicle you went on to drive and as a result of your indiscretion you ran into the victim.

6. The State reminded the court that your offences were quite prevalent therefore this court must impose penalties that will have deterrent effect even though you have pleaded guilty to each charge and have paid damages to the victim and his friend. It further reminded the court of s. 35 Motor Traffic Act which makes it mandatory upon a sentencing court to promptly suspend a driver’s licence for a conviction under s. 17(1) of the Act (supra) which you now stand convict of and further more and as a matter of precedent the court must place you on community service for a period of twenty (20) working days.

7. Before I could pass sentence the State seek leave and made further sub-mission this time asking the court to use its discretion to forfeit the motor vehicle as one of the additional penalties. The State’s contention is that the circumstances behind the usage of the vehicle and the subsequent result of the usage coupled with the question of ownership warrants the court to forfeit the vehicle as well. In respond and after consulting a lawyer, you merely say that the court does not have the power to make such an order of forfeiture.

8. The question I must now ask myself is whether I do have the power to forfeit the vehicle in issue to the State. The State in its submission had reminded me of past instances whereby the court had continuously forfeited various property that were closely connected to the various offences that were committed even though there were no express provisions of the law enabling the court to do so. The State further reminded me of s. 9 District Courts Act Chp. 40 which says as follows:

"9 Presumption of jurisdiction

An act done or purporting to have been done by or before a magistrate shall be taken to have been done within his jurisdiction in the absence of proof to the contrary."

9. In making reference to this provision the State says that even though there is nothing in the Motor Traffic Act or the District Courts Act that expressly authorizes my court to forfeit the vehicle I can still assume jurisdiction by virtue of s. 9. Apart from that the State was not able to cite any other authorities to support its application.

10. From passed practices the District Courts has always forfeit or make property deprivation orders where the law dictates or where circumstances warrants as a matter of discretion and the evidence does clearly indicates that there is a direct connection between the offence committed and the property seized as in this case. There are two instances whereby a court assumes power or jurisdiction to deprive offenders or owners of their rights over a seized property before the court. In the first instance the District Court assumes power to forfeit property from provisions of the law which expressly authorizes forfeiture. For example ss. 72, 73 and 73A Firearms Act Chp. 310 are provisions that expressly authorizes the District Court to impose forfeiture orders on firearms as well as other items used in the commission of a firearm related offence such as motor vehicles, airplanes or ships. This is the same with certain provisions under the Liquor (Licensing) Act Chp. 312 and many other laws in placed.

11. Secondly, where there is no express provision of the law that allows forfeiture then the onus now lies with the sentencing court to take it upon itself and use its discretion under s.9 District Courts Act which now acts as a ‘stop gap’ provision – filing in the gaps within the law and anyone who objects to the court having to exercise such forfeiture powers under this provision is now duty bound to call evidence that says otherwise.

12. In answering the question first posed by the court I now rule that as a District Court I do have and always have the jurisdiction or the power to forfeit the motor vehicle pursuant to s. 9 District Courts Act even though there is nothing expressive under the Motor Traffic Act.

13. The next question I must now ask myself is whether the circumstances surrounding this case do warrant the use my discretionary power of forfeiture under s. 9 District Courts Act.

14. I am now reminded that at the time of the offence the motor vehicle papers were all invalid or out of date and you had no excuse to justify still using the motor vehicle despite its conditions. The continued use of the motor vehicle resulted in a pedestrian being knocked down and subsequently hospitalized for about three (3) days. I am also mindful of the fact that the ownership of the motor vehicle is in question, which is another of the reasons why State is seeking forfeiture. The statutory declaration form purportedly to prove ownership of the vehicle by you was not properly tendered to court and the copy brought through the registry does look suspicious as having two different sets of hand writings which appear to have been made by two different individuals. The first style declares that the motor vehicle has been sold and the second indicates that the vehicle was sold to you. Despite that it was signed by only one person. From these points of view held by the State, it is now seeking the forfeiture of the vehicle since it was directly connected to your offences and its proof of ownership remains questionable.

15. However there are three issues that put me on notice which must be addressed first before I can pass judgment on forfeiture. The first issue is the State’s decision or prerogative to have arrested and charged you under s. 23(4) Motor Traffic Act. This provision says that you being the owner of the vehicle did fail to apply to the appropriate authority to transfer the ownership from the previous owner to yourself. I do understand that you had pleaded guilty to the charge, however the point that clearly stands out from this particular charge is that the State had already accepted you as the owner in the first place thus this charged.

16. This provision is only applicable to vehicle owners to the exclusion of others who failed to apply to transfer ownership of motor vehicle. For the State now to say that you have no proof of ownership of the motor vehicle would be inconsistent with its own decision – the decision of the police arresting officer to have you arrested and charged in the first place for failing as the vehicle owner to apply to change ownership. Therefore from my observation the question of vehicle ownership has been settled already by the arresting officer from the start by concluding that you were the owner and subsequently having you charged under this provision that we know is exclusive to motor vehicle owners.

17. The second issue is a matter of procedure. We are aware that the State is seeking the forfeiture of the motor vehicle the subject of these charges. The process leading into such application by the State must start with the vehicle itself being tendered to the court as an exhibit to form part of the State’s evidence against you immediately after the court has ruled on conviction. That was never the case therefore procedurally it would be difficult now for the court to consider forfeiting something that is not part of the evidence offered to it by the State.

18. On these basis I now reiterate that, while this court has the power to forfeit the motor vehicle pursuant to its assumed jurisdiction under s. 9 District Courts Act even though the Motor Traffic Act is silent on forfeiture, the circumstances surrounding the case however do not warrant an application of this discretionary power as yet for reasons I have alluded to earlier on.

19. Before I can pass sentence on you I must revisit the various provisions of the law you now stand convicted under. Section 17(1) Motor Traffic Act says as follows:

"17 Dangerous driving and negligent driving

(1) A person who drives a motor vehicle on a public street negligently, furiously or recklessly, or at a speed or in a manner that is dangerous to the public, is guilty of an offence.

Penalty: A fine of not less than K15.00 and not exceeding K200.00 or imprisonment for a term not exceeding six months, or both."

20. Section 22(1) of the Act (supra) says in this manner:

"22 Unregistered vehicle, etc

(1) Subject to this Act and in particular Section 11, a person who drives, or causes or permits to be driven, on a public street, an unregistered motor vehicle is guilty of an offence.

Penalty: A fine of not less than K20.00 and not exceeding K500.00."

21. Section 59(1) Motor Vehicle (Third Party Insurance) Act says as follows:

"59 Use of uninsured motor vehicle

(1) Subject to this section, a person who uses, or causes or permits any other person to use, an uninsured motor vehicle is guilty of an offence.

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding 12 months or both."

22. Section 25B (9) Motor Traffic Regulation says as follows:

"25B Certificate of roadworthiness

(9) Subject to Subsection (10), a person who on a public street operates a vehicle that does not have affixed to it a current safety sticker in accordance with this section is guilty of an offence.

Penalty: A fine not less than K25.00 and not exceeding K100.00."

23. And finally s. 23(4) of the Regulation (supra) says that:

"23 Sale, etc, of vehicles

(4) A person to whom a vehicle is disposed of must, within 14 days after the purchase or disposal of the vehicle, apply to the Superintendent to have the registration of the vehicle transferred to him.

Penalty: A fine not exceeding K20.00."

24. Looking at these penalties I am now reminded that the State has called for this court to be hard on you as allowed by these laws. From the range of penalties opened to this court, except for s. 17(1) Motor Traffic Act and s. 59(1) Motor Vehicle ( Third Party Insurance ) Act, all other provisions call for monetary penalty as first instance sentences. Unlike the others, ss. 17(1) and 59(1) give the sentencing court discretions to impose either a monetary fine or an imprisonment term as the first instance penalty, subject to the circumstances of the case itself. Apart from that a sentencing court also has discretionary powers under the District Courts Act to impose additional or alternative penalties as we see from the State’s submission that you be placed on community service pursuant to s. 199A of the Act (supra) as well over and above what the penalty provisions of the various charges have stipulated.

25. Bearing in mind the circumstances surrounding your charges, particularly under section 17(1) Motor Traffic Act and its penalty I believe you should go to prison. The nature of your charge alone warrants an imposition of such penalty. Evidence revealed that whilst under the influence of intoxicating liquor and coupled with a defective motor vehicle you persisted and drove the vehicle despite your own condition and that of the vehicle. And while on the road you took no regard for other road users, especially the pedestrians. Again the evidence revealed that many party goers had to jump to the side of the road to avoid you running them down. Despite the fact that there were people on the road your manner of driving did not improved which subsequently resulted in you knocking the victim unconscious. Fortunately the victim recovered well after spending three (3) days at the local hospital.

26. The circumstances surrounding the manner of your driving indeed portrayed a dangerous manner of driving by you therefore you deserve to go to prison as I have said earlier on. However, despite what I have said you should be thankful that there is such a thing called ‘luksave’. I do remind myself that at the time of the incident you immediately stopped your vehicle to assist the victim and his female companion until the ambulance arrived. I do note also that you made time available to visit the victim while he was hospitalized and followed later by you paying damages of K6,000.00 to the victim and his female friend. All these instances are indication of you taking responsibility of your actions and also being remorseful towards the victim and regretful of your misconduct. I am reminded also that you pleaded guilty to the charges which made it easier for all of us involved in this matter and these are also your first convictions.

27. As far as the other charges are concern the penalty provisions make clear that monetary penalties be imposed against you in the first instance which I will shortly impose. I do agree with the State that you have no excuse to justify using your motor vehicle still despite having all its papers not in order. You knew full well that the papers were in such a state yet you went ahead to drive your vehicle on a public road. There are situations whereby the law does allow use of motor vehicles on public roads even though papers are not in order such as in medical emergencies, police emergencies and instances whereby police traffic expressly authorizes use of a motor vehicle for a specific purpose over a specific time. Other than that the law will hold you accountable as we see of you today.

28. I do agree with the State also that you may have possibly been driving your motor vehicle in the past since the expiry dates of your papers and have been doing so behind the back of the authorities therefore God allowed your acts of disobedience to be exposed in such an unceremonious manner to help you change your negative behavior and because a more respectful member of your family and your community. Once again I am reminded that you pleaded guilty to these charges and they are now recorded as your first set of convictions.

29. Having considered all you and the state has to say I am reminded that your offences were not committed under any extenuating circumstances however, I do take into consideration the points raised in your plea for leniency hence I now sentence you as follows bearing in mind the totality principles:

(a) under s. 17(1) Motor Traffic Act I penalize you in these manner:

(i) a maximum fine of K200.00 (ii) in addition to that and pursuant to s. 35 of the Act (supra) I now suspend your driver’s licence for a period of two (02) years; and

(b) under s. 22(1) of the Act (supra) I penalize you in these manner: (i) a fine of K400.00 (ii) in addition and pursuant to s. 199A District Courts Act I place you on twenty (20) days community service; and

(c) under s. 59(1) Motor Vehicle (Third Party Insurance) Act I fine you K400.00; and

(d) under s. 25B(9) Motor Traffic Regulation I fine you K100.00; and

(e) under s. 23(4) of the Regulation (supra) I fine you K20.00.

Orders accordingly.