State v Mori [2009] PGDC 2; DC690 (23 January 2009)

DC690

PAPUA NEW GUINEA
[THE DISTRICT COURT OF JUSTICE]

DCCr NO. 387 OF 2008

THE STATE

V

ERIC MORI

Tabubil: P. Monouluk, SM
2008: 31 October; 24 December;
2009: 05, 14, 23 January

SENTENCE

MOTOR TRAFFIC ACT – Driving motor vehicle on public road whilst under suspension – Section 36A(b)(i) Motor Traffic Act Chp. 243 – No extenuating circumstances – Charge held back as an attempt to sabotage State’s case – Defendant applied tinted film to wind shields to cover illegal driving – Minimum penalty provision – Appropriate penalty – Imprisonment of 07 months.

References:

1. Motor Traffic Act Chp. 243, s.36A(b)(i)
2. District Courts Act Chp 40, 132
3. Criminal Code Act Chp. 262, s. 19

Counsel:

F/Constable PW Mary-Stellar Warmanai for the State
Defendant in person

23 January 2009.

1. P. Monouluk, SM: On the 24th December 2008 the defendant Eric Mori pleaded guilty to a charge of driving a motor vehicle on a public road whilst his driver’s license was under suspension in contravention of s. 36A (b)(i) Motor Traffic Act Chp. 243.

2. The statement of facts presented to the court by the State and reaffirmed by the defendant revealed that on Thursday 28th August 2008 at about 12:30 in the morning the defendant was the driver of his motor vehicle returning from a beer party when it ran off the road. The matter was brought to the attention of the police who investigated further and found out that the defendant, at the time of the incident, was a suspended driver hence this charge.

3. This is an interesting case. In December 2007 the defendant was convicted by this court for a driving infringement under the Motor Traffic Act (supra) and, among others, had his drivers license suspended for a period of two years. This suspension is still current and will lapse in 11 months time (19th December 2009). On the 12th September 2008 the defendant was once more arrested and charged for being the drunk driver of a ditched motor vehicle in the early hours of Thursday 28th August 2008 at the Migalsim village, Tabubil, WP.

4. The arresting officer in this matter was a police officer based in Tomaringa, Rabaul, ENBP and was on a tour of duty with the Mobile Squad #17 in Tabubil at the time of the incident. Seven weeks after charging the defendant the officer returned to Rabaul on or about the 21st October 2008. Ten days thereafter the information was presented to the court and the defendant pleaded not guilty to the charge and State immediately informed the court that a trial may not be possible since its principle witness has left Tabubil. Despite the plea by the State the court directed that the State look for available means to return the witness to testify. The matter subsequently underwent numerous adjournments till the 24th December 2008 where the witness was made available in court. Upon his arraignment the defendant changed his earlier not-guilty plea to guilty to everyone’s surprise. His explanation: he was confused back in October 2008 so he pleaded not guilty.

5. In his submission on mitigation the defendant pleaded for a non-custodial sentence. He gave his reasons explaining that he has a family to look after and also has business activities to manage. He went further to admit that despite the suspension order of December 2007 he continued to drive because he was the only person his family relied on to ensure his family’s welfare and needs were adequately met; basically he is relying on family considerations. He also apologized for having to drag the case this far because of the confusion he had over the charge.

6. The State reminded the court that this is a minimum penalty provision and the court must impose the prescribed penalty as stipulated under the law. It reminds the court further that the defendant was apprehended soon after he ran the motor vehicle off the road at about 12 midnight after a beer party; he obviously was not tending to family needs and therefore cannot rely on family consideration to justify his behaviour. Furthermore, the State asked that the court take note of the fact that the defendant had tinted all the wind shields of his motor vehicle after the suspension order against his license was made in 2007. This, it says, is a clear indication that he has been driving his motor vehicle for sometime whilst under the cover of the tinted shields. The State says that such behaviour by the defendant is a clear indication of his defiance of the suspension order and his disrespect for the authorities.

7. We must understand what the law says of this type of incident. Section 36A (b)(i) of the Act (supra) is in these terms:

"36A Driving while disqualified

A person who drives a motor vehicle on a public street –

(a) ...

(b) while his –

(i) driving license; ...

has been suspended by order (sic) of a court,

is guilty of an offence.

Penalty: A term of imprisonment not less than three months."

8. This is a minimum penalty provision. It simply means that the convicted driver must go to prison and must do so for a term not less than three months. In other words the sentencing court has no discretion to impose a penalty other than an imprisonment term of three months or more. In that type of situation when a court finds a driver guilty he or she stands to go to prison for at least three months; anything less is illegal. The only discretion left to a sentencing court is its power to decide on the length of time for the driver to serve and that is anything between three months or more, depending on the assessment by the court. However, the only recourse there is for a convict facing a minimum penalty before a District Court, whether under this provision or any other law, is available under s. 132 District Courts Act Chp 40 where the convict may avail himself of it, subject to the stipulated conditions thereof. Similar provision is provided for under s. 19 Criminal Code Act Chp. 262 for offences under the Code.

9. For our case the defendant clearly cannot avail himself of s. 132 District Court Act (supra). The matter he is now convicted of is serious because he had defied a court order and he has no reasonable excuse to justify the breach. Although he raised family consideration as an excuse to continue driving despite the suspension order, at the time of this new incident he was found to have been drunk and driving at about 12:30 in the morning after a night out with friends, and his family was no where in sight. In any case s.132 can only be relied upon prior to the court making a conviction ruling after the statement of fact is reaffirmed by the defendant and not after. In the present case the defendant cannot avail himself of it because the court has already entered a conviction and as it is he now stands to face whatever penalty prescribed for under the breached provision of the law.

10. We know by now that the defendant is a driver whose license has been suspended for a period of two years and the suspension is still current. During his suspension he continued driving on many occasions and that was revealed in his submission on penalty. It is not denied also that the tinted wind shields on the vehicle were put in place after the suspension order for the defendant presumably to avoid being seen driving the motor vehicle. Furthermore, as a simple matter, it took longer than usual for the State to bring the matter to court at the end of October 2008. In fact it took about seven weeks from laying of the charge on the 12th September to presenting the charge in court on the 31st October.

11. Having considered what the defendant and the State has to say, may I ask myself what is the appropriate penalty for the defendant. From the outset may I reiterate that the defendant has been convicted under a minimum penalty provision and as such will have to be imprisoned. In my review of the case and its circumstances I am of the view that the defendant has no excuse, whether legally or morally, to justify driving whilst under suspension. It was an intentional defiance of the law and the defendant knew the consequence of such defiance. His excuse of family welfare cannot be accepted and I do agree with the State on the point that I cannot ignore the fact that the defendant was out partying in the night and not attending to his family needs when he ditched the motor vehicle.

12. There is nothing special concerning the circumstances of the defendant that may warrant his vehicle having tinted wind shields. The defendant is a simple villager, married with three children and that is all. The vehicle itself is a single cab Toyota hylux with a no air conditioner so why wound up tinted shields, may I ask. Furthermore, the fact that the defendant had instilled tinted wind shields on his vehicle soon after the suspension order was made gives rise to a reasonable suspicion by the State.

13. While he may have the freedom to chose what he wants to do with his vehicle, such freedom must be exercised with a duty of care and responsibility and, of course, within the confinement of the law and not used to deliberately breach laws and court orders as we now see of the defendant. One must be reminded that various freedoms and rights guaranteed under the Constitution and else where can be curtailed by others laws and by the orders of the courts where necessary to preserve public good in the wider community and to avoid further abuses. Countless crimes have been committed and will be committed still with the aid of tinted wind shield motor vehicles which have made the work of the police and other authorities difficult. We have seen criminals, shady characters and people engaged in unscrupulous activities taking advantage of tinted glass vehicles. Under-age drivers, drunk drivers and suspended drivers are also doing the same as we see of the defendant today.

14. The next point is the timing of presenting the charge before the court by the State. As I have said earlier this simple matter took seven weeks to come to court. By the time it was presented on the seventh week the defendant conveniently pleaded not guilty knowing that the principle State witness had already left Tabubil a week earlier. The defendant would have saved us a lot of time and money had he pleaded guilty in the first instance. On the part of the State, there appears to be no urgency to bring the charge to court at the earliest bearing in mind that the State witness who was the arresting officer was on a tour of duty himself and would depart Tabubil on short notice. And upon the presentation of the State witness after two months of waiting and after so much time and money was spent to bring in the witness from Rabaul the defendant, without much effort, changed his plea to guilty. To me this is a deliberate attempt to sabotage the State’s case against the defendant. I must commend the effort and the persistence of other committed officers who ensured that the matter was able to come this far.

15. Having considered what the parties have said in their submissions and having reviewed the defendant’s antecedent report I must say that the defendant has before me previous convictions of similar nature in 2003 and in 2007. All to do with drink driving, unregistered and uninsured motor vehicle and drinking alcohol on moving vehicle. This is an indication of a habitual offender; someone who has no regard of the existence of the law and what it seeks to achieve for the community. I have considered sentencing the defendant to 10 months imprisonment however I am reminded that he had pleaded guilty and appeared to be limping in court therefore I have decided that his penalties be in this manner:

(a) imprisoned for a term of 07months in light labour; and

(b) meet 75% cost by the State to bring in the witness from Rabaul, ENBP in default two months imprisonment; and

(c) the suspension of his driver’s license be extended for another 12 months from 19th December 2009 to 19th December 2010;

(d) the tinted wind shield films of his motor vehicle be removed forthwith and not be replaced during the period of his license suspension.

Orders accordingly.