Police v Kepa [2020] PGDC 24; DC4080 (19 November 2020)

DC 4080

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 820 of 2020
BETWEEN

THE POLICE
Informant

AND

PEPNA KEPA
Defendant

Waigani: S Tanei

2020: 19^th of November
      

TRAFFIC OFFENCE – Negligent Driving – s 40(1)– Road Traffic Act 2014

TRAFFIC OFFENCE- Sentence – Plea of Guilty – principles of sentencing discussed and considered – Negligent Driving- Mitigating Factors and Aggravating Factors considered – Fine of K 3, 000.00.

Cases Cited

State –v- Dua (2013) PNGNC 8; N4957
Police –v- Albert Manape WTC 740 of 2020,21.09.2020,Unreported.
Police –v- Noel Henao WTC 744 of 2020, 21.09.2020, Unreported.
Police –v- Gispe [2020] PNGDC 17; DC4073

References

Legislation

District Courts Act 1963
Road Traffic Act 2014
Counsel

Sergeant Emmanuel Bigam, for the Informant

The Defendant in Person

RULING ON SENTENCE

19^th November 2020

S Tanei: The Offender, Pepna Kepa pleaded guilty to one count of Negligent Driving on 28^th October 2020.

2. This is my ruling on sentence.

FACTS:

3. The Offender, Pepna Kepa was charged with one count of Negligent Driving under section 40 (1) of the Road Traffic Act 2014.

4. Pepna Kepa pleaded guilty to the following facts;

5. On 10^th October 2020 at around 3.46 am, Pepna Kepa, drove a Motor Vehicle namely a blue Toyota Land Cruiser Station Wagon bearing registration number BFV 212 along the Poreporena Freeway at Burns Peak in the National Capital District.

6. At that time, the Offender drove the vehicle over the pavement and into the opposite lane and hit a vehicle namely a Isuzu Dyna with registration number BFX 715. He was driving under the influence of liquor.

7. Police arrived on the scene of the accident and questioned the Offender immediately. When questioned at the scene, he appeared confused as he did not know where he was. He later confirmed that he had been drinking at Aviat Club earlier and was on his way to Gerehu when the accident occurred.

8. The Offender was then taken to the Police Station, cautioned, arrested and charged with Negligent driving.
ANTECEDENT REPORT

9. The Offender is 36 years old and hails from Togoba Village in Tambul-Nebilyer District, Western Highlands Province. He is married with 3 children and resides at Gerehu, NCD. He is self employed and has no prior convictions.

ALLOCOTUS:

10. During Allocotus, the Offender said he was sorry for what he had done. He also stated that he had never been involved in an accident before. He also stated that he is the only breadwinner in his family and he is self employed. He asked the Court for leniency when it hands down his sentence.

ISSUES:

11. The Court is faced with the following issues;

1. What is the sentence the Court should impose on the Offender?
   

THE LAW

12. Section 40 (1) of the Road Traffic Act 2014 provides that;

“(1) A person who drives a motor vehicle in a careless or negligent manner on a public street is guilty of an offence.

Penalty: A fine not exceeding K6,000.00”

SENTENCE
13. In deciding on the appropriate sentence the Court must be guided by sentencing principles.

14. I will adopt the decision making process applied by His Honour Justice Cannings in the case of State –v- Dua (2013) PNGNC 8; N4957 and the recent cases of Police –v- Albert Manape WTC 740 of 2020, 21.09.2020, Unreported and Police –v- Gispe (2020) PNGDC 17; DC4073 . In those cases, the the following decision making process was used:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
  

Step 1: what is the maximum penalty?

15. The maximum penalty for this offence is a fine of K 6, 000.00. This is reserved for the worst case scenario.

Step 2: what is a proper starting point?

16. In the cases provided above, I held that the proper starting point would be the mid-point since the Prisoner pleaded guilty.

17. In our case, the mid-point would be an amount of K 3, 000.00 fine. I will then work up or down depending on the mitigating and aggravating factors.

Step 3: what sentences have been imposed for equivalent offences?

18. As in the cases mentioned above I will rely on the mitigating factors and aggravating factors and work up or down from the mid-point.

19. I could not find any reported case that deal with this offence and as such I will use the mitigating and aggravating factors and other factors to decide on an appropriate sentence.

Step 4: what is the head sentence?

20. The mitigating factors are;

1. The offender pleaded guilty to the offence right after he was arraigned.
2. The offender is a first time offender with no prior convictions.

100. He showed genuine remorse.
     

21. The aggravating factors are;

1. He was heavily intoxicated with liquor.
2. He crossed over the freeway and drove into another vehicle on the opposite lane.

100. He failed to keep a proper look out.
     

22. When considering the aggravating factors and the mitigating factors, the mitigating factors and the aggravating factors level against each other.

23. In submissions on sentence, Sergeant Bigam of Police Prosecutions submitted that this offence is a serious offence and the Court must impose a sentence that reflects the seriousness of the offence.

24. I uphold the submissions by the Prosecutor in that this offence is a serious offence as this is reflected in the penalty provision of the offence.

25. I find that the Offender co-operated well with the Police when he was arrested. Also, he showed very genuine remorse during allocotus and there was no serious damage to the vehicle his vehicle ran into. Police did not provide any further exhibit or information regarding the other vehicle, hence, I make no finding as to the extent of damage it suffered.

26. I note the submissions by the Offender that he is self-employed and that he is the single breadwinner in his family and is not in a position to pay a hefty fine. However, it is my view that breaking the law has its consequences and if the Court is to decide on an appropriate sentence, the Offender’s financial position is not one of the factors the Court will take into account.

CONCLUSION

27. Considering the above, I find that the appropriate penalty would be fine of K 3, 000.00.

COURT ORDERS

28. The following are the formal orders of the Court;

1. Pepna Kepa, having pleaded guilty and being convicted of the offence of Negligent Driving under section 40 (1) of the Road Traffic Act is to pay a fine of K 3, 000.00
   
2. The Offender’s Bail of K 1,000.00 is forfeited and converted to Court fine and pays part of the total fine.
   
3. The Offender shall pay the balance of K 2, 000.00 within the next seven days, in default, the offender shall spend 2 months in prison with hard labour.
   
4. The matter shall return on 30^th November 2020 at 9.30 am for the Court to check compliance of these orders.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person