Bate v Nea [2021] PGDC 165; DC7023 (23 November 2021)

DC7023

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 282 of 2021
BETWEEN

THOMAS BATE
Informant

AND

KOSE NEA
Defendant

Waigani: O Ore Magistrate

2021: 23^rd of November
      

TRAFFIC OFFENCE – Driving Without Due Care and Attention – s 28(2) (a) – Road Traffic Rules- Road User Rules 2017

TRAFFIC OFFENCE- Sentencing – Plea of Guilty – Discretion of Court to impose appropriate penalty – Consideration of Mitigating and Aggravating Factors – fine of K500

PNG Cases Cited

Vagi Gau v Ken Kone Eava [1976] PNGLR 485
Police v Alex Buna DC 4079

Overseas Cases

Nil

References

Legislation

Road (Offences & Penalties Regulation) Act 2017
Road Traffic Rules – Road User Rules 2017

Counsel

Wamuru J, for the Informant

The Defendant in Person

RULING ON SENTENCE

23^rd November 2021

1. O Ore, Magistrate: Kose Nea was charged with one count of Driving Without Due Care and Attention under section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
   
2. He pleaded guilty to this charge on the 27^th of October 2010. A provisional plea of guilty was entered in the first instance. It was only after he had confirmed his plea after the summary of facts was read to him that a plea of guilty was entered.
   
3. Submissions on sentence were made by both the Police Prosecutions and the accused on 16^th of November 2021. Both submissions were brief as written submissions were filed earlier and were on the Court file.
   

FACTS

4. The following are the summary of facts in which Kose Nea accepted and pleaded guilty to.
   
5. On Friday 24^th of September 2021 at 7:45pm, Kose Nea a 45 year male from Sopas Village, Wabag, Enga Province was driving an Isuzu NPR Truck white in colour with the registration number BGC 969 along Gobon Street Gordons.
   
6. At that time, Kose Nea was driving at the rear of a vehicle a Toyota Mark II Sedan coloured Red/Orange with the registration number T9147. The Defendant thought that the sedan had taken off already and when he took off, he bumped into the rear of the sedan causing damages to the sedan.
   

ANTECEDENT REPORT

7. The antecedent report shows the accused to be a 45 year old male married with 3 children. He is employed by Black Swan Security and earns K580 per fortnight. He resides at Gerehu Stage 6, NCD and has no prior convictions.
   

ALLOCUTUS

8. During allocutus, the accused expressed his remorse and said he was very sorry for the accident that happened. He said that he thought that the Taxi had taken off and mistakenly bumped into its backside and it was a genuine mistake on his part. He further stated that this was his first time to get involved in such an accident. He further stated that he was the sole bread winner of the family and that he had a wife and children who are in school who depend entirely on him.
   
9. He asked for the court to show mercy and be lenient on him.
   

ISSUE

10. The issue before this Court is what sort of punishment should be imposed on the Defendant.
    

RELEVANT LAW

11. The Defendant has pleaded guilty to the offence of Driving without due care and attention under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
    
12. The penalty itself for such an offence is provided for under Schedule 1 of the Road (Offences & Penalties Regulation) Act 2017 and carries a maximum penalty of K2500 as fine and an infringement fee of K500.
    

SENTENCING

13. Sentencing is a discretionary power that is vested in the Courts. In deciding the appropriate sentence, the Courts must treat each case according to its own background with each convicted individuals treated as a separate person. See the case of Vagi Gau v Ken Kone Eava [1976] PNGLR 485.
    
14. In their submissions, the Prosecution submitted that a maximum fine of K2500 be imposed, in default 3 month imprisonment. I will not consider the submission on 3 months’ imprisonment in default because the maximum allowable penalty under the Road (Offences & Penalties Regulation) Act 2017 is K2500.
    
15. I also find it confusing that the Prosecutions have further submitted that a lighter penalty be imposed since the accused had pleaded guilty and did not waste the Court’s time. They want the highest or the maximum penalty to be imposed and at the same time are asking for a lighter penalty.
    
16. The accused in his submission apologised to the Court. He submitted that what happened was an accident and that he was not entirely at fault. He submitted that the Taxi driver in front of him made a sudden stop when its driver saw a customer and it was too late for him to apply the brakes and he hit the rear of the Taxi. He however admitted that he was at fault and repeated most of what was said in allocutus and asked for mercy.
    
17. I must also point out that during his submissions, I found the accused to be very apologetic and he showed genuine remorse.
    

Starting Point

18. Before considering an appropriate penalty, I must first establish a starting point. Since the accused pleaded guilty, I adopt the principal in Police v Alex Buna DC 4079 for an offender who pleads guilty and find the starting point to be the midpoint of K2500 which is K1250.
    
19. It is now up to the Court to decide on the appropriate penalty to be applied. In the exercise of my discretion, I will consider the circumstance or the background of the case and also treat the offender as a separate individual.
    
20. In considering the background of the case, I find this to be a less serious case. I say this because there is nothing before me showing the damage sustained by the Taxi. This leaves me to decide that the damage caused must have been minimal thus no submissions by the Prosecution on its seriousness.
    
21. As to the accused himself, I turn to the Mitigating factors and the Aggravating factors.
    
22. The Mitigating factors are that:
    
    1. He pleaded guilty on arraignment.
    2. He is a first time offender.
    100. He expressed genuine remorse.
         
23. The Aggravating factors are:
    
    1. He failed to keep a proper lookout on the vehicle driving in front of him.
       
24. It is clear that the mitigating factors outweigh the aggravating factors three to one.
    

CONCLUSION

25. In light of the above and the midpoint being K1250, I will not go up but rather find that an appropriate penalty would be one below the midpoint. I therefore find that the penalty of K500 is sufficient in this case.
    

COURT ORDERS

26. I therefore make the following orders;
    
    1. The Offender is fined K500 after having pleaded guilty and convicted of the charge of Driving Without Due Care and Attention under section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.
       
    2. The Offender’s bail money of K500 is forfeited and converted into Court fine and pays for the total fine imposed by this Court.
       

Lawyer for the Informant Police Prosecutions
Lawyer for the Offender: In Person