Police v Mondave [2022] PGDC 20; DC8031 (16 February 2022)

DC8031

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

Case. No. 06 of 2022

C.B. No.68 -72 of 2022
BETWEEN

THE POLICE
Informant

AND

LIHIE GLEN MONDAVE
Defendant

GOROKA: BARBRA GORE

2022: 16^th of February

TRAFFIC OFFENCE – Careless and Negligent Driving – s.40(2)(a) – Road Traffic Act 2014, Driving without license s.7(a), Driving Without Due Care and Attention – s 28(2) (a),driving unregistered vehicle s.22(1)(a) & vehicle without roadworthy certificate s.65(2) all under Road Traffic Regulations-Road User Rules 2017& s.59 (1) uninsured motor vehicle , Motor Vehicle Third Party Insurance Act.

TRAFFIC OFFENCE- Plead to all 6 charges, Discretion of Court to impose appropriate penalty – Consideration of Mitigating and Aggravating Factors, principles of sentencing discussed and considered.

Sentence; Careless and Negligent Driving, offender sentenced to 1 year wholly suspended on condition to pay compensation of K3000. Driving without Due Care & attention, fine of K500, uninsured motor vehicle, fine of K1000, K50 fine for not road worthy certificate, driving without licences, fine of K500.Unrigistered vehicle K500, Total of K 2550 to be paid within one month, partly suspended with conditions.

PNG Cases Cited

Seal (PNG) Pty Ltd v Superintendent of Motor Traffic [1997] PGNC 141; N1638 (24 October 1997)
Police v Pepna Kepa [2020] PGDC 24; DC4080
Police v Paua [2021] PGDC 102; DC6055
Vagi Gau v Ken Kone Eava [1976] PNGLR 485.
Police v Alex Buna DC4079
Police v.Wilson Koya DC6025
Police v. Leonard Pangepea WTC NO.69/2021

Overseas Cases

Nil

References

Legislation
Road Traffic Act 2017
Road (Offences & Penalties Regulation) Act 2017
Road Traffic Rules- Road User Rules 2017
Criminal Justice Compensation Act

Counsel

Sgt Kepa, for the Informant

The Offender in Person

RULING ON SENTENCE

16^th February 2022

B GORE: The Offender, Lihie Glen Mondave pleaded guilty all 6 charges on 9^th February 2022.

1. On the same date submissions on sentence were made.
2. Court ordered for CBC report to be provided to court no later than 14^th February 2022, which was complied with.
3. I had the benefit of going through it and appreciate views of both parties and had ascertained the extend of jungle justice done to the offender and his family.
4. This is my ruling on sentence.
   

FACTS:

5. He pleaded guilty to the following facts;
   
6. On 16^th October 2021 at about 7 and 8pm at Zogu Village, Goroka, the offender was driving down from Kotuni on an open back land cruiser reg. IAC 551 with some passengers.
   
7. Along the road there was another vehicle, open back vehicle belonging to Mimanaldo LLG vehicle stopping on the road. The complainant attempting to stop but the newly constructed gravel did not allow that to happen, he steered the vehicle to the side and bumped the side of the road,
   
8. In the process the vehicle hit the son of the driver of that other vehicle who was on the road and he fell unconscious.
   
9. He was rushed to the general hospital for medical treatment. He was admitted for some time and underwent three brain surgeries.
   
10. The defendant was arrested later with the above 6 charges and was released on K200 police bail.
    

ANTECEDENT REPORT

11. The Offender is 18 years old. He is from Samiriufa Village in Goroka. He is single and will be doing Gr.11 this year at Syntax Secondary School. He lives with parents outside of five mile (home is now being destroyed).He has no prior convictions.
    

ALLOCOTUS:

12. During Allocotus, the Offender said “Me tok sorry lo me bin mekim disla rong”.I will not reoffend When translated to English, it means, “I apologise to this Court for doing what I did”. I will not do that again. We are displaced now due to this incident.

ISSUES:

13. The issue the Court is faced with is what penalty it should impose on the Offender.
    

RELEVANT LAW

14. Section 40 (1) of the Road Traffic Act 2014 provides for the Offence and Penalty for Reckless and Negligent Driving. It states,
    

“(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.”

2) a person who drives in a carless and negligent manner

1. causing injury to another person or
2. fatal injury to another person is guilty of an offence
   

Penalty a fine not exceeding K10 000 or imprisonment for a term not exceeding three years or both.

15. The penalty for the offence of Driving Without Being Licensed under Section 7 (a) of the Road Traffic Regulation – Licensing of Drivers 2017 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.
    
16. Driving without Due Care and Attention – s. 28(2) (a) of Road Traffic Regulation carries a maximum penalty of K2500, maximum penalty for summary conviction & K500 as infringement fee.
    
17. Driving without license under s.7(a)^[1] carries the same penalty as above.
    
18. Un insured vehicle under 59(1) Motor Vehicle (Third Party Insurance) Act says as follows:
    

(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."

19. Section 25B (9) Motor Traffic Regulation provides for Certificate of roadworthiness ,It states,
    

(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."

SENTENCING

20. The Prosecution through Sgt Kepa submitted for court to condisder the following,Public Interest, the need for education, the need for prevention and the need for deterrence. He also further submitted that these offences were becoming prevalent in society. He left it to the Court to decide on an appropriate penalty taking into consideration the mitigating and aggravating factors. He also submitted that jungle justice was administered and that the court must take into account. He leaves sentencing to the discretion of the court.
    
21. I uphold the submission by Prosecutor Sergeant Kepa that sentencing remains at the discretion of the Court. Such discretion should be exercised objectively and in consideration of the background of each case. See the case of Vagi Gau v Ken Kone Eava [1976] PNGLR 485.
    
22. In reply, the Offender asked the Court to impose a suspended sentence because he was a first-time offender and a grade 11 student. He also mentioned that massive damage was done to the vehicle and his family home and they are now displaced for about 4 months.
    

What is the proper Starting Point?

23. There are not many reported cases on Careless and Negligent Driving. In fact, on my research, I managed to find one case that dealt with the punishment for such an offence. In Police v Kepa^[2], the Court imposed a fine of K3000 taking into consideration the mitigating and aggravating factors. In that case, both mitigating and aggravating factors were levelled against each other.
    
24. For driving without being licensed, there are also not many cases reported as well. Again, I found only one case that dealt with the issue of sentencing for the offence. In Police v Paua^[3], His Worship Magistrate Paul Puri Nii considered the mitigating and aggravating factors and imposed a fine of K500 since the mitigating factors outweighed the aggravating factors.
    
25. For driving without due care and attention under s.28(2)(a) of Road Traffic Rules, His Worship O, Ore imposed a fine of K500 in the case of Police v. Enock Kops .DC 8004 wholly suspended with conditions.
    
26. For the offence of driving an uninsured vehicle, a fine of K400 was imposed in the case of State v. Nathan Peters, DC 567.
    
27. For driving unregistered vehicle, His Worship Paul P Nii in the case of Police v. Leonard Pangepea^[4],ordered for a fine of K500.
    
28. For vehicle without roadworthy certificate, I am unable to find a similar case on Paclii.
    

What is the appropriate sentence?

29. To find the appropriate sentence, I will consider the mitigating factors and the aggravating factors.
    
30. The Mitigating factors are that:
    
    1. He pleaded guilty on arraignment thus not wasting the Court’s time.
    2. He is a first-time offender.
    100. He expressed genuine remorse.
    4. Jungle justice was applied to the offender and his family. Massive damage done to vehicle and home, they are homeless until now
    5. His family members are under continuous threat from the complainant’s family.
       
31. The Aggravating factors are:
    
    1. He was also unlicensed at the time of committing the offence
    2. And knowingly drove a defective vehicle posing risk to passengers and road users.
    100. Serious of the injuries caused to the victim
    4. Third party insurance not possible due to unregistered and insured vehicle
       
32. It is clear that the mitigating factors outweigh the aggravating factors. I point out that the Offender on his first appearance was truthful and remorseful and pleaded guilty straight after arraignment saving the Court time.
    
33. I agree with submissions by the Prosecution that these types of offences are becoming prevalent in society and a suitable punishment should be imposed to deter the offender and other persons from committing such offences. Prosecution did not ask for custodial sentence however I have considered this not applicable in this case as the offender is of youthful age and he is a student.
    
34. I also note that the prosecutions did not object to the Offender’s submission for the sentence to be suspended. They have left it to the Court to decide which I find is inappropriate as I would have preferred submissions on a desired penalty by them.
    
35. CBC reports captured views of the complainant and the offenders’ family, who are also related as cousin, both are of the view that some form of compensation would restore peace considering the vehicle is not registered for insurance purpose. I have no powers to go down that part, I leave that to parties however one thing that is obvious is that jungle justice was administered rather complainant had resort to justice employing their own means before coming to court for assistance.
    
36. The CBC report also contains information that goes to show that there was a poor investigation in this case and leaves a lot to be desired. A lot of vital information that could have assisted the court was not put before this court. I have taken that into account as well.
    
37. Nevertheless, I now use my discretion to make my ruling on sentence.
    
38. I find that the appropriate sentence for each of the offences would be as follows taking into account the totality principle;
    
    1. Careless and Negligent Driving – offender is Sentenced to one year imprisonment wholly suspended on the condition to pay K3000 compensation to the victim within 2 weeks from today. I exercise this power under s.5 of the District Court Act and Criminal Compensation Act also considered.
    2. Driving without due care and attention –K500 fine
    100. Driving without being licensed – K500 fine
    4. Driving un insured vehicle K1000 fine
    5. Unregistered vehicle K500 fine
    6. Without roadworthy certificate K50
       

Should all or part of the sentence be suspended?

39. A total of K2550 Court fine to be paid within one month however I exercise my discretion considering the massive jungle justice applied to the offender and his family, the continuous threats received to date, the recent one being the incident on Monday 14^th of February 2022 at 9.30am when the parties where at the court house premises for this case and the fact that they are now longer at their home, affording these penalty could be a problem to them, as such I suspended most of the penalty with the following conditions.
    
40. COURT ORDER
    
    1. Offender to pay K1000 as court fine, that will be converted from his bail money
    2. Pursuant to s. 199A District Courts Act I place you on thirty (30) days community service to be supervised by the CBC under what arrangements they see fit.
    3. You will not obtain driving licence until you reach 20 years of age
    4. You shall not drive any vehicle for three years commencing today
    5. You shall pay the K3000 in cash or kind to the complainant within one month and apologised to him to be witnessed by Ms.Jacobeth Kalagune and Police Officers.
    6. Both parties to find sufficient sureties to keep peace and of Good behaviour towards each other after this order.
    7. Ward Councillor of Ward 7, Goroka Rural LLG Gideon Pepena and all village leaders to ensure that peace and normalcy restored between the parties after this order.
       

.

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

---

^[1] Road Traffic Regulation 2017

^[2] DC4080
^[3] [2021] PGDC 102; DC6055
^[4] WTC No.69/2021