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Yaleni v Ijapo [2022] PGDC 39; DC8079 (21 March 2022)

DC8079

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 282 of 2021
BETWEEN

CHARLIE YALENI
Informant


AND

ALEX IJAPO
Defendant


Waigani: O Ore Magistrate


2022: 21st March
      


TRAFFIC OFFENCE – Reckless and Dangerous Driving – s 39(1) – Road Traffic Act 2014


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


PNG Cases Cited


Overseas Cases


Nil


References


Legislation


Criminal Law (Compensation) Act
Road Traffic Act 2014
Road Traffic Rules – Road User Rules 2017


Counsel

Wamuru J, for the Informant

The Defendant in Person

RULING ON SENTENCE

21st March 2021


  1. O Ore, Magistrate: The Offender Alex Ijapo was charged with one count of Reckless and Dangerous Driving under section 39 (1) of the Road Traffic Act to which he plead guilty.
  2. This matter now returns for my ruling on sentence after submissions were made by both parties.

FACTS


  1. Below are the summary of facts to which the Offender agreed to and confirmed his plea of guilty.
  2. On Friday 17th December 2021 at around 11:55pm, the Offender now before the Court was driving a Toyota Land Cruiser 10-Seater white in colour with the registration number HAK 955 along Bomana Road when he was involved in an accident.
  3. At that time, he was heading towards the main Bomana Prison camp on drop off runs. On his way there, he lost control of the vehicle and swerved into a residence near Bomana Maris Store.
  4. The vehicle in which he was driving, broke a small tree, smashed the perimeter fence of the residence, flew airborne over a two-meter stone wall, smashed the left edge of the Complainant’s house and finally hit the right edge of the Complainant’s vehicle a Toyota Land Cruiser 10-Seater that was parked in the yard.
  5. He was formally arrested and charged for Reckless Driving to which he plead guilty.

ANTECEDENT REPORT


  1. As per the antecedent report, the Offender is an adult male and is a serving member of the Royal Papua New Guinea Constabulary and earns K900 per fortnight. He is 36 years old and originates from Kafuku Village, Goroka District, Eastern Highlands Province. He is married and has 3 children and currently resides at 9-mile Morobe Block. He has no prior convictions.

ALLOCUTUS


  1. On Allocutus, the Offender said that he is a first time offender and hasn’t been involved in a single accident. After 16 years of driving, this is his first time to be involved in an accident. He said that accidents happen at any time and it was unfortunate that it happened to him. He asked the Court for leniency. He said that his wife is not work and he has 3 children to support.
  2. He also said that he is willing to settle the damages caused.

ISSUE


  1. What is the appropriate penalty the Court should impose?

RELEVANT LAW


  1. Reckless and Dangerous Driving attracts a fine not exceeding K10,000 or imprisonment for a term no exceeding 6 months or both. This is provided for under Section 39 (1) of the Road Traffic Act 2014 which states:

“39. RECKLESS AND DANGEROUS DRIVING.

(1) A person who drives a motor vehicle in a reckless or dangerous manner on a public street

is guilty of ah offence.

Penalty: A fine not exceeding Kl0,000.00 or imprisonment for a term not

exceeding 6 months, or both


SENTENCING


  1. Sentencing has always been a discretionary matter for the Court. This notion has been widely accepted at all levels of Court’s in Papua New Guinea (i.e., Supreme, National and District Courts). It is therefore a settled notion in law.
  2. When presiding over a matter involving sentencing, it is incumbent on the Court to be objective in its approach. Even though charged under the same law, circumstances surrounding cases differ from each other[1]. Thus, the saying that no two cases are the same. To assist the Court, previous cases can also be considered only as a guide to imposing an appropriate sentence or fine.
  3. In Alex Ijapo’s case, the accident occurred late at night around 11:55pm. Senior Sergeant John Wamuru for the prosecution submitted that the Offender was seen by witnesses drunk and driving at a high speed. I refused this assertion because the summary of facts to which the Offender pleaded guilty to was void of this assertion.
  4. The settled facts I consider and accept are that the Offender at that time was doing drop off runs. He was on his way to drop of another officer when he lost control of the vehicle and caused the accident. From the damage caused by the accident, it is clear that he was traveling at a very high speed when he lost control. There is no evidence or report before me showing any mechanical fault of the vehicle. It is not known what had caused the accident.
  5. SS John Wamuru in his submission said that this type of traffic offence is on the rise. I agree with this submission as it is quite evident that traffic offences not only in NCD but throughout the country are on the rise. Road users today (drivers of vehicles) are becoming more negligent and less considerate of each other and also pedestrians as well. Most accidents in this country seem to go unpunished. Driving over the normal speed limit of 60km/ph within the city is quite common these days.
  6. SS Wamuru further submitted that the penalty for this offence under the Road Traffic Act is high and shows the State’s intention to minimise roads accidents which are currently on the rise. He further submitted that an appropriate sentence should be imposed to have an effect of deterrence that will educate other road users to drive carefully.
  7. Apart from making submissions on sentence, SS Wamuru also submitted that compensation should be part of the sentence. He submitted that the Court is empowered under Section 2 (2) of the Criminal Law (Compensation) Act 1992 to make an order for compensation.
  8. I agree with his submission and to that I add that this power is discretionary depending on the circumstances of each case. See case of State v Ambai [2018] PGNC 74; N7154 (16 March 2018). Under Section 3 (2) of this Act, the Court is not bound to apply the strict rules of evidence and may act on such information as is available to it when considering Furthermore under Section 5, the maximum compensation allowable under the Act is K5000.00.
  9. From the information available to me, I find this case to be a serious case. The Complainant through the Prosecution has filed a statement attaching a valuation report of his property and also attached pictures of the damage done to his property. The photographs show the extent of damage to his property and one of his vehicles which are quiet substantial.

Starting Point


  1. The starting point for any penalty or punishment most if not often is usually the mid-point. From my research I have not come acrros any reported judgements on Reckless and Dangerous driving. Thus, I am inclined to adopt the normal practice which is that midpoint will be the starting point in a case where the accused pleads guilty.
  2. The midpoint in this instance is K5000 and 3 months imprisonment.

Mitigating and Aggravating factors


  1. The mitigating and aggravating factor are essential when considering sentencing. In my respectful view, they form part of the facts surrounding the case. They are weighed against each other and ultimately assist in determining an appropriate sentence.
  2. The Mitigating factors are that:
    1. He pleaded guilty on arraignment.
    2. He is a first time offender.
    1. He expressed genuine remorse and has offered to pay for the damages.
  3. The Aggravating factors are:
    1. He drove the vehicle in a dangerous and reckless manner causing the accident resulting in damages the property/properties of another person.

Appropriate Sentence


  1. In the Supreme Court case of Goli Golu v The State [1979] PNGLR 653, the maximum penalty for any given offence should be reserved for the worst type of cases. As to what constitutes a worst type of case is largely dependent on the facts and circumstances leading up to when the crime was committed and also what transpired after the committing of the crime. The Court held in Goli Golu (supra) that:

“In sentencing, the basic principle to be observed is that the punishment to be awarded should be strictly proportionate the gravity of the offence.”


  1. In this case, the mitigating factors outweigh the aggravating factors 3 to 1. However, it is undeniable that as a result of the accident, the Complainant has sustained substantial damages to his properties. The value of the damage done to the Complainant’s vehicle stands at K23,196.80 whilst the damage to his house and fence is not quantified. From where the vehicle veered off the road and from its path of destruction to the Complainant’s house clearly indicates that the vehicle was driven at a high speed. This case although serious is not the worst type and therefore in my respectful view, does not warrant the maximum penalty.
  2. The Court is now faced with the question on what should be the appropriate penalty. Should the Offender be fined, sentenced to imprisonment or both? In saying this, I take into consideration the mitigation factors and also the circumstances surrounding the case. The only aggravating factor was that he was driving at a high speed and lost control of the vehicle casing it to veer of the road and cause damage to the Complainant’s properties. As to what had caused him to lose control of the vehicle is not known because parties have not assisted the Court with this. It is not known whether it is a mechanical fault, incompetence or error of judgement that caused him to lose control.
  3. Given the above, I find that the appropriate penalty to impose on the Defendant would be a fine. Furthermore, I would add that the circumstances of the case also require an order for criminal compensation. Unfortunately, the law on criminal compensation is very clear in that the maximum payable as compensation is K5000.00.
  4. If the Complainant is to claim for the value for the total damages done to his properties, he is at liberty to file appropriate civil proceedings at the National Court against the Offender and his employer.
  5. I find that the appropriate penalty to impose is a fine of K5000 and also compensation to the Complainant in this sum of K5000. In default, the Defendant shall be committed to serve some time in prison.

CONCLUSION


  1. After my considerations above, the offender is fined K5000 for the offence of Reckless and Dangerous Driving. Pursuant to Section 5 of the Criminal Law (Compensation) Act, the Offender is to pay a compensation of K5000 to the Complainant. Both the fine and compensation are to be made within one month from the date of these orders.

COURT ORDERS


  1. I therefore make the following orders;
    1. The Offender is fined K5000 after having pleaded guilty and convicted of the charge of Reckless and Dangerous Driving under section 39 (1) of the Road Traffic Act 2014.
    2. The Offender’s bail money of K500 is forfeited and converted into Court fine and pays for part of the fine imposed by this Court.
    1. The remaining balance of the Court fine being K4500 is to be paid within 30 days from the date of this Order.
    1. Pursuant to Section 5 of the Criminal Law (Compensation) Act, the Offender is to pay compensation in the sum of K5000 to the Complainant one Rocky Aino within 30 days from the date of this order to be witnessed by a Senior CBC Officer.
    2. In Default of the Orders of the Court, a warrant of commitment shall be issued to commit the Offender to 6 months imprisonment in hard labour at the Bomana CS Prison.
    3. The Offender’s Papua New Guinea Driver’s License is forthwith suspended for 6 months pursuant to Section 44 (a) of the Road Traffic Act and is to handed in to the Clerk of Court at the Committal Court Waigani immediately.
    4. This matter shall return for review of compliance of these orders on Monday 25th April 2022 at 9:30am.

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

[1] Vagi Gau v Ken Eava [1976] PNGLR 485, Bate v Nea [2021] PGDC 165; DC7023 (23 November 2021)

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