Papua New Guinea Law Reports - 1981
[1981] PNGLR 482
N339(M)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THE PUBLIC PROSECUTOR
V
BARRY HOLLOWAY
Waigani
Kapi J
19-20 November 1981
23 November 1981
25 November 1981
CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy - Appeal from District Court - Powers of National Court on appeal - Discretion not unfettered - Substantial miscarriage of justice also required - District Courts Act 1953, ss. 225(3), 236(2).
CRIMINAL LAW - Appeal against sentence - Appeal against inadequacy - Driving under influence - Third offence - Total punitive effect - Punitive effect of non-custodial sentence - Maximum fine plus 4 years suspension of licence substituted for fine of K200 and 6 months suspension - Motor Traffic Act 1950, s. 9(2).
VEHICLES AND TRAFFIC - Offences - Driving under influence - Sentencing - Total punitive effect - Punitive effect of non-custodial sentence - Third offence - Maximum fine plus 4 years suspension of licence substituted for fine of K200 and 6 months suspension - Motor Traffic Act 1950, s. 9(2).
Section 9(2) of the Motor Traffic Act 1950 provides that a person convicted of the offence of driving under the influence is liable in the case of a second or subsequent offence to a penalty of not less than two hundred kina or imprisonment for not less than six months, and suspension of his driving licence for not less than twelve months.
On appeal against a penalty of K200 fine and six months suspension of licence on a third offender, a member of Parliament, the second offence being some three weeks before the one the subject of the appeal and occurring after attempts by both a friend and the police to deter him from driving:
Held:
(1)      On appeal to the National Court against inadequacy of sentence imposed by the District Court, the principles to be applied are the same principles that apply on a similar appeal to the Supreme Court from the National Court;
(2)      Accordingly, it must be clearly shown that there is an error in the exercise of judicial discretion by the District Court, and further, that that error amounts to a substantial miscarriage of justice under s. 236(2) of the District Courts Act 1953 for the appeal to be allowed;
Acting Public Prosecutor v. Konis Haha [1981] P.N.G.L.R. 205 applied;
(3)      In the circumstances there had been a substantial miscarriage of justice and the appeal should be allowed;
(4)      In sentencing for the offence of driving under the influence pursuant to s. 9(2) of the Motor Traffic Act, it is the total punitive effect of fine or imprisonment with the suspension of licence that must be looked to: the punitive effect of a non-custodial sentence in each case must be carefully examined;
(5)      In the circumstances, a proper and adequate penalty was the maximum fine of K300 plus suspension of licence for four years.
Appeal.
This was an appeal against adequacy of penalty imposed by the District Court on conviction for driving under the influence.
Counsel:
L. L. Gavara-Nanu, for the appellant.
P. D. Donigi, for the respondent.
Cur. adv. vult.
25 November 1981
KAPI J:  This is an appeal by the Public Prosecutor pursuant to s. 225(3) of the District Courts Act 1963. Under this provision leave is required before an appeal is lodged. Leave to lodge this appeal was granted by Pratt J. A notice of appeal was lodged and the matter came before me for hearing.
The respondent was convicted of driving a motor vehicle on a public street whilst under the influence of intoxicating liquor, contrary to s. 9(1)(a) of the Motor Traffic Act 1950. The District Court imposed a penalty of a K200 fine and suspended the respondent’s driving licence for a period of six months.
The appeal is against sentence only. The grounds are as follows:
(a)      That the learned District Court Magistrate erred in law in holding that he had a discretion in respect of the period of the disqualification from obtaining and holding a driver’s licence provided for in s. 9(2) of the Motor Traffic Act, 1967.
(b)      That the period of disqualification from holding or obtaining a driver’s licence pursuant to s. 9(2) of the Motor Traffic Act is a mandatory minimum period.
(c)      That the learned Magistrate was wrong in holding that the said Barry Holloway was not convicted of driving under the influence of intoxicating liquor on 17th day of August, 1981.
(d)      That the learned Magistrate was wrong in holding that the said Barry Holloway be treated as a first offender; and
(e)      That the penalty is and was in the circumstances manifestly inadequate.
An appeal against sentence from the District Court to the National Court is an appeal against the exercise of judicial discretion and should be determined by established principles. The principles to be applied here are the same principles that apply on an appeal from the National Court to the Supreme Court. See Acting Public Prosecutor v. Konis Haha[dcclxviii]1. However it is important to bear in mind that an error in the exercise of judicial discretion by the District Court must amount to a substantial miscarriage of justice in order for the appeal to be allowed. See s. 236(2) of the District Court Act.
It is convenient to deal with grounds (a), (b), (c) and (d) together as they are not contested. Counsel for the respondent conceded that the learned magistrate erred in law in suspending the respondent’s driving licence for a period of less than twelve months. A twelve-month period is the minimum for a second offender and the magistrate had no discretion in suspending the licence for a lesser period. It is not contested that this offence was the respondent’s third offence of driving under the influence. It follows that the six months’ suspension of the licence by the magistrate cannot stand. I will consider later what I consider to be the appropriate suspension of licence in the particular circumstances of this case.
I now consider the last ground of appeal, that the penalty of K200 was, and is, in the circumstances, manifestly inadequate.
The learned magistrate, in his very brief reasons for sentence stated:
“4.      Defendant treated as first offender—in one sense not a first offender.”
In my view the magistrate fell into error in stating this. It is clear from the evidence before him that the respondent was not a first offender. He had prior convictions, first on 19th May, 1969, and second on 17th August, 1981. In relation to the latter conviction, the respondent was convicted of the offence and was placed on a good behaviour bond for a period of six months. The learned magistrate should have approached his task of sentencing the respondent as a third offender and not as a first offender as he stated.
The Public Prosecutor further submitted that the learned magistrate fell into error in not giving adequate weight to the particular circumstances of this case.
It appears from the evidence that the respondent was visiting a Paul Symons at his home. The magistrate found that the respondent was under the influence of intoxicating liquor at this time. It appears that Mr. Holloway wanted to leave the house and Mr. Symons stopped him from driving his own vehicle. It is clear from the evidence that Mr. Symons was concerned not to let Mr. Holloway drive his own vehicle because he was under the influence of liquor and, secondly, that Mr. Symons was aware that Mr. Holloway had just been placed on a good behaviour bond a few weeks back. He went to the extent of preparing a bed for him, presumably with the intention of persuading him to sleep there for the night. Unfortunately Mr. Holloway did not accept his advice. Mr. Symons was quite determined to protect his friend and so he sought the assistance of the police and called them and they came over to his house. I believe he did this so that he could persuade Mr. Holloway not to drive his vehicle that night. It appears from the evidence that Mr. Symons’ attempt was successful to the extent that Mr. Holloway retired to his bedroom when the police came to the house. However Mr. Holloway appears to have retired to the bedroom only to cause the policemen to go away. When they went away he proceeded to drive his car, and consequently was involved in the accident.
I consider the manner in which the respondent behaved as very serious. Attempts were made by Mr. Symons and the police to prevent Mr. Holloway from driving his vehicle in that condition, but despite these attempts he deliberately drove the vehicle. Another feature of this case which concerns me is that only twenty-one days before the commission of this offence he had been convicted of a similar offence and was placed on a good behaviour bond. Furthermore, the behaviour of the respondent at the scene of the accident was intended to conceal the fact that he was the driver of the vehicle. In fact, it appears from the evidence that he denied that he was the driver of the vehicle until the key to the vehicle was discovered in his own pocket. It also appears from the defence of his case throughout the trial that he pleaded his innocence, that is to say, that he was not the driver of the vehicle.
In considering the prevalence of this offence and the particular circumstances of this particular case, there is a need for public deterrence as well as individual deterrence of the respondent.
In considering the prevalence these matters, I have also given regard to matters in mitigation which have been put up on behalf of the respondent. One of the matters put forward as a mitigating factor is that the respondent has been a parliamentarian since 1964 and was once the Speaker of the Parliament before Independence, and was a Minister of State in the Somare Government, and is an intending candidate for the coming elections next year. I have given weight to these matters only to the extent that the respondent has given a valuable contribution to the nationhood of Papua New Guinea. However, these facts would not deter me from imposing the appropriate penalty in the circumstances of this case for if I did that would be seen to be an unequal application of the law. I must apply the law equally to the rich and poor, to the ordinary and those in high places. On the other hand the people of this country expect their leaders, such as the respondent, to be good citizens and obey the laws of the nation. When leaders break the law they bring the law into disrepute.
Furthermore, the amendment to s. 9 of the Motor Traffic Act on penalties was not brought to the attention of the magistrate and he proceeded entirely on the wrong basis. I will refer to this amendment later.
Having regard to all these considerations and the barest minimum fine of K200, there is a substantial miscarriage of justice and I would allow the appeal.
In considering the appropriate penalty, it is significant to point out that s. 9 of the Motor Traffic Act has been amended. This is a significant amendment because the penalties provided are pretty tough. Unfortunately, the amendment was not brought to the attention of the learned magistrate by counsel appearing before him. I discovered it in the course of my own research. I brought this to the attention of counsel and I heard further argument on it.
Section 9 of the Motor Traffic Act was amended by Act No. 111 of 1973 which came into force on 3rd November, 1977. It amended s. 9(2) and in its place created a new provision. It is in the following terms:
“(2)    A person convicted of an offence against Subsection (1) of this section is liable to a penalty—
(a)      in the case of a first offence—of not less than Fifty dollars or imprisonment for not less than three months; and
(b)      in the case of a second or subsequent offence—of not less than Two hundred dollars or imprisonment for not less than six months; and
(c)      not exceeding Three hundred dollars or imprisonment not exceeding twelve months, or both
and the court before whom the person is convicted shall disqualify him from holding and obtaining any licence for such period as the court thinks fit, not being less—
(d)      in the case of a first offence—than six months; and
(e)      in the case of a second or subsequent offence—than twelve months.”
This amendment provided for minimum penalties. These tough penalties are a reflection of how seriously the legislature views this offence.
In having regard to the circumstances, this case calls for a tough sentence. There is no room for leniency. The question I am faced with is whether this purpose can be served by a custodial or non-custodial sentence. I cannot consider this in isolation from the question of suspension of licence. I have to take into account the total punitive effect of fine or imprisonment with the suspension of licence. If I consider that the maximum fine and a period of suspension of licence for twelve months or more is not adequate, then I would consider a custodial sentence.
In considering sentence for a serious case such as this there can be no assumption that this can only be met by a custodial sentence. The punitive effect of a non-custodial sentence in each case must be carefully examined. If there had been no penalty by way of suspension of licence I would have no difficulty in imposing a custodial sentence in the circumstances of this case. However I have discretion to increase the suspension of licence. I consider that a maximum fine of K300 plus suspension of licence for a period of four years is adequate in the circumstances. The total effect of such sentence would be quite considerable in terms of movement of the respondent during the course of his occupation and what it would cost him to employ a driver. Such a long period of suspension would ensure that he would not have the risk of committing the same offence during this period.
There is one other reason which has influenced me in not readily imposing the minimum six months imprisonment. It is apparent from my enquiries that it is likely that many magistrates have not been made aware of this amendment. If they have been made aware, it has only been recently. I am led to believe that most magistrates have not been applying the amendment. They appear to have been applying the repealed provisions. To apply this amendment to the respondent now, when it has not been applied for the last four years by most magistrates is, in my view, an unfair application of the law and the respondent would have a sense of injustice. It is regrettable that counsel and police prosecutors who appear before the magistrates have not pointed out this new amendment. I trust that all magistrates will, from now on, apply the new amendment.
I would impose a maximum fine of K300 and suspend the driving licence for a period of four years.
Appeal allowed: Orders accordingly.
Solicitor for the appellant: L. L. Gavara-Nanu, Public Prosecutor.
Solicitor for the respondent: P. D. Donigi.

[dcclxviii][1981] P.N.G.L.R. 205.