Kilu v Moroby [1980] PGNC 21; N246 (17 July 1980)

Unreported National Court Decisions

N246

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NOS. 124 AND 125 OF 1980
ENGA KILU
APPELLANT
V
JOHN MOROBY
RESPONDENT

Mount Hagen

Narokobi AJ
17 July 1980

NAROKOBI AJ: These two are appeals by ahe same appellant, ENGA KILU against sentence in respect of charges under s.7(1) of the Motor Traffic Act and s.7(1) of the SumOffences Act. The facts and circumstances of the case appear in my judgment and my reasons sons thereof.

The appellant is a Melanesian citizen employed as a manager by a citizen company in Baiyer River, Western Highlands Province. The appeals are not against two convictions secured against him in relation to two distinct charges said to arise out of the same incident. The appeals are against sentences.

In relation to the conviction under s.7(1) of the Summary Offences Act, the appellant was sentenced to imprisonment with hard labour for a period of six (6) weeks. In relation to the conviction under s.7(1) of the Motor Traffic Act, the appellant was sentenced to imprisonment with hard labour for a period of two months, and he was further disqualified from driving for three months, from 9th May 1980.

The sentence pursuant to Summary Offences Act was to be cumulative upon the sentence imposed pursuant to the Motor Traffic Act.

Now, because the two appeals arose out of the same incident, involving the use of the motor vehicle and by consent, I propose to deal with the two appeals together in this judgment.

S.7(1):

“A person who drives a motor vehicle upon a public street negligently, furiously, or recklessly, or at a speed or in a manner which is dangerous to the public shall be guilty of an offence” (Act No. 28 of 1950).

By an amendment to the principal Act, s.71a was added in 1967 in the following words:

“A person convicted of an offence under subsection (1) of this section is liable to a penalty not exceeding two hundred kina or imprisonment not exceeding six months, or both, and the Court before which the person is convicted shall disqualify him from holding and obtaining any licence for such period as the Court thinks fit, not being less:

(a) & in the case of a first ofst offence under this section, than three months, and

(b) &#in the case of a second oond or subsequent oe undis se - thelve months.”

In

In the the SummaSummary Ofry Offences Act, s.7 is in the following terms; and relates to provoking ach ofpeace

“A220;A pers person whon who:

(b) ; uses threatenang, abusiveusive or insulting words;

(c) ҈ tkesatereatening, ing, abusive or insulting gestures with intent to provoke a breach of the peace or wy a b of tace is likely to take place is guilty of an offence”:

penalty a fine not exceeexceeding ding K100.K100.00 or imprisonment for a term not exceeding 3 months.

These are two separate and distinct offences, under two distinct Acts of Parliament. I have some doubt about the words used to constitute “threatening, abusive or insulting conduct” from the court depositions. It does not appear from the depositions that the learned magistrate considered the charge specifically, except at the stage of making the order.

However, with regard to the appeal against sentence under s.7(a) of Summary Offences Act, the appeal is against sentence, not conviction. I am not being invited by the appellant to consider the conviction. Accordingly, I hold that insofar as facts exist to justify the conviction, I must find that there are facts on which the learned magistrate proceeded properly to sentence, following the conviction.

On the face of the evidence on the court depositions, it would seem that the learned magistrate could have found the appellant not guilty of provoking a breach of peace. In fact the evidence of prosecutions principal witness, RAINA MENIEKE makes no mention at all of the appellant “using any threatening or abusive or insulting words” so as to provoke a breach of peace under s.7(b). The police constable John Moroby’s evidence does not make any reference to the use of insulting words either.

The only evidence of use of words comes from the appellant when he said: “That pig is mine, that pig is mine, we have not yet straightened it, why is he taking it away?”, and later on he said: “I went and told him that the pig is still under dispute”, and again later he said: “I informed him that I saw the pig already and we are going to court tomorrow”. This evidence is corroborated by witness WAI TRANGI.

In my view, the learned magistrate erred in giving consideration to “dangerous driving” as a factor in imposing his sentence pursuant to s.7(b) of the Summary Offences Act.

The appellant was charged under s.7(b) which is restricted to the use of words which are “threatening”, “abusive”, or “insulting”. Had the appellant been charged under s.7(a), which involves the use of threatening, offensive, or insulting behaviour, it might have been relevant to have regard to the “dangerous driving” factor in sentencing.

It will be seen that in his order, the learned magistrate stated that on the second charge under s.7(b) of the Summary Offences Act, it is taken into account when making decision on the first charge, because it arose out of the act of “dangerous driving”, and the defendant is sentenced to 6 weeks imprisonment on that charge with hard labour at Baisu. Both sentences be served concurrently at Baisu.

It is true, that the two offences arose out of the same incident. But, it must be pointed out that the offence under s.7(b) relates to the use of words and with respect to the learned magistrate, I am clearly of the view that he gave weight to the wrong factor in determining his sentence, namely the dangerous use of a motor vehicle.

It seems to me that this is a case in which the learned magistrate has proceeded under a misapprehension of the facts.

The law as I understand it, says that no all embracing rule as to when sentences for two or more convictions should be made concurrent or cumulative (see Raine J. in Wari Mugining v. The QueenN246.html#_edn243" title="">[ccxliii]¹). However, in Tremellan v. The QueenN246.html#_edn244" title="">[ccxliv]² Minogue C.J. was clearly e the view that “generally speaking sentences should be made concurrent where a congeries of offences is committed in theecution of a single purpose or the offences arise out of the same or closely related facts&acts” at pp 119 and 120.

In this case, the offences are quite distinct even though they arise out of the same or single purpose. While it is understandable that the learned magistrate dealt with them together, in my view he erred in relating the facts of the offence of dangerous driving to the offence of provoking a breach of peace by words under s.7(b) of the Summary Offences Act.

Had the charge pursuant to the Summary Offences Act been laid under s.7(a), behaviour would have been an essential factor. But in that section, a charge under s.7(b) is to my mind an alternative to s.7(a). The lack of words relied upon to found an offence under s.7(b) is something I have already referred to. It is a wrong principle in my view to proceed to relate “threatening, offensive or insulting behaviour” in “dangerous driving” to establish facts for an offence requiring “words” to constitute that offence.

Had the appeal been an appeal against conviction in Appeal No. 124 of 1980, I would, in my view have properly quashed the conviction because the evidence does not support a conviction under s.7(b). I am called on, merely to quash the sentence.

In my view, as evidence stands the accused could have been acquitted. Besides, the accumulation of sentences proceeded under a clear misapprehension of the facts with the result that in the words of s.43(3) of the Local Courts Act, 1963, “there has been a substantial miscarriage of justice”.

Proceeding as I must, under s.43(3), I allow the appeal of the appellant’s Appeal No. 124. The sentence of the learned trial magistrate is therefore quashed and in lieu thereof, the appellant is ordered to pay a fine of K90.00 to the Government of Papua New Guinea.

I now turn to Appeal No. 125 of the appellant. In that appeal, the challenge is the same, namely that the sentence of two months imprisonment with hard labour and a deprivation of the driving licence for three months was “manifestly excessive”. Counsel for the appellant says that because the appellant held a responsible position, and was a family man with an impeccable character, he should not have been imprisoned. Instead counsel argues, the appellant should have been fined only.

Counsel for the State properly opposes this view arguing that the nature of the charge was serious, namely that the accused drove a motor vehicle dangerously, apparently in an attempt to run down the complainant, RAINA. State counsel submits that the two offences arose out of the same incident and in the circumstances, the sentence is adequate.

I must state at the outset now, as I indicated orally, that in my view it is outrageous that responsible and educated citizens should come before this court and expect to redeem their guilt with money. In this case therefore, I cannot give any weight in favour of the appellant, in his claim that as a responsible executive of a citizen company, he should only be fined.

On the contrary, and in an appropriate case, such a factor should be taken as an aggravating one. Too may educated citizens in responsible positions are losing the trust people place in them by succumbing to criminal activities they should be able to control if they exercised restraint in the conduct of their affairs, private and public.

In my view even the first offender of the category to which the appellant may be described, may be properly imprisoned with hard labour. Educated citizens cannot expect to be treated differently to the uneducated. To those that receive more in our society, more is expected of them.

However, I must not allow such views to unduly influence me in determining whether having regard to all the circumstances of the case, the sentence was manifestly excessive.

The convicting of dangerous driving is pursuant to s.7(1) of the Motor Traffic Act. The appellant’s sentence must therefore be considered under that Act. The appellant does not appeal against the conviction. He must be taken to admit to the facts the learned magistrate relied upon to return a verdict of guilty.

The facts on the worst possible interpretation would suggest that the appellant actually did more than driving dangerously. His driving did cause witness RAINA to be “scared and lost hope”. It may even be suggested that he the appellant tried to run the complainant down and it was all over a lost pig.

However, on a favourable interpretation of the facts, the appellant was reacting to a situation which he said related to a disputed pig. He heard the taking away of the pig as “if it was being stolen”. The pig was being snatched off the property belonging to the appellant’s line. Even though the taking away of the pig was consistent with a village court order awarding the pig to RAINA, it is reasonable to assume that at the time the pig was being taken away, the appellant would have thought it was being stolen.

The facts as given on oath by the complainant RAINA at the lower court, are quite interesting. His claim is that the pig was originally his. It got lost for two months. Someone from Makin clan found a pig and sent word for the owner to go along and claim it. RAINA went along and saw the pig in MOKA’S garden. Now, because the pig had gone into MOKA’S garden, RAINA decided to give that pig as a gift to MOKA.

Now, along came another person who identified the same pig as his own. So at that stage, it is reasonable to say that either RAINA lied to MOKA or that LOPAIUA, that other person had lied. LOPAIUA claimed his ownership to that pig from a customary transaction known as moka. LOPAIUA said it was MOKA who gave him that pig.

MOKA was then asked to go along and identify the pig. He said that was the wrong pig. According to the complainant, a village court magistrate himself, there then followed a village court hearing and the pig was given to MOKA. The names of the village court magistrates who gave the decision do not appear on the depositions. MOKA then gave that pig to KAIUA. The reason, it seemed, was that the complainant’s clan was preparing for a moka.

Now, at this stage, it seems that the complainant had gone back on his word and reclaimed the same pig he had given to MOKA, because no sooner had MOKA given the pig to KAIUA than the complainant turns up and asks for that same pig. The appellant’s version of the facts would throw doubt on there being a village court hearing awarding the pig to MOKA.

When the main actor in this drama arrived to get his pig, KAIUA was not there. The pig was then taken off from KAIUA’S wife and off the actor went.

The appellant’s version of the facts is that he was with the pig owner, KAIUA, in his (Kaiua’s) store when they heard “as if a pig was being stolen”. According to his version of the story, KAIUA had said:

“I tie the pig in my house, how comes, he went there, it is dark and he might change the pig.”

The appellant then went to see the pig. Because it was midnight, he took the car and went.

The complainant, it would seem is not entirely faultless, morally for a start he took back the pig he had given away. Secondly, he was an anxious moka maker and may well have taken the pig without regard to its new owner, on the appellant’s version of the facts. Finally, the evidence against him that he took out an axe and threatened the appellant and abused him and shamed him, by saying he could not make moka, were not refuted by the complainant.

Now, these being the state of facts upon which the appellant was convicted, I ask myself whether the sentence imposed by the magistrate was a little too severe? Under the Motor Traffic Act, the loss of a driving licence for three months flows automatically upon a first conviction. Consequently, there is nothing I can do about that part of the sentence. In any case, it has run its course. On the fact of it, the two months imprisonment does not appear to me to be excessive or manifestly unjust. After all, it is in fact one-third of the maximum sentence of six months that could have been imposed. But that statutory maximum is also stated as an alternative to a fine of K200.00 or it can be combined with a fine.

The principles upon which an appellate court may disturb the sentence at the instance of a convicted person, imposed by the trial magistrate have been well stated in various pre Independence cases. An appeal will be allowed only where the sentence was seen to be manifestly excessive (see Paulus Mandatititip and Anor. v. The StateN246.html#_edn245" title="">[ccxlv]³).

The appellate court does not possess an unlimited discretion to substitute its own sense of what might be a just sentence for that imposed by the magistrate (see Babi Pim v. W. AkanoN246.html#_edn246" title="">[ccxlvi]⁴).

In the case cited above, Raine J. as he then was, was invited by counsel Mr K. R. Roddenby to interpret s.43(5) of Local Courts Act to the effect that that section gives the court an unlimited judicial discretion. His Honour stated then “that to adopt such a course conflicts sharply with s.43(3) which says that an appeal shall be allowed only if it appears to the Supreme Court that there has been a substantial miscarriage of justice”.

As I have indicated elsewhere, I am of the opinion that the National Court is a court of record, and under the Constitution it is a court of unlimited jurisdiction. It has an inherent power to review any exercise of judicial authority (s.155(3)). It also has an inherent power to make in such circumstances as seem to it proper “such other orders as are necessary to do justice in the circumstances of a particular case” (s.155(4)).

Now, as I review the facts, I am clearly of the opinion that the appellant’s actions were spontaneous. His dangerous driving was not a planned driving to cause damage. He heard of the pig being taken from his area. It was a pig under dispute. In my view, he properly drove on to lay his claim to that pig, until a court determined its ownership of course he drove dangerously.

I am also of the view that the main complainant was not entirely without moral fault. The National Court is not a court of law only, it is also a court of conscience, and in my view, if the Local Courts Act s.43(3) is properly restrictive on the court’s discretion, the Constitution gives it some scope to consider the facts as a whole and decide whether the sentence was, in the circumstances, a little excessive.

I take the following into account in reaching my decision: the appellant has been in custody some five days. He has no prior convictions. His long incarceration may well damage the prospects of the infant citizen company, thus producing greater social evil. The crime was a spontaneous one. The two months imprisonment on its own might not be excessive, when taken with the loss of licence for three months, but it is a loss for a man who will depend on a motor vehicle for the effective performance of his duties. It is a relevant factor in his favour. The imposition of two months imprisonment together with the automatic deprivation of driving licence for the maximum statutory period was in my view, a little severe.

I consider that the learned magistrate placed excessive weight on deterrence aspect of punishment to the cost of the need to individualise punishment so as to enable the citizen to realize from his misdeeds that the course will be swift to deal with law-breakers. In my view, no weight or insufficient weight was given to the factors which incited the whole incident and the factors which tell in favour of the appellant.

The loss of driving licence has run its course, so I make no reference to it.

In all the circumstances, I make the following order: more severe than a sentence I would have awarded, on these facts.

The appeal against sentence in Appeal No. 125 is allowed. The appellant should instead be sentenced to one month imprisonment with hard labour, but that this sentence be suspended on condition that the appellant pays damages in the sum of K200.00 to the complainant within one month, and should he break that condition, in that time, he is to appear before any magistrate to receive his sentence. I consider that the award of damages will meet the sense of justice of the complainant RAINA MENIEKE in this case.

I further recommend that the appellant make every effort to restore harmony and amicable relationships between himself and his line on the one hand and the complainant and his line on the other hand.

Solicitor for the Appellant: Acting Public Solicitor, D.J. McDermott

Counsel: A. Yer

Solicitor for the Respondent: Acting Public Prosecutor, L. Gavara-Nanu

Counsel: I.I. Kariko

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