Public Prosecutor v Salaiau [1994] PGNC 72; N1203 (19 January 1994)

N1203

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP. 54/93

PUBLIC PROSECUTOR

V

POSOPON SALAIAU

Lorengau: Doherty, J
1 September 1993 & 19 January1994

Sentence - periods in remand where bail allowed - sentence in dangerous driving cases.

Respondent was convicted after a trial of dangerous driving causing death and given a suspended sentence. He had been allowed bail pending trial but for his own safety elected to remain in custody. The appellant argued that voluntary incarceration should not be deducted from sentence.

HELD:-

1. The Criminal Justice (Sentence) Act 1986 vested an unfettered discretion in the Court to deduct any period in remand.
   
2. The period in remand was a deprivation of liberty and although bail was allowed the Court still could exercise its discretion in favour of the Respondent.
   

S Madana for the State
M Kua for the Appellant

DECISION

DOHERTY J.: This was an appeal against sentence.

The appeal was heard in September 1993 and I reserved on sentence, basically on a question of law and the interpretation of the Criminal Justice (Sentences) Act 1986 and its application to the situation.

The defendant (respondent in this matter) was found guilty after a trial of dangerous driving causing the death Anna Nakium a female passenger on the back of a utility that he was driving on the 11th December, 1992.

There has not been any appeal against the finding of the learned Magistrate by the respondent and therefore his findings of fact must stand. An appeal court is normally reluctant to overturn the findings of fact of a court which is heard and assessed the witnesses before it. The facts show that the respondent was not the owner of the vehicle he was driving at the time.

He had taken his own vehicle in for some form of work on it and was using another vehicle. Before starting off on that particular morning the vehicle would not go into reverse. He had to get his passengers to go off turn round and then drive away. This showed him that there was a problem with the gears. He then proceeded down the road towards Lorengau town. Some of the State witnesses said he was going at high speed. On the way down the gears again failed and eventually the brake failed.

The learned Magistrate found that the condition of the vehicle was within the knowledge of the respondent but took into account other factors and eventually sentenced the respondent to three months in hard labour and suspended all of the sentence.

A distinction has been drawn in dangerous driving causing death cases to deliberately driving dangerously for example under intoxication, at high speed on a crowded highway and what has become referred to as a "heedless" situation such as that in the precedent Karo Gamoga -v- The State where the Supreme Court drew distinction between dangerous reckless driving and a more heedless driving.

The finding of a court has to be that the accused, the respondent in this matter drove dangerously. As I have said there has been no appeal against the finding of fact.

I would say on the fact before me that this was the Gamoga type situation and sentence would have to be assessed on given that situation.

The maximum penalty for this offence is five years in hard labour in National Court, lower in District Court. The defendant by all accounts was a first offender and was not in trouble before. He had run a trial which always attracts a higher sentence. Gamoga, it must be remembered, also ran a trial.

On the facts before me I would say a heavier sentence was warranted as the defendant respondent had continued to drive in the knowledge that he had defective vehicle and in the knowledge that he had a large number of passengers. It seems to me a sentence in the region of 6 to 0 months would have been more appropriate. This is not an all fours with other cases heard at Lorengau at the time; there was no suggestion that he was intoxicated.

Part of the argument before the court related to the application of the Criminal Justice (Sentences) Act 1986. It appears not have been addressed completely in the lower court. I do not know whether its failure to be addressed was because it was overlooked or forgotten.

The provisions vest a discretion in the court. They provide at Section 3(2) as follows:

"There may be deducted from the length of any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed."

Hence, the provision vests a discretion in the court to deduct the length of the term of imprisonment provided that term in custody was in connection with the offence for which the sentence was imposed.

The offender at that time (the respondent now) did have bail allowed to him. From the submissions before me I gather that the decision not to take the benefit of that bail allowed was because of fear of reprisal and his own welfare not (as is more common) because he had no money. He decided not to exercise the right that is vested in the Constitution and which the District Court exercised in his favour.

The State says that that was something he decided and that the Court should take into account his motives in not taking benefit of the bail situation.

I have thought about this and I have endeavoured to do some research on the question. I cannot find any precedent law on this point. The Criminal Justice (Sentences) Act 1986 is a comparatively new Act in our jurisdiction although similar provisions are common in other jurisdictions but I am not able to find a ruling on whether the discretion should be exercised for or against a person when they voluntarily decided not to take the benefit of a bail.

I am aware that in some jurisdictions people allowed bail deliberately do not take benefit of bail because in those other jurisdictions time in remand to notionally increased by a multiplier so affecting the balance of sentence. Therefore they are better off if they receive a sentence if they had been in remand first. There is no similar multiplier provisions in our legislation.

It appears to me that the wording of the Criminal Justice (Sentences) Act refers to the period "in which the offender was in custody in connection with the offence". It does not fetter the courts discretion or oblige the court to take cognizance of people who were allowed bail and those who did not.

The accused was in custody in connection with this offence. I think in the circumstances it is one where he was deprived of his liberty and he was deprived of his liberty in connection with the offence.

Given those facts this is a case where I am inclined to exercise the courts discretion in favour of the respondent because he in fact was deprived of his liberty.

I therefore notionally sentence him to 7 months imprisonment with hard labour a period between 6 and 9 which I have said is appropriate. I deduct the period in remand and I therefore impose no further custodial sentence upon him.

-------------------------

Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor