Warep v State [2009] PGNC 6; N3579 (6 January 2009)

N3579

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CRA NO 29 OF 2008

BETWEEN:

JAMES WAREP
Appellant

AND:

THE STATE
Respondent

Minj & Mt Hagen: Makail AJ
2008: 14th November & 2009: 06th January

CRIMINAL APPEALS - District Court appeal - Appeal against sentence - Dangerous driving causing grievous bodily harm - Two separate offences - Guilty plea - Severity of sentence - Head sentence of 12 months imprisonment in hard labour imposed - Sentencing is an exercise of discretion - Prevalence of offence - For personal and public deterrence - Fair and reasonable sentence imposed - Appeal dismissed - Criminal Code - Sections 19, 328(2)&(5), 420 & schedule 2.

Cases Cited:

Kenny Lau -v- The State [1990] PNGLR 191
The State -v- Philip Iparu (2005) N2995
Karo Gamoga -v- The State [1981] PNGLR 443
The Public Prosecutor -v- Sima Kone [1979] PNGLR 294
The Public Prosecutor -v- Willy Moke Soki [1977] PNGLR 294

Counsel:

Appellant in person
Mr J. Waine, for Respondent

6 January, 2009

JUDGMENT

1. MAKAIL AJ: I heard this appeal at Minj National Court against sentence imposed by the Mt Hagen District Court and reserved my decision until 28th November 2008 but due to other pressing matters, I have not been able to reach a decision until today. This is my decision.

2. In this appeal, the Appellant represents himself and appeals the head sentence of 12 months imprisonment in hard labour imposed by the Mt Hagen District Court on 19th September 2008 on his guilty plea for dangerous driving causing grievous bodily harm contrary to section 328(2)&(5) of the Criminal Code. The District Court deducted 2 months, leaving a balance of 10 months for the Appellant to serve.

BRIEF FACTS

3. The facts giving rise to this appeal and on which the Appellant pleaded guilty to before the District Court are as follows; on 4th July 2008 between 7:00 am and 7:30 am, the Appellant drove a PMV Isuzu NPR truck bearing Registration No P: 0953C down Murmur Pass along Tambul road towards Mt Hagen town. There were 11 passengers in the PMV truck. The victim was one of the passengers.

4. As it was in the morning, the road was covered with fog, hence reducing the visibility of the road. The Appellant drove down the hill at third gear and mistook a section of the road as being a straight one when it had a curve further on. When approaching the curve, he realized his misjudgement at the last minute and quickly applied brakes to slow down but the PMV truck swayed and skidded across the road and almost ran into a drain. In order to avoid the drain, he swung it onto the right hand side of the road, causing it to run off the road and over turned. It rolled a couple of times before it landed at the foot of the hill.

5. The victim sustained very serious injuries to her neck and spinal cord and was hospitalized at Mt Hagen General Hospital. The other passengers including the Appellant also sustained injuries. Fortunately, no one died.

GROUNDS OF APPEAL

6. In the Notice of Appeal filed on or around 24th September 2008, the Appellant relies on the following grounds of appeal:

"1. First time offender not considered.

2. Assets and extended family to take care.

3. Need to be present/ organize compensation to 11 victims.

4. Need to be present to assist victims pursue insurance claims.

5. Seek N/C orders to impose monetary fine due to above".

THE LAW

7. The offence of dangerous driving causing grievous bodily harm is found in section 328(2) & (5) of the Criminal Code. It is one of those offences where it can be tried as an indictable offence before this Court or summarily before the District Court by virtue of section 420 and schedule 2 of the Criminal Code at the election of the Public Prosecutor. In this case, the Appellant having being charged by the police for this offence was tried before the District Court where he pleaded guilty and was sentenced to 12 months imprisonment in hard labour but 2 months was deducted leaving 10 months to serve.

8. Section 328(1), (2) & (5) states as follows:

"328. Dangerous driving of a motor vehicle.

(1) For the purposes of this section -

"driving a motor vehicle on a road or in a public place dangerously" includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including -

(a) the nature, condition, and use of the road or public place; and

(b) the amount of traffic that –

(i) is on the road or in the public place at the time; or

(ii) might reasonably be expected to be on the road or in the public place;

"public place" -

(a) includes every place of public resort open to or used by the public as of right and any field, ground, park, reserve, garden, wharf, pier, jetty, market, passage or any other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, whether or not it is at all times so open; but

(b) does not include a track that is used for the time being as a course for the racing or testing of motor vehicles, and from which other traffic is excluded at the time.

(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.

Penalty: Subject to the succeeding provisions of this section –

On summary conviction - a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.

On conviction on indictment - a fine not exceeding K1, 000.00 or imprisonment for a term not exceeding two years, or both...

(3) ............

(4) ............

(5) If the offender causes the death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years".

GROUNDS 1 - 5 OF NOTICE OF APPEAL

9. I will consider all the grounds from 1 to 5 of the Notice of Appeal together because they raise the central issue of whether or not the District Court did take into account the mitigating factors in favour of the Appellant in its decision. If so, was it within the District Court’s discretion to have imposed a fine or a suspended sentence on the Appellant?

10. The Appellant says that he pleaded guilty to the charge before the District Court and is a first offender. At the time he drove and had the accident, he was not under the influence of liquor. He also says that he did not collide with any other vehicle. It was purely an accident as he run off the road and the victim who happened to be one of the passengers sustained injuries in the accident.

11. He also says that he co-operated fully with the police by admitting the offence. He and his relatives paid an undisclosed amount of compensation to the victim. In the circumstances, he says that the head sentence of 12 months (less 2 months and balance of 10 months) imprisonment is too excessive. He also submits that the District Court should have imposed a fine rather than a head sentence of 12 months in light of the mitigating factors operating in his favour. As the District Court did not, it fell into error.

12. Counsel for the State did not seriously oppose the submissions of the Appellant for the sentence to be quashed and substituted for a fine. Instead, he submits that as the Appellant had pleaded guilty to the offence, a first offender and co-operated with the police, an appropriate sentence would have been a suspension of the 10 months and a cancellation of his licence as well as disqualification to hold a licence for a period of time.

13. It must be remembered that sentencing of an offender is an exercise of discretion by the Court by virtue of the Court’s powers conferred by the Criminal Code or other statutes. In this case, the District Court was asked to decide a sentence by exercising its powers under sections 328(2) & (5) and 19 of the Criminal Code.

14. It should also be noted that according to the information laid by the police against the Appellant in the District Court, the police charged the Appellant under section 328(2) and section 328(5) of the Criminal Code. This means that, first, the Appellant was charged with dangerous driving per se. See section 328(2) of the Criminal Code. This is an offence of its own. It is an offence if the driver drives a motor vehicle dangerously. What is dangerous driving is determined from the circumstances of a particular case, but some of the factors that make driving dangerous are; driving at excessive speed or driving with overload of passengers or cargoes. A classic example of a case of dangerous driving is where the driver drives at excessive speed and runs off the road but sustains no injuries or dies.

15. Secondly, as the Appellant was also charged under section 328(5) of the Criminal Code, it means that the Appellant was charged with causing grievous bodily harm to another person. See section 328(5) of the Criminal Code. This is also an offence of its own. It covers cases where, as a result of a driver’s dangerous driving, a person or group of persons get injured. The victims can be passengers, pedestrians or bystanders. The end result of combining both offences is that, it becomes an offence of "dangerous driving causing grievous bodily harm". This is where the police add on the second charge to the first charge of dangerous driving.

16. This case is a good example of what I have tried to explain above. Here is a case where as a result of the dangerous driving of the Appellant, passengers including the Appellant himself sustained injuries when the PMV truck overturned due to excessive speed. One of the passengers, namely the victim was injured and reported the accident to the police where the Appellant was subsequently arrested and charged.

17. In terms of penalty, each offence carries its own penalty. For the offence of dangerous driving under section 328(2) of the Criminal Code, if it is a summary conviction, that is tried, convicted and sentenced by the District Court, the penalty is a fine not exceeding K200.00 or imprisonment for a term not exceeding 6 months, or both. If it is a conviction on an indictment, that is tried, convicted and sentenced by the National Court, the penalty is a fine not exceeding K1,000.00 or imprisonment for a term not exceeding 2 years, or both. For the offence of dangerous driving causing grievous bodily harm under section 328(5) of the Criminal Code, if the Appellant is convicted on an indictment, the penalty is imprisonment for a term not exceeding 5 years. In other words, the maximum penalty for this offence is 5 years imprisonment.

18. Prima facie, the use of the phrase "conviction on indictment" may mean if the offence of dangerous driving causing grievous bodily harm was tried summarily, and the Appellant was convicted by the District Court, then the maximum penalty of 5 years imprisonment would not apply. That may appear to be a correct interpretation but first, it must not be forgotten that the Public Prosecutor has made an election between the two, that is the charge being tried summarily as opposed to it being tried as an indictable offence and chose the former. That means that by virtue of section 420(1) of the Criminal Code, the District Court has summarily tried and sentenced the Appellant upon his guilty plea to the charge.

19. In terms of penalty, under section 420(2)(a)&(b) of the Criminal Code the District Court may impose a penalty of up to 10 years for any given offence that fall under schedule 2 of the Criminal Code. But where there is a prescribed penalty for the offence, the penalty of up to 10 years would not apply. In this case, the offence of dangerous driving causing grievous bodily harm has a prescribed penalty of up to 5 years imprisonment term. As such, the District Court was bound to impose a sentence of up to 5 years imprisonment on the Appellant.

20. Secondly, it also means that in reality, the Appellant was charged with two offences. One for dangerous driving, and the other for causing grievous bodily harm. Because of the connecting phrase in subsection 2 of section 328, "Subject to the succeeding provisions of this section.....", it means that the penalties for the offence of dangerous driving under section 328(2) of the Criminal Code would not apply if the Appellant is also charged for causing grievous bodily harm to another person or persons. It is the penalty for the offence of dangerous driving causing grievous bodily harm which would apply, that is imprisonment for a term not exceeding 5 years under section 328(5) of the Criminal Code.

21. That being so, I consider that the District Court was bound to consider a penalty other than the ones set out under subsection 2 of section 328 of the Criminal Code. That means that imposing a fine of not more than K200.00 under subsection 2 of section 328 of the Criminal Code was out of the question. The same goes for imprisonment of 6 months or both. In other words, the District Court was correct to consider a penalty under subsection 5 of section 328 of the Criminal Code. That is, a sentence not exceeding 5 years imprisonment.

22. Proceeding on this premise, I have perused carefully the reasons given by the District Court for sentencing the Appellant to 12 months imprisonment less 2 months, leaving 10 months to serve and I can find no error in that decision. I find that the sentence is fair and reasonable given the mitigating factors operating in favour of the Appellant. As I said, the maximum penalty for this offence is 5 years imprisonment but here, the District Court imposed only 12 months imprisonment with 2 months deducted, leaving 10 months for the Appellant to serve. I infer that the District Court may have exercised its sentencing discretion conferred by section 19(1)(a) of the Criminal Code to arrive at that decision. In my view, there is nothing stopping the District Court from utilizing section 19(1)(a) of the Criminal Code in a case where the offence is tried summarily because that has been done in past cases.

23. For example, in Kenny Lau -v- The State [1990] PNGLR 191, His Honour Brown J, (as he then was) was asked to decide whether the decision of the District Court to suspend the Appellant’s driver’s licence in addition to a sentence of 8 months imprisonment was lawful. In that case, it was an appeal from a decision of a Grade V magistrate, sitting as a District Court at Port Moresby on 25th October 1989. The Appellant was convicted after pleading guilty to the offence of dangerous driving causing grievous bodily harm, contrary to s 328(5) of the Criminal Code.

24. The District Court imposed penalties including imprisonment for a period of 8 months (suspended). In addition, the District Court further ordered that the Appellant’s driving licence be suspended for a period of 11 months as from 25th October 1989 and he was disqualified from holding or obtaining any driving licence or permit for that period. The appeal was against the District Court’s order in relation to his driving licence.

25. The Grade V magistrate dealt with the offence summarily under the enabling provisions of section 420 of the Criminal Code. His Honour observed that the District Court acted within its powers in relation to penalty, when it imposed the sentence of 8 months imprisonment since the penalty was within the maximum provided by the last column of schedule 2 and, did not exceed the ceiling prescribed by section 420(2), that is 10 years imprisonment. The question however, was whether the District Court had power to impose a penalty of suspension when it disqualified the Appellant from holding or obtaining any driving licence for a period of 11 months.

26. His Honour made particular reference to section 330(2) of the Criminal Code which provides as follows:

"(2) Where a person is convicted on indictment of an offence in connexion with or arising out of the driving of a motor vehicle by him, the court may, in addition to any sentence that it may pass, order that the offender be, from the date of conviction, disqualified:

(a) absolutely; or

(b) for such period as the court shall specify in its order,

from holding or obtaining a driver’s licence to operate a motor vehicle."

27. His Honour found that section 330 of the Criminal Code was a "penalty" provision. As such, the District Court should have only imposed a penalty that was provided for by section 420, which was the District Court’s only source of power to deal with this offence of "dangerous driving". Schedule 2 prescribed the penalty. His Honour went on to say that section 19 of the Criminal Code enabled the magistrate on summary conviction to discharge an offender on his own recognizance on terms to keep the peace and to be of good behaviour, but there was no other penalty prescribed by the schedule 2 of the Criminal Code consequently, as a matter of law, the Grade V magistrate could not impose any other penalty. His Honour then held that the part of the sentence purporting to disqualify the Appellant from holding a licence was void ab initio.

28. It follows from that decision that any penalty that the District Court may impose for an indictable offence tried summarily like in this case would be a penalty prescribed for that offence under the relevant provision and schedule 2 of the Criminal Code. Further, from the observation of His Honour in the above case, I would say that the District Court is entitled to utilize section 19 of the Criminal Code to also impose other penalties. In this case, it would be perfectly lawful and proper for the District Court to use section 19, more particularly subsection(1)(a) of the Criminal Code to impose an alternative penalty of a head sentence of 12 months imprisonment instead of 5 years imprisonment term.

29. On the other hand, in view of His Honour’s ruling in the above case that a District Court exercising its summary jurisdiction over an offence that falls under section 420 and schedule 2 of the Criminal Code cannot impose any other penalty other than those prescribed under the relevant provisions of the Criminal Code for a given offence, I must reject Mr Waine’s submission that I should substitute the head sentence of 12 months imprisonment with an order for the cancellation of the Appellant’s drivers licence in addition to a suspended sentence. For to do so, would be contrary to the ruling in the above case.

30. Further, in discussing all the above, it must not be forgotten that lives were almost lost as a result of the dangerous driving by the Appellant. Had he driven carefully, such an accident could have been avoided. The sentence imposed is an act of personal as well as a public deterrence. It must remind any would be offenders, especially those PMV drivers who think that they own the road to drive carefully and within the speed limits. That is why, in its decision, the District Court said:

"Sentence

In this case, def has pleaded guilty to a charge of dangerous driving causing bodily injury.

Def has pleaded guilty and a first offender so asks for a custodial sentence as this offence is prevent and def has been extremely negligent, thus causing serious injury.

........negligent and careless driving by Highlanders on public roads in the Highlands. No of people dying on roads is very high in this country and maybe the world so the Court has a duty to address this.

The Court must now make very hard sentencing to help suppress this evil.

Def is sentenced to 12 months less 2 months for pleading guilty. Final sentence 10 months in HL".

31. It is common knowledge and fair to say that nowadays, PMV drivers drive recklessly or dangerously, with no regard to traffic rules and regulations. They drive at excessive speed and over loaded with passengers and cargoes. Some drive under the influence of alcohol whilst others are inexperience. There are others who drive mechanically defective motor vehicles. One need not look far to appreciate why I make these observations. Just take a drive along the Highlands highway towards Kundiawa via Kudjip and Minj or up Wabag way via Tambul and Wapenamanda and you will not miss a speeding PMV bus or truck on the way.

32. These are some of the contributing factors to the high rate of motor vehicle accidents in the country. It is no wonder the District Court cited the Highlands region as one of the areas in the country that has a high turn over of motor vehicle accidents in its judgment.

33. I am unable to find any reported judgments of this Court on sentences for dangerous driving causing grievous bodily harm, but there are many reported judgments of this Court and the Supreme Court on sentences for dangerous driving causing death. One National Court case is The State -v- Philip Iparu (2005) N2995, where His Honour Kandakasi J, sentenced the offender to 3 years imprisonment in hard labour after the offender pleaded guilty to the charge of dangerous driving causing death. The offender was drunk and ran off the road at Wara Lai near Wapenamanda in the Enga Province where four passengers sitting at the back trail of the truck were thrown off and fell onto the big rocks in the river. They sustained severe head injuries and died instantly.

34. A quick survey of the kind of sentences imposed to date reveals a sentence of 12 months in hard labour reduced to the time already spent in custody and awaiting appeal in the Karo Gamoga -v- The State [1981] PNGLR 443. That was a case in which the Supreme Court on appeal found that the Appellant misjudged the speed of the other vehicle (an ambulance) and there was no criminal negligence. Only one out of three people in the vehicle at that time died.

35. In The Public Prosecutor -v- Sima Kone [1979] PNGLR 294, the National Court deferred sentence and in the meantime ordered certain hours of work at a hospital for two years. On appeal against that decision, the Supreme Court quashed the decision on sentence and substituted it with a custodial sentence of 18 months. Mr. Kone was the driver of a vehicle when he was drunk and asked to be driven by others was forced to drive despite his reluctance. He collided into a tree resulting in the death of his child and wife who were passengers in the vehicle at the time.

36. In the Public Prosecutor -v- Willy Moke Soki [1977] PNGLR 294, the Supreme Court was of the view that a sentence above 6 months imprisonment was called for. There, 6 people died out of the Appellant’s dangerous driving. However, because the condition for recognizance in the sentence imposed by the National Court had expired at the time of the Court’s decision, it did nothing about the sentence. There, the Court did hold that, the number of deaths out of dangerous driving causing death is a factor in aggravation, which the sentencing court should take into account.

37. The cases of Karo Gamoga, Sima Kone and Willy Moke Soki (supra) were all decided in the late 1970s and early 1980s. Since then the offences of dangerous driving causing death and grievous bodily harm have not decreased. Instead, they have increased. In most of the cases of dangerous driving causing death and grievous bodily harm, driving at excessive speed is a very significant contributor. It means therefore that, a sentence much higher than those imposed in the late 1970s and early 1980s is warranted. Such a sentence is necessary if the desired purpose of serving personal and general deterrence, which the above Supreme Court decisions clearly speak of, for the safety of the society, is to be achieved.

38. Whilst these are some of the dangerous driving causing death cases, there are some features common in either case. Some examples are; the driver of the motor vehicle driving at excessive speed; over loaded with passengers; driving under the influence of alcohol; driving without licence or expired licence; driving a mechanically defective motor vehicle etc...

39. And so, returning to the case at hand, whilst the District Court did not expressly mention that it did take into account the mitigating factors, except for the plea of guilty in its written decision of 19th September 2008, I am able to infer that it did. It did so because when holding these mitigating factors against the aggravating factors, I am able to say that it concluded that the offence was more serious given its prevalence. Far too many lives are being lost or injured in motor vehicle accidents everyday. These are innocent people who suffer as a result of the dangerous driving of some inconsiderate drivers and it was about time the Courts take a tough stand against drivers who are responsible for these accidents.

40. I should also sound a warning here that one of the grounds of appeal is that the District Court failed to take into account the Appellant’s payment of compensation to the victim. Whilst payment of compensation is a relevant factor, I am of the view that compensation should not be used by offenders like the Appellant in this case to escape criminal responsibility. To my mind, it is one of the mitigating factors which is to be weighed against other competing interests or factors, such as the prevalence of the offence and the nature and extent of the injuries sustained by the victim(s) of the accident.

41. For far too long, offenders have been getting away from the hands of the laws because victims and relatives of victims gladly accept compensation as a means of peace and harmony between the offenders and their line and the victims and their line. This must stop. It is a bad culture and practice which will not help our society in terms of reducing the cases of motor vehicle accidents that occur in this country. And for the victims and their relatives, they should be reminded that compensation cannot act as a substitute for the penalties that are provided under the law, like the Criminal Code. That means, offenders must be brought before the Courts and be punished according to law. If it means the offenders must serve an imprisonment sentence, so be it.

42. In the present case, whilst the Appellant says that he paid an undisclosed compensation package to the victim, I cannot see it as a satisfactory mitigating factor. The prevalence of this offence together with the serious injuries sustained by the victim, I gather were in the mind of the Magistrate in the District Court to persuade him to impose the kind of sentence he did.

43. For these reasons, I can find no error in the decision of the District Court in imposing a head sentence of 12 months in hard labour.

CONCLUSION

44. In conclusion, I find that the Appellant has failed to establish his grounds of appeal and I decline to uphold it. Conversely, I uphold the decision of the District Court.

ORDERS

45. It is therefore the judgment of this Court that the appeal is dismissed and the decision of the District Court of 19th September 2008 is affirmed.

Orders accordingly.

______________________________________

The Appellant in Person
Acting Public Prosecutor: Lawyers for the Respondent