Wilkeson v Grant; Stephens v Grant; Michalov v Grant [1967-68] PNGLR 112 (28 September 1967)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 112 - Wilkeson v Grant; Stephens v Grant; Michalov v Grant

[1967-68] PNGLR 112

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

WILKESON

V.

GRANT

STEPHENS

V.

GRANT

MICHALOV

V.

GRANT

Lae

Minogue J

22 September 1967

26 September 1967

28 September 1967

CRIMINAL LAW - Speeding - Penalty - Prevalence of offence - Power to suspend or cancel driver’s licence - Principles to be applied by Supreme Court in reviewing penalty - Motor Traffic Ordinance 1950-1965, s. 21 - Motor Traffic Regulations, reg. 62.

The Supreme Court will only vary a penalty imposed by the District Court where such penalty appears to be unreasonable or has not been fixed in the due and proper exercise of the court’s authority.

House v. The King (1936), 55 C.L.R. 499; Cranssen v. The King [1936] HCA 42; (1936), 55 C.L.R. 509; O’Neill v. Graham, [1952] Q.S.R. 79, followed; Hughes v. Hopgood, [1950] Q.W.N. 21, referred to.

Even if an offence is prevalent in the district the District Court must not in fixing penalty make any one offender a scapegoat for others; the circumstances of the offence and of the offender must also be given due weight.

R. v. Withers (1935), 25 Cr.App.R. 53, at p. 54, referred to.

To deprive a citizen of the right to drive a motor vehicle where he requires that right for carrying out the daily duties of his occupation is a penalty which, if wrongly imposed, amounts to a substantial miscarriage of justice.

A magistrate in the District Court has a general power to suspend or cancel the driver’s licence of a person convicted of an offence against the Motor Traffic Ordinance 1950-1965 or the Motor Traffic Regulations; the power is not limited to the case where in committing the offence the offender has shown himself to be physically incapable of driving properly or has shown a mental attitude, such as recklessness, indicating that he is really unqualified to drive.

Appeals from District Court.

Three appeals, against sentence, brought respectively by Frank Edward Wilkeson, William Herbert Stephens, and Andry Michalov, were heard together. Each appellant had pleaded guilty in the District Court at Lae to a charge of having driven a motor vehicle at a greater speed than thirty miles per hour contrary to the Motor Traffic Regulations, reg. 62. The sentences awarded, and all relevant facts, appear in the reasons for judgment.

Counsel:

Hickey, for the appellant Wilkeson.

Rissen, for the appellants Stephens and Michalov.

Wignall, for the respondent.

Cur. adv. vult.

28 September 1967

MINOGUE J:  These appeals came on for hearing before me at Lae on 22nd and 26th September. Each was an appeal against the severity of penalty imposed by the resident magistrate at a hearing conducted by him at Lae in the District Court on 19th May last. Each appellant was charged and pleaded guilty to the charge that being the driver of a motor vehicle upon a public street within the township of Lae, he drove that vehicle at a greater speed than thirty miles per hour contrary to reg. 62 of the Motor Traffic Regulations made under the Motor Traffic Ordinance 1950-1965. The appellant Wilkeson was convicted of driving in Milford Haven Road on 12th May at a speed of fifty-two miles per hour. The appellant Stephens and the appellant Michalov were similarly convicted of driving in the same road on 11th May at speeds of fifty-one and forty-four miles per hour respectively. In each case the magistrate fined the defendant the sum of twenty dollars and directed that his licence be cancelled and further declared that he be disqualified from holding a licence for a period of six months. On 28th September I allowed each appeal and varied the penalty imposed in the cases of Wilkeson and Stephens by substituting a fine of thirty dollars in lieu of the fine of twenty dollars imposed and by removing the disqualification ordered by the magistrate and in the case of Michalov by removing the disqualification. At the time I shortly stated my reasons but said that I would amplify and publish reasons for my decisions at a later stage. Questions of importance were raised by Mr. Wignall who appeared for the respondents which required further research than the quite inadequate library facilities at Lae permitted.

The appeals were brought under Pt XI of the District Courts Ordinance 1963-1965 and Mr. Wignall submitted that the powers of this Court on the hearing of an appeal under this Part are limited because, as he said, the court must pay heed to well-recognized principles governing the interference by a superior court with the exercise of a discretion by an inferior court and I could only allow each appeal if applying those principles I were satisfied that the magistrate was manifestly wrong. He urged upon me that where an appeal is against sentence the judge should not interfere unless he can find either that this is manifestly excessive or there are some circumstances which show that the magistrate in awarding it acted under a misapprehension of fact or on some wrong principle and he relied on what was said by Macrossan C.J. in Hughes v. Hopgood[clxxxiv]¹. Appeals of this character were discussed at length by the Full Court of Queensland in O’Neill v. Graham[clxxxv]². Although the question there came before the court upon an order to review under s. 209 of the Queensland Justices Act 1886 as amended in 1949 in which the appellant sought to review inter alia the sentence imposed, I am content to accept the views of their Honours of the Full Court as expressing the general principle to be applied on appeals to a superior court against sentence. The court founded upon what was said by Dixon, Evatt and McTiernan JJ. in House v. The King[clxxxvi]³ and in Cranssen v. The King[clxxxvii]⁴. In the latter cases their Honours had this to say: “This Court is thus specifically given a jurisdiction to hear appeals from sentences of the Supreme Court of the Territory. But, although this consideration may distinguish the power it is called upon to exercise from the general appellate power invoked in House v. The King, it remains true that the appeal is from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.”

In O’Neill v. Graham[clxxxviii]⁵ a right of appeal against sentence was specifically given by legislation which like the District Courts Ordinance is silent as to the principles to be applied by the appellate court. Townley J. who delivered the judgment of the Full Court of Queensland thought that Cranssen v. The King[clxxxix]⁶ sets out the principles which should guide that court in reviewing under the Justices Acts a sentence imposed by a magistrate where the enactment which imposed the penalty lays down merely a maximum and I do not presume to express any differently by or better the principles to be applied in this Court. On that basis then I decided that the sentences of the resident magistrate in the court at Lae could not stand but should be varied.

I should also dispose of an ingenious argument put forward by Mr. Rissen who appeared for the appellants Stephens and Michalov. He submitted that the power given to the magistrate by s. 20 of the Motor Traffic Ordinance 1950-1965 to suspend a driver’s licence or to cancel it and disqualify the driver from holding a licence was directed solely to a driver’s qualifications to drive, i.e. the magistrate was only entitled to exercise the power if there was something in the circumstances of the defendant’s driving which showed he was unfitted to handle a motor vehicle on a public highway—something in his driving which either showed that he was physically incapable of managing or controlling his vehicle or something which showed a mental attitude such as recklessness or such indifference to the safety of other road users, pedestrian or vehicular, that he was really unqualified to drive. I should point out that in none of these three cases I was considering, was there any conduct or driving of this sort alleged. No doubt consideration of this sort may properly be taken into account by the magistrate and may indeed be determining considerations in his decision to suspend or cancel but in my opinion he is not so restricted. The ordinance leaves him at large. The opening words of the section:

“The Court before whom a person is convicted of an offence against or contravention in provisions of this Ordinance or Regulations may in addition to any other punishment to which he may be liable . . . .”

show that suspension or cancellation is a further punishment which may be imposed.

The learned magistrate made a very careful report on his reasons for inflicting the penalties which he did. In that report he stated that on 19th May, 1967, a total of eight breaches of reg. 62 of the Motor Traffic Regulations were complained of before him, six of which were heard. On the hearing of one of these complaints, although the magistrate could not recall which one, he spoke as follows at the time of announcing his sentence: “One cannot help but observe the propensity of drivers of motor vehicles in Lae to pay complete disregard for the Motor Traffic Regulations which control the speed at which they must drive within the township. I am in complete agreement with the present campaign being carried out by the police to enforce Motor Traffic Regulations. It is my intention to fully support this campaign so long as I remain in Lae.” He went on to report that the first sentence quoted above was the result of his own observations of the driving habits of the general drivers resident in Lae and that speeding had virtually become a part of the daily life of a large number of drivers of all races and either sex. It had been a contributory cause to a number of motor vehicle accidents in which death had resulted. Since 1st January, 1967, there had been six inquests into deaths following motor vehicle accidents and in each case it was found that excessive speed was either the direct cause or a factor contributing to that cause. He then went on to comment on the increasing motor accident rate in Lae, the number of major accidents having increased from five during February to fifteen in May. He concluded by reporting that the police had informed the general public of their present campaign against breaches of the Motor Traffic Ordinance and Motor Traffic Regulations, which campaign resulted from an increasing number of complaints by private citizens and public bodies of breaches of the traffic code. But it seemed to me that whilst he was right to express concern for the apparently bad and dangerous standard of driving in Lae, he paid too little regard to the individuals concerned, to their previous good driving record and to the conditions pertaining at the time of their offences. Because of the uniformity of the penalties imposed and because it was said to me from the Bar table that the other cases dealt with on that day had been similarly treated, I thought this a proper case to call for the court records. I found that there were three other convictions for exceeding the speed limit in each of which cases a fine of twenty dollars was imposed and the defendant’s licence was cancelled and he was disqualified from obtaining a licence for six months. In the first of these cases the speed proved was thirty-nine miles per hour, in the second forty-two miles per hour and in the third forty-seven miles per hour. In the case of the appellant Stephens, the depositions showed that there was no traffic nor were there pedestrians ahead of him when he accelerated to the forbidden speed. In the other cases the traffic varied from light to moderate and the weather conditions from fine to wet. No allegations were made in any of the cases of a condition of danger being created for either vehicles or pedestrians and in no case did the vehicles concerned swing out of traffic or execute any unusual manoeuvre. It seemed to me that the magistrate paid little or no attention to the variation in the speeds alleged before him which ranged from thirty-nine miles per hour to fifty-two miles per hour, nor to the fact that in none of the cases before him was it alleged that any danger to the public had been actually or potentially created. Suspension or cancellation of a driving licence is a serious penalty, particularly where a driver is required to use a vehicle in the course of his employment as was the case with each of the appellants before me and not one to be imposed lightly. As was said by McKinnon J. in delivering the judgment of the Court of Criminal Appeal in R. v. Withers[cxc]⁷: “We have been told that there had been a considerable amount of warehousebreaking in Leicester at that time and that it was the policy of the Recorder to impose a sentence which might act as a deterrent to those who commit that class of crime. That is a proper consideration so long as it does not result in a convicted man being made the scapegoat of other people who have committed similar crimes but have not been caught and convicted.” And I was left with the impression that this was what in effect the magistrate, albeit unconsciously, was doing. That is, that he was making the errant drivers before him on that day scapegoats for the drivers responsible for the increasing toll of major accidents in Lae. With these considerations in mind, I came to the conclusion that the exercise of the magistrate’s discretion had been unsound and the penalties were manifestly excessive. I further concluded that there had been in each case a substantial miscarriage of justice. If the magistrate had given full consideration to the matters I have adverted to, I doubt whether he would have imposed the standard penalties that he did. To deprive a citizen of the right to drive, where as in the cases before him each required that right for carrying out the daily duties of his occupation, is a penalty which, if wrongly imposed, was in my opinion clearly a substantial miscarriage of justice.

For the reasons which I have endeavoured to state, I varied the adjudications appealed from and sought by such variations to make a distinction in the penalties consonant with the degree of excess of the speed limit.

Appeals allowed. Punishments varied.

Solicitors for the appellant Wilkeson: Lefevre, Hickey & Co.

Solicitor for the appellants Stephens and Michalov: G. R. Rissen.

Solicitor for the respondent: S. H. Johnson, Crown Solicitor.

class=MsoEndnoteReferencerence>[clxxxiv][1950] Q.W.N. 21.

[clxxxv][1952] Q.S.R. 79.

[clxxxvi](1936) 55 C.L.R. 499, at p. 504.

[clxxxvii][1936] HCA 42; (1936) 55 C.L.R. 509, at pp. 519-520.

[clxxxviii][1952] Q.S.R. 79.

[clxxxix](1936) 55 C.L.R. 509.

[cxc] (1935) 25 Cr.App.R. 53, at p. 54.