DC7039
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 328 of 2021
BETWEEN
THE POLICE
Informant

AND
NICK TITUS
Defendant

Waigani: O Ore Magistrate 

2021:  20th of December
             

TRAFFIC OFFENCE – Driving Without Due Care and Attention – s 28(2) (a) – Road Traffic Rules- Road User Rules 2017

TRAFFIC OFFENCE- Sentencing – Plea of Guilty – Discretion of Court to impose appropriate penalty – Consideration of Mitigating and Aggravating Factors – fine of K1250

PNG Cases Cited

Vagi Gau v Ken Kone Eava [1976] PNGLR 485
Bate v Nea [2021] PGDC 165; DC7023 (23 November 2021)
Police v Alex Buna DC4079
Police v Gispe [2020] PGDC 17; DC4073 (3 November 2020)

Overseas Cases

Nil

References

Legislation

Road (Offences & Penalties Regulation) Act 2017
Road Traffic Rules – Road User Rules 2017

Counsel
Bigam E, for the Informant 
The Defendant in Person
RULING ON SENTENCE
20th December 2021

1.	O Ore, Magistrate: Nick Titus was charged with one count of Driving Without Due Care and Attention in contravention of section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.

2.	He appeared on the 14th of December 2021 and was arraigned and thereafter pleaded guilty. The plea was confirmed later on when he agreed to the statement of facts read to him by Police Prosecutor Sergeant Bigam.

3.	The matter returned for submissions on sentence on 16th December 2021. Both parties at that time made oral submissions regarding their views on an appropriate sentence. The Court after hearing submissions adjourned to today for its ruling on sentence.

FACTS

4.	The following are the summary of facts in which Nick Titus accepted and pleaded guilty to.

5.	On Sunday 28th November 2021 at around 4pm in the afternoon, the Offender was driving a Nissan Navara Double Cab White in colour with the registration number BBY 058. 

6.	He was travelling from Sogeri Way to Bomana when he bumped into a Toyota Camry Sedan white and red in colour bearing the registration number BFS 599 which was driven by the Complainant one Ins Harrisol. The Toyota Camry was on its lane heading to 14 mile when it was hit on its right side by the Nissan Navara which was been driven by the Offender. It was reported that the Offender at that time was driving an unregistered vehicle and was under the influence of liquor or alcohol and was in full Police uniform. He was arrested and charged and had his rights under the Constitution read to him. 

ANTECEDENT REPORT 

7.	The offender is a 31 year old male from Chuave District in Simbu Province. He is married with 4 children and is currently a serving member of the Royal Papua New Guinea Constabulary. He earns around K500 net salary after deductions and currently resides at Bagita Police Barracks, NCD. There is no record of any prior convictions.

ALLOCUTUS

8.	When asked if he wished to say anything before being sentenced, the Offender expressed his deep regret of what had happened. He apologised to the Court and said he was very sorry for what had happened. He said that what happened was an accident. He said that he is married with 4 children and his family is likely to be affected if he goes to prison. He asked the Court for mercy and to be lenient in its sentencing.

ISSUE

9.	The issue before this Court is what sort of punishment should be imposed on the Defendant.

RELEVANT LAW

10.	The Penalty for Driving without due care and attention under Section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017 is a maximum fine of K2500 and an infringement fee of K500. It is not provided for under the Road Traffic Rules but rather under Schedule 1 of the Road (Offences & Penalties Regulation) Act 2017.

SENTENCING

11.	In the case of Vagi Gau v Ken Kone Eava [1976] PNGLR 485, sentencing is a discretionary power of the District Court. The Court when exercising this discretion must take into consideration the background of each case and also treat each individual offender’s separately. I have adopted this principal in my recent case of Bate v Nea [2021] PGDC 165; DC7023 (23 November 2021) and will adopt the same here.

12.	Oral submission by Sergeant Bigam was short and straight to the point. He submitted that the maximum penalty for this offence is K2500. He submitted that the Offender was a serving Police Officer who was driving an unregistered vehicle whilst under the influence of liquor. Sergeant Bigam further submitted that this type of offence (Driving without due care and attention) has become prevalent in society and that an example needed to be set to educate drivers to take precautions whilst driving. He finally submitted that sentencing remains a discretionary power of the Court.

13.	The Offender did not have anything further to say when given the opportunity to make his submissions. He stated that all he had to say was said during allocutus.

Starting Point

14.	In the District Court cases of Police v Gispe [2020] PGDC 17; DC4073 (3 November 2020), Police v Alex Buna DC 4079 and Bate v Nea [2021] PGDC 165; DC7023 (23 November 2021), the starting point for sentencing an offender who pleads guilty is the midpoint of the maximum penalty. Only after the midpoint has been established will the Court decide after considering the circumstances of the case whether to go up or come down with its sentencing. In this case, the midpoint of K2500 being the maximum penalty is K1250.

15.	The Offender in this case is a serving member of the Royal Papua New Guinea Constabulary. At the time of committing the offence he was in full uniform, was drunk and was driving an unregistered vehicle. 

16.	The duty imposed on him as an officer of the law is to conduct himself in an exceptional manner in public. What sort of example does this portray to his kids, wife, family, the wider community or public at large? This sends out a wrong message to general public and an appropriate penalty should be imposed to deter the offender from committing such an offence again in the future.  

17.	As to the accused himself, I turn to the Mitigating factors and the Aggravating factors. 

18.	The Mitigating factors are that:

a.	He pleaded guilty on arraignment.
b.	He is a first time offender.
c.	He expressed genuine remorse.

19.	The Aggravating factors are:

a.	He failed to keep a proper lookout whilst driving.
b.	He was driving an unregistered vehicle
c.	He was under the influence of alcohol whilst driving

20.	The other factor which comes to my mind is that the Offender is a serving member of the Police force.

21.	I am inclined to agree with submission by Sergeant Bigam that an appropriate penalty should be one that will deter people from committing such an offence.

CONCLUSION

22.	Considering the above, I find that the appropriate penalty is a fine of K1250 given the Offender’s position in society. I will not make any orders for imprisonment.

COURT ORDERS

23.	I therefore make the following orders;

a.	The Offender is fined K1250 after having pleaded guilty and convicted of the charge of Driving Without Due Care and Attention under section 28 (2) (a) of the Road Traffic Rules – Road User Rules 2017.

b.	The Offender’s bail money of K500 is forfeited and converted into Court fine and pays for part of the fine imposed by this Court.

c.	The Offender is to settle the remaining Court fine balance of K750 by or before Friday 31st of December 2021. 

d.	Matter shall return to Court on Thursday 06th January 2022 at 9:30 am to check for compliance.
 
Lawyer for the Informant  		Police Prosecutions 
Lawyer for the Offender: 		In Person