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Police v Lasu [2022] PGDC 19; DC8030 (15 February 2022)

DC8030

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS TRAFFIC JURISDICTION]

WTC No 35-36 of 2022
BETWEEN

THE POLICE
Informant

AND

RAYMOND LASU
Defendant

Waigani: O Ore Magistrate

2022: 15^th February 2022
      

TRAFFIC OFFENCE –Driving Without Due Care and Attention – s 28(2) (a) – Road Traffic Regulations- Road User Rules – Driving without being Licensed – s 7 (a) Road Traffic Regulation – Licensing of Drivers 2017

TRAFFIC OFFENCE- Sentencing – Plea of Guilty on both charges – Discretion of Court to impose appropriate penalty – Consideration of Mitigating and Aggravating Factors – fine of K1500 for Driving Without due Care – Fine of K500 for Driving with Being Licensed – Offender to remain in custody until full payment of Court fine

PNG Cases Cited
State v Mavung [2012] PGNC 255
Vagi Gau v Ken Kone Eava [1976] PNGLR 485
Bate v Nea [2021] PGDC 165; DC7023
Police v Koim [2022] PGDC 6; DC8003
Police v Kops [2022] PGDC 7; DC8004
Police v Paua [2021] PGDC 102; DC6055
Police v Titus [2021] PGDC 184; DC7039

Overseas Cases

Nil

References

Legislation
District Court Act
Road (Offences & Penalties Regulation) Act 2017
Road Traffic Regulations – Road User Rule 2017
Road Traffic Rules – Licensing of Drivers 2017

Counsel
Wamuru J, for the Informant
The Defendant in Person

RULING ON SENTENCE

22^nd February 2022

1. O Ore, Magistrate: Raymond Lasu pleaded guilty to one count of Driving without Due Care and one count of Driving Without being licensed.
   
2. On 26^th of January 2022, the Offender appeared from custody and was represented by Counsel Mark Leo from Jeffersons Lawyers. Counsel sought leave to make an oral application for bail. Being satisfied, leave was granted and he proceeded to make his application. Police Prosecutor Senior Sergeant John Wamuru however objected to bail for reasons that the Offender was a flight risk and if granted bail would abscond bail.
   
3. The Prosecutor further submitted that the facts in which both offences were committed were serious in that the Offender was driving a stolen motor vehicle when he was caught. Coupled with the fact that he had a prior conviction, the Court refused bail. Counsel for the offender was instructed to file proper a bail application supported by guarantors. The Offender was arraigned and plead guilty to the charges against him.
   
4. Since then, the Offender has been appearing in Person from custody. His Lawyer has not appeared on his behalf for the past two mentions leaving this Court with the view that he has ceased representing the offender. I also find no formal Notice of Appearance on file confirming his representation for the offender.
   
5. The Offender appeared from custody and made submissions.
   

SUMMARY OF FACTS

6. The following is the summary of facts that the Offender agreed to and pleaded guilty for both charges.
   
7. On Sunday 23^rd January 2022 at about 2:30pm, the offender now before the Court was driving a Toyota Camry Sedan, Silver Colour, registration number not attached, along Morata Road.
   
8. The offender stole the vehicle from Morata Back Road (towards Gerehu) and took it into the Morata Community Hall area. He drove the vehicle at a high speed, out of Morata Community Hall area and crashed into a Toyota 5 Door Land Cruiser white in colour bearing the registration number BGD 045 which was travelling from the opposite direction.
   
9. Upon checking, Police found that the Offender had no license for driving and he was under the influence of alcohol.
   
10. The Offender was taken to Four Mile Police Station where he was formally arrested and charged for Driving without Due Care and Attention and for being an unlicensed driver. He was told his Constitutional Rights before placed in the Boroko cells.
    

ANTECEDENT REPORT

11. The offender is a 28-year-old male from Kiwi Village, Wabag District in Enga Province. He is married with 4 children and is unemployed. He has a prior conviction and spent some time in Bomana.
    

ALLOCUTUS

12. On allocutus, the offender said sorry that he drove and bumped into the Toyota Land Cruiser. He said the Traffic Police held him and he spent time at Boroko and Bomana. He asked the Court for mercy.
    

ISSUE

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

RELEVANT LAW

14. Section 7 (a) of the Road Traffic Regulations – Licensing of drivers 2017 provides for the Offence of Driving without Being Licensed. It states as follows:
    

DRIVERS REQUIRE A CURRENT PERMIT OR LICENCE

A person must not–

(a) drive a motor vehicle on a public street; or

(b) cause or permit another person to drive a motor vehicle on a public street,

unless the driver holds a current learner’s permit, provisional driver’s licence or full

driver’s licence for that class of motor vehicle in accordance with this Rule.

15. Section 28 (2) (a) of the Road Traffic Regulations – Road User Rules 2017 provides that Driving without Due Care and Attention is an Offence. This Section reads as follows:
    

“28 GENERAL DRIVING RULES

(1) ................

(2) The driver of a motor vehicle on a public street must not–

(a) drive without due care and attention; or.....”

16. The penalties for both offences are provided for under Schedule 1 of the Road (Offences & Penalties Regulation) Act 2017. For the offence of Driving without Being Licensed, the penalty is an infringement fee of K500 or a fine not exceeding K2500. The same penalty also applies for the offence of Driving without Due Care and Attention; an infringement fee of K500 or a fine not exceeding K2500.
    
17. Sentencing is a discretionary matter for the Court. There are numerous case laws that dwell into this discretionary power that is vested in Courts. Some of these cases include Vagi Gau v Ken Kone Eava [1976] PNGLR 485; Police v Koim [2022] PGDC 6; DC8003; Police v Kops [2022] PGDC 7; DC8004 and Bate v Nea [2021] PGDC 165; DC7023.
    
18. In the exercise of its discretion in deciding an appropriate penalty, the Court must be objective and treat each case according to its own back ground. The background of each case will defer and includes the facts of each case, the mitigating factors and also the aggravating factors. These along with similar recorded cases all play a crucial part in assisting the Court to determine an appropriate penalty.
    

SENTENCING

19. Senior Sergeant Wamuru for the prosecution filed written submissions addressing the issue on sentence. The submission was primarily for the offence of Driving without Being Licensed. Given that both offences arose from the same set of facts, he adopted his submissions and applied it to the second charge of Driving without Due Care and Attention.
    
20. In his submission, Prosecutor Wamuru highlighted that this was a serious case that had a lot of aggravating factors. The following aggravating factors were highlighted in his submission.
    
    1. The Offender was driving a motor vehicle which was alleged to have been stolen by him.
    2. He was driving at a high speed.
    100. He was under the influence of alcohol.
    4. He crashed into another vehicle a Toyota Land Cruiser 5 Door
    5. He was unlicensed
       
21. Sergeant Wamuru further submitted that the Offender had spent some time in custody at Bomana for being drunk. This is also in the antecedent report. When asked if this was true, the Offender confirmed this and said he had spent 3 months in Bomana.
    
22. The Offender in reply said that the car he drove bumped into a company vehicle and its driver ran away leaving it behind. He and some other boys helped the Police to move the car onto the side of the road. He waited five days for the owner to turn up and pick his car but he did not so he drove the car to his street. The car remained at his street for another three days. There was no fuel in the car so he went to get fuel and, on his way back, he met the owner of the vehicle and his relatives. He got scared and sped away and bumped into the Toyota Land Cruiser.
    
23. The Prosecutor in reply said that Offender may have been coached in his response. There are many so called prisoners in Bomana who tend to give advice like lawyers.
    
24. Having considered submissions by the Prosecutions and the Offender, I now make the following findings. The reply by the Offender varies drastically from the summary of facts he pleaded guilty to. The summary of facts showed that he was drunk and stole a motor vehicle, driving it at high speed without a valid driver’s license. All of this was read to him in his preferred language of tok pisin on arraignment. When asked if he understood the facts, he said yes he did. When asked if he agreed to them, he said yes. This was all done in the presence of his Lawyer then who confirmed his client’s plea as consistent with his instructions.
    
25. Where has he come up with this new story? No explanation was given. Can this be used to vacate his guilty plea and go to trial? No. Simply because I cannot see any valid defence being raised in this new story. He still drove a motor vehicle negligently and without a valid driver’s license. I will therefor proceed with sentencing.
    

What is the proper Starting Point?

26. In many National Court and District Court cases, the proper starting points for any given offences where an offender had pleaded guilty is the midpoint of the penalty. Some of these cases include State v Mavung [2012] PGNC 255; N4898; Police v Koim [2022] PGDC 6; DC8003; Police v Kops [2022] PGDC 7; DC8004 and Bate v Nea [2021] PGDC 165; DC7023.
    
27. Given the above, I find that the starting point for penalties for both Offence’s is their midpoint which is K1250. From there, I will, depending on the circumstances of each case work my way up or down.
    

What sentences have been imposed for similar offences?

28. Case law on the offence of Driving without being Licensed is quite scarce. In Police v Paua [2021] PGDC 102; DC6055, the Court imposed a fine of K500 after finding that the mitigating factors outweighed the aggravating factors. This approach was adopted and applied in Police v Kops (supra) and a K500 fine was imposed.
    
29. Penalties imposed in cases for Driving Without Due Care and Attention have varied from case to case. In Police v Koim (supra) the Offender who was drunk and caused an accident was fined K1500. In Police v Titus [2021] PGDC 184; DC7039, the Offender who is a Police Officer was drunk and driving an unregistered vehicle, caused an accident. He was fined K1250.
    

What is the appropriate sentence?

30. To find the appropriate sentence, I will consider the mitigating factors and the aggravating factors.
    
31. The Mitigating factors are that:
    
    1. He pleaded guilty on arraignment thus not wasting the Court’s time.
    2. He expressed remorse.
       
32. The Aggravating factors are:
    
    1. He was driving a motor vehicle which is believed to have been stolen by him at that time.
    2. He was under the influence of alcohol.
    100. He was driving at a high speed and caused an accident by bumping into another vehicle.
    4. He has a prior conviction which is alcohol related.
    5. He did not have a valid driver’s licence on him when driving the vehicle.
       
33. The aggravating factors in this case outnumber the mitigating factors five to two. The circumstance surrounding the case are very serious as well. Here the Offender was driving a stolen motor vehicle in a reckless and dangerous manner and caused an accident. Adding on to that is the fact he was drunk whilst driving and had a prior conviction against him for being drunk and disorderly in a public place. It seems that the Offender has not learnt his lesson.
    
34. I agree with submissions by the Prosecution that a custodial term of sentence should be given to the Defendant. This form of punishment will help him to reflect on his actions and will act as a deterrent for him. However, I must also point out that the penalty provisions under the Road (Offences & Penalties Regulation) Act 2017 does not provide for any form custodial sentence. It simply provides for payments of infringement fees and fines.
    
35. So how do we deal with the offender in this instance? I turn to Section 201 of the District Court Act. Section 201 of the DCA reads as follows:
    

“201. SCALE OF IMPRISONMENT FOR NON-PAYMENT OF MONEY.

(1) Where–

(a) under this Act or any other law, the payment of–

(i) a fine; or

(ii) costs,

adjudged to be paid by a conviction, is authorized to be enforced by imprisonment; and

(b) a term of imprisonment is not prescribed by the law authorizing the making of the conviction,

the imprisonment shall be for such period, not exceeding the maximum specified in Subsection (2), as the Court thinks fit.

(2) Imprisonment imposed under Subsection (1) shall not exceed the maximum period fixed by the following scale:–

where the sum adjudged to be paid, including costs– The period shall not exceed–

Does not exceed K50.00 14 days

Exceeds K50.00 but does not exceed K200.00 28 days

Exceeds K200.00 60 days.”

36. Section 201 provides the necessary foundation for the Court to impose a term of imprisonment in circumstances where the Offender cannot settle fines imposed by the Court. This Section allows for the Court to impose a term of imprisonment where it has not been prescribed by the law authorising the making of the conviction. The maximum term for imprisonment under Section 201 is only 60 days where a fine of more than K200 has been imposed.
    
37. Considering the discussions above, I find that the appropriate sentence for each of the offences would be;
    
    1. Driving without Due Care and Attention – K1500 fine
    2. Driving without being licensed – K500 fine
    100. The Offender shall be released from custody immediately upon full payment of the Court fines or shall remain in custody at Bomana for 60 days as part of his conviction and shall be released immediately after the expiry of 60 days or whichever occurs first.
    4. Any time spent in custody shall be deducted.
       

CONCLUSION

38. The Offender after having been found guilty of Driving without Due Care and Attention and Driving Without License is fined K1500 for the first offence and K500 for the second off the two offences. A total of K2000. Failure to pay the Court fine will result in the Offender serving 60 days at the Bomana Gaol with the pre-sentence period deducted.
    

COURT ORDERS

39. I therefore make the following orders;
    
    1. The Offender is fined K1500 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 Regulations – Road User Rules 2017.
       
    2. The Offender is fined K500 after having pleaded guilty and convicted of the charge of Driving without Being Licensed under section 7 (a) of the Road Traffic Regulations- Licensing of Drivers 2017.
       
    100. The Offender shall be released from custody immediately upon full payment of the Court fines or is to remain in custody as follows:
         

Lawyer for the Informant: Police Prosecutions
Lawyer for the Offender: In Person