PNG Law Reports 1994
[1994] PNGLR 53
N1203
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
PUBLIC PROSECUTOR
V
POSOPON SALAIAU
Lorengau
Doherty J
1 September 1993
19 January 1994
CRIMINAL LAW - Sentence - Dangerous driving - Whether period voluntarily spent in custody, even though allowed bail, should be deducted from sentence - Criminal Justice (Sentences) Act 1986.
Facts
Following a trial for dangerous driving causing death, the respondent was convicted and a suspended sentence was imposed. Respondent had been granted bail pending his trial, but for his own safety had elected to remain in custody. The appellant submitted that the period spent in custody should not be deducted from sentence.
Held
1.       Under the Criminal Justice (Sentences) Act 1986, the Court had an unfettered discretion to deduct any period spent remanded in custody from a sentence imposed following conviction.
2.       The time spent in custody, even though voluntary, constituted a deprivation of liberty. Accordingly, the Court took that time into account in determining sentence.
Cases Cited
Gamoga v The State [1981] PNGLR 443.
Counsel
S Madana, for the State.
M Kua, for the respondent.
19 January 1994
DOHERTY J:  This was an appeal by the State alleging insufficiency of 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 (No 19 of 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 of Anna Nakium, a female passenger on the back of a utility that he was driving on 11 December 1992.
There has not been any appeal by the respondent against the finding of the learned Magistrate and, therefore, his findings of fact must stand. An appeal court is normally reluctant to overturn the findings of fact of a court which has 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 off, turn round, and then drive away. This showed him that there was a problem with the gears. He 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 he 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 drive dangerously, for example, under intoxication, at high speed on a crowded highway has been distinguished from what has become referred to as a "heedless" situation. In the precedent Gamoga v The State [1981] PNGLR 443, the Supreme Court drew a 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 facts before me that this was the Gamoga type situation, and sentence would have to be assessed given that situation.
The maximum penalty for this offence is five years in hard labour in the 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 six to nine months would have been more appropriate. This is not on 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 to 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 s 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 the 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 and be released from custody 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 him by 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. I am not able to find a ruling on whether the discretion should be exercised for or against a person when they voluntarily decide not to take the benefit of a bail.
I am aware that in some jurisdictions people allowed bail deliberately do not take the benefit of it because, in those jurisdictions, time in remand is 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 provision 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 court's discretion or oblige the court to take cognizance of people who were allowed bail and those who did not exercise this right.
The respondent was in custody in connection with this offence. I think, in the circumstances, it is a situation 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 Court's discretion in favour of the respondent, because he, in fact, was deprived of his liberty.
I, therefore, notionally sentence him to seven months imprisonment with hard labour, a period between six and nine, which I have said is appropriate. I deduct the period in remand and I, therefore, impose no further custodial sentence on him.
Lawyer for the State: Public Prosecutor.
Lawyer for the respondent: Public Solicitor.