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State v Lau [1990] PGNC 107; [1990] PNGLR 191; N863 (1 June 1990)

N863

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

KENNY LAU

Waigani
Brown J

6 April 1990
June 1990

CRIMINAL LAW - Sentencing - Particular offences - Driving offences - Dangerous driving causing grievous bodily harm - When dealt with summarily - Magistrate’s powers limited to Sch 2 sentence - No power to disqualify from driving - Whether "convicted on indictment" - Criminal Code (Ch No 262), ss 19, 330(2), 420, Sch 2.

The Criminal Code (Ch No 262), s 420, enables the indictable offence of dangerous driving of a motor vehicle causing grievous bodily harm contrary to s 328(5) of the Code to be dealt with summarily by a Grade V magistrate who may, under Sch 2 to the Code, impose a maximum period of imprisonment of four years.

The Criminal Code, s 330(2), provides that where a person is "convicted on indictment" of an offence in connection with a motor vehicle, the court may impose a penalty of suspension of or disqualification from obtaining a driver’s licence.

Held

A Grade V magistrate, when dealing summarily with the offence of dangerous driving causing grievous bodily harm, can only impose the penalty prescribed by Sch 2 (or discharge the offender on a good behaviour bond under s 19 of the Code): the magistrate is not empowered to exercise the provisions of s 330(2) to disqualify the offender from driving.

Appeal

This was an appeal from the sentence of a District Court Grade V magistrate for the offence of dangerous driving causing grievous bodily harm.

Counsel

M M Gene, for the appellant.
J H Pambel, for the respondent.
Cur adv vult

June 1990

BROWN J: This is an appeal from a decision of a Grade V magistrate, sitting as a District Court at Port Moresby on 25 October 1989. The appellant was convicted, having pleaded guilty, of the offence of dangerous driving causing grievous bodily harm, contrary to s 328(5) of the Criminal Code (Ch No 262). The court imposed penalties including imprisonment for a period of eight months (suspended). In addition, the court further ordered that the appellant’s driving licence be suspended for a period of 11 months as from 25 October 1989 and he was disqualified from holding or obtaining any driving licence or permit for that period.

The appeal is against the magistrate’s order in relation to his driving licence.

Section 328(5) of the Criminal Code provides:

"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 5 years."

The Grade V magistrate dealt with the offence under the enabling provisions of s 420 of the Criminal Code, a section which has had some legislative attention. The present section forms part of subdivision VI and came into being on the commencement of the Criminal Code (Amendment No 2) Act 1986 on 14 April 1986, (having been certified and gazetted on 24 April 1986):

"420. Indictable Offences that may be dealt with Summarily.

(1) When a person is charged before a District Court constituted by a Magistrate Grade V with an offence specified in Schedule 2, the Court may deal with the charge summarily according to the procedures set out in Section 421.

(2) Subject to Section 421(4) where:

(a) a charge for an offence is dealt with under sub-section 1; and

(b) the maximum penalty provided in this Code for that offence is imprisonment for a term exceeding 10 years,

the maximum penalty which may be imposed by a Magistrate Grade V is, imprisonment for a term not exceeding 10 years notwithstanding anything to the contrary in this Code."

The reference in subs 1 to Sch 2 may cause confusion for, on a perusal of Chalmers Weisbrot and Andrew Criminal Law and Practice of Papua New Guinea (2nd ed, 1985) a Sch 1a — Indictable Offences Triable Summarily — is included at 678. On a reading of the authors’ introductory remarks dealing with the Code at 239, the confusion is compounded, for the authors say that Sch 1a lists the maximum period of imprisonment for each offence. But in fact it is Sch 2 (inserted by the Criminal Code (Indictable Offences) Act 1980), which specifies the maximum period of imprisonment which a Grade V magistrate may impose. That Sch 2 is prepared for inclusion as at 1 January 1982 and is found in the Revised Laws of Papua New Guinea as a Schedule to the Criminal Code (Ch No 262).

So far as this appeal is concerned, the relevant part is as follows:

Schedule 2 (added by No 28 of 1986, s 6)

Section 420 — Indictable Offences Triable Summarily

Code Sect No Brief description of offence Maximum period of imprisonment under Code Maximum period of imprisonment if dealt with summarily

I should reiterate that s 1 — interpretation — of the Criminal Code says "indictment" means a written charge preferred against that accused person in order to his trial before some court other than a court of summary jurisdiction.

The Grade V magistrate was within his powers in relation to penalty, when he imposed the sentence of eight months imprisonment since the penalty is within the maximum provided by the last column of Sch 2 and, does not exceed the ceiling prescribed by s 420(2).

The question however, is whether the magistrate has power to impose a penalty of suspension when he disqualified the appellant from holding or obtaining any driving licence for a period of 11 months.

The Criminal Code, s 330(2), provides:

"16(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."

Clearly this is a "penalty" provision. As such the magistrate may only impose such penalty if so provided for by s 420, his only source of power to deal with this offence of "dangerous driving". Schedule 2 prescribes the penalty. Section 19 enables the magistrate on summary conviction to discharge an offender on his entering into a recognisance on terms to keep the peace and to be of good behaviour. But there is no other penalty prescribed by the Sch 2 and consequently, as a matter of law, the Grade V magistrate cannot impose any other. That part of the sentence purporting to disqualify the appellant from holding a licence is void ab initio.

There has been no "conviction on indictment", a prerequisite in s 330(2) before the further penalty can be imposed. The magistrate’s powers to embark on the hearing of an indictable offence is found only in s 420. Having convicted the only penalty available is that prescribed by Sch 2. It is erroneous to consider, as has happened here, that the power to embark on the hearing carries with it the power to apply penalties generally available. The statutory limitation on Grade V magistrate’s powers is found in s 420 read with Sch 2.

That disposes of the argument but I sound a cautionary note. If pursuant to s 420(4) (procedure) the Grade V magistrate commits an offender to the National Court for sentence, there has been a conviction recorded. In that case, again, there has been no conviction "on indictment" and it will not be available to the National Court to apply the provisions of s 330(2) and disqualify the offender from driving, although the National Court may exercise greater powers of imprisonment. In such a case, an offender should be committed for trial in the National Court, if disqualification from driving on conviction under s 328(5) were considered appropriate.

The appeal is allowed, the order suspending the appellant’s licence for a period of 11 months and, disqualifying him from holding or obtaining any driving licence or permit for that period is quashed. I make no order as to costs.

Appeal allowed

______________

Solicitor for the appellant: Public Solicitor.
Solicitor for the respondent: Public Prosecutor.