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State v Kaiyus [2006] PGDC 28; DC678 (5 June 2006)

DC678

PAPUA NEW GUINEA
[The District Court of Justice]

Case No. 99 of 2006.

THE STATE

v.

PRAISE KAIYUS

Tabubil : P. Monouluk.
2006: 02nd, 23rd, May; 5th June.

Sentencing

Motor Traffic Act – Unlicensed driving – Section 21(1) Motor Traffic Act Chp. 243 – Policeman drove police motor vehicle on public road without driving license – Action not excused by law and circumstances surrounding action.

Sentence – Unlicensed driving – Policeman without good excuse drove police vehicle on public road without driving license – Not the first time defendant has done so – Despite previous warning and reprimand – Defendant has previous conviction – Habitual offender – No extenuating circumstances – Appropriate penalty – Fine and Restriction of movement.

Constable Paul Irie for the State.
Defendant in person.

05th June 2006.

1. P. Monouluk: You have pleaded guilty to one charge of having driven a police motor vehicle whilst being unlicensed thereby contravening Section 21(1) Motor Traffic Act Chp. 243.

2. The statement of facts presented to the court and reaffirmed by you revealed that in the early hours of Thursday 20th April, 2006 you were on duty as a policeman at Tabubil Police Station (on a 12 midnight to 7am shift). Without any explanation you got into a parked police motor vehicle and drove the vehicle away. Other police personnel who saw what happened were not happy and therefore reported the matter which consequently saw you arrested and charged by your own colleagues for having driven a motor vehicle on a public road without being licensed to do so.

3. In your explanation you say that you were called upon to attend to a scene of a motor vehicle accident therefore you had to drive the police motor vehicle even though you knew you had no driving license. Despite your explanation the court went ahead to enter a conviction against you because it is clear under law that your reason for having driven the motor vehicle does not excuse you at all. The State explained that even though you were a duty policeman you were still required by law like anyone else to have a driving license before you can drive a motor vehicle. In any case the State says that the circumstances surrounding the accident was not life-threatening and requires the attendance of traffic police and not you as a general duty policeman. It says further that you did not bother to seek the assistance of the designated duty driver and your own shift supervisor instead you overlooked these officers and opted to drive the motor vehicle yourself.

4. You were then asked to address the court in respect to your sentence. In reply you say that you have given your explanation as to why you have driven the motor vehicle and you now have nothing further to say, and is up to the court to decide. On its part, the State says that you have no excuse at all to drive the motor vehicle on that occasion. As a policeman you fully understand the procedures involved when you receive a report of a motor vehicle accident. Even though you have the appropriate officers available to assist you, you made no attempt to seek their assistance. You knew well that you have no driving license yet you went ahead to drive the motor vehicle.

5. The State added that this not your first time to do such a thing. In early February this year (2006) you were issued a traffic infringement notice for having driven the same police motor vehicle without a driving license. Following a verbal reprimand and your own promise not to re-offend, your superiors decided to slap you with a spot-fine of K50.00.

6. The State says that your appearance in court for this new offence indicates that you have not learnt from your earlier mistake. The State also reminded the court that you have a previous criminal conviction of sexual assault against you. In September 2003 you were sentenced to two years imprisonment for having had sexual intercourse with a female without her consent while you were a duty policeman and she was held as a State prisoner inside Tabubil Police Station cell. Since you have returned from prison you have not changed your ways. You have continued to misbehave and your appearance in court today is a testimony of your continued disrespect for yourself, the uniform you wear and the law.

7. The State says that the court must not be lenient on you but must impose a maximum penalty of a K500.00 court fine on you and in addition to that it must also make a restriction of movement order against you pursuant to Section 205B District Courts Act Chp. 40 since you have a previous conviction and because you are not a Tabubil based policeman. You must return to your original posting at the Lae Police Station which is recognized and approved by the office of the Police Commissioner.

8. In your reply you say that if you are to be ordered to leave Tabubil, Western Province then the court must consider that it may not be viable to have you ordered to leave for your home district of Telefomin, West Sepik Province because there are no police station there. In respect to the State’s point that you be return to your original work posting of Lae, you say that you have nothing to say.

9. I am now left to decide which penalty(s) best suit your crime and its circumstances, however before I do that I wish to highlight the law under which you have been convicted of. The offence of unlicensed driving of a motor vehicle on a public road/street is prescribed for by Section 21(1) Motor Traffic Act Chp. 243 as follows:-

"S. 21 Unlicensed drivers

(1) Subject to this Act, a person who drives a motor vehicle on a public street without being licensed for the purpose is guilty of an offence.

Penalty: A fine of not less than K10.00 and not exceeding K500.00.

(2) Subject to this Act, a person who employs or permits an unlicensed person to drive a motor vehicle on a public street is guilty of an offence.

Penalty: A fine not exceeding K500.00."

10. It is clear from the wording of the charge that, subject to the Motor Traffic Act itself (including the Motor Traffic Regulation), anyone who does not hold a motor vehicle driving license yet drives a motor vehicle on a public road/street is guilty of an offence the penalty of which is a fine up to a maximum of K500.00.

11. Anyone who seeks to drive a motor vehicle whilst being unlicensed can do so if and when allowed by circumstances recognized by the Motor Traffic Act itself. My review of the Act turned up nothing that may give you an excuse to drive the said motor vehicle whilst unlicensed. The closest I got to was the issuance of the driving permit by the police under Section 11 of the Act (supra). Apart from that there is nothing under law. I believe anything else done outside the ambit of the law concerning a motor vehicle has to be made with the authorization of the Superintendent of Motor Traffic through delegated powers as we see of S.11 of the Act (supra).

12. Your excuse of a motor traffic accident to drive the police without license is inexcusable and unjustifiable as far as the law and the circumstances surrounding the events of the date of the offence are concerned. You know well why I say this because those who have been delegated powers to police the Motor Traffic Act had the benefit to deliberate on your excuse to drive whilst unlicensed and found your explanation wanting hence you were arrested and charged by them, and subsequently convicted by this court.

13. I am reminded that the State now seeks from this court an imposition of a maximum court fine of K500.00 and a further order that you return to your designated posting as a Lae Police Station based policeman. The application is made pursuant to Section 205B District Courts Act Chp. 40 which says as follows:-
"S. 205B Restriction of movement

(1) Notwithstanding that restriction of movement is not specified as a punishment for an offence, a District Court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with this section.

(2) When a District Court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.

(3) Where a person is convicted of an offence, the District Court that convicts him may, in addition to or instead of any other punishment that may be imposed, order him—

(a) not to come or be within such part of the country as the District Court specifies; or

(b) to be returned to his home, as specified by the District Court,

during such period, not exceeding five years, as is specified by the court ..."

14. The test to ascertain whether such an order should be imposed is largely based on what the court determines as sufficient circumstances that warrant the imposition of such a penalty. Subsection (2) places a responsibility on any District Court as a mandatory requirement when considering the imposition of penalty(s) on any offender to consider, by itself or with the assistance of the prosecution, whether such an order is appropriate based on the circumstances of the case.

15. The State believes that as a habitual police offender and because you are not designated for Tabubil Police Station you be ordered by the court to return to your original posting which is the Lae Police Station.

16. In your case, you are a serving policeman. On the night of the offence you were on duty when you decided to drive a police motor vehicle. Your excuse for having done so was because a road accident had occurred which you say required your immediate attention. Despite that you never arrived at the scene of the accident. Your conduct was unacceptable based on the assessment of your superiors and after an investigation was concluded you were then arrested, charged and brought before this court for further deliberation.

17. In some instances it can be very difficult and frustrating for obvious reasons to have a policeman arrested and charged when he is in breach of a law. To have you as a policeman before the court to answer to your charge must have been a very painful decision to make by your supervisors to have one of their own prosecuted by themselves. We are reminded that no one is above the law, even policeman like yourself. When a policeman is brought before the court, it reaffirms this notion. The decision by your supervisors to have you before the court must be applauded particularly at a time when the public has formed a negative view of its own police force. We must allow justice to take its course and those who stand accused be given ample opportunity to be heard and respond accordingly to the allegation so raised against them.

18. At this point I am reminded that as a policeman, you have a previous conviction of unlawful sexual assault. On the 05th September, 2003 you were sentenced to two years imprisonment at CIS - Daru for sexually assaulting a female State prisoner inside Tabubil Police Station. After serving almost one year and six months, you were released from prison and returned to Tabubil Police Station to take up normal police duties as a policeman once more.

19. Following submission by the State as to your penalty, I put to the State that you are a convicted policeman and have served time in prison for an offence that has all the right ingredients for a charge of rape and why are you still a policeman. In reply the State say that due to some administrative malfunction within Tabubil Police Station necessary papers were not forwarded to the Police Headquarters in Port Moresby for appropriate actions.

20. This administration foul-up by Tabubil Police Station, whether deliberate or not, is unacceptable. The Police Force Act 1998 makes it explicit under Section 33(2) that a member of the Police Force who is convicted by a court of an offence that involves dishonesty or for which a term of imprisonment is imposed shall be dismissed immediately from the Force (emphasis mine). It is therefore mandatory upon those responsible at Tabubil Police Station to provide all necessary documentation to the Police Headquarters in Port Moresby for appropriate action under the Act (supra). The fact that you are still a policeman since your imprisonment indicates that certain officers at the police station may have conspired to withhold information from your Headquarters in order to retain you as a policeman still despite your conviction and subsequent imprisonment.

21. It is apparent also that because of the withholding of those information concerning your conviction and imprisonment, police records at the Headquarters would have shown that you were serving policeman thus while at CIS - Daru serving two years imprisonment you would have been paid full pay and fed three meals a day – all expenses paid for by the State. I have difficulty comprehending that the Police Force can still pay its police personnel who is doing time in prison. How can this administrative oversight allow you a convicted policeman to still earn full pay in prison for almost two years and later return you to still serve as a policeman in light of Section 33 of the Act (supra). The Police Hierarchy must immediately right this wrong, otherwise its inaction will be seen as unfair to many other police personnel who were terminated under Section 33 (2) Police Force Act 1998. Moreover, it will be a slap in the face of those police personnel who tirelessly serve this nation with dignity and pride while few others like you who see this vocation as a mere pass-time and does everything within their power to bring into disrepute the image of the Police Force.

22. The fact that you are now before court for this new offence, it must be made clear that there is no way you can expect the court to be lenient on you bearing in mind your previous conviction and also your status as a policeman. I would not hesitate to send you to prison again had I be given the opportunity to do so. Under law I can only impose a court fine of up to K500.00 upon your person and impose imprisonment as a default penalty.

23. I believe that the State agents like yourself who live and work in Tabubil in support of this important OK Tedi project must recognize that your role is important in serving the people of this nation through this mining project. We cannot afford to have police personnel who do not take their jobs and responsibilities seriously and do not recognize the importance of this project to the national economy. Any State employee who does not value and appreciate his duty and responsibility to this nation through this project has no place in this community.

24. Based on these consideration, I believe the appropriate penalty for your crime is maximum fine of K500.00 and a further order that you leave Tabubil and the North Fly District, Western Province immediately and to remain away for a period of five years unless circumstances determine otherwise.

Orders accordingly.