DC2030

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

DTR 204/2011

BETWEEN

POLICE
Informant

AND

MAX GIYO
Defendant

Madang: J.Kaumi
2011:27th July

SUMMARY: Offence – Summary Traffic offence-Motor Traffic Act Chapter 243, Part V, OFFENCES-Division 1-Offences Generally-Section 18 subsection (a) Driving under the Influence.

PRACTISE AND PROCEDURE-Sentence-One count of Driving under the Influence- Motor Traffic Act Chapter 243, Part V, OFFENCES-Division 1-Offences Generally-Section 18 subsection (a) – Plea of Guilt – Sentencing Guidelines – Mitigating and Aggravating Factors – Expression of Remorse – Prevalent Offence – Need for Deterrence.

A man pleaded to driving under the Influence of Intoxicating liquor and matter for sentence

 Held:

 (1).This is a case of a driver who not only knew what he was doing but knew that what he was doing was wrong and this category of persons such as this defendant are a great danger to other road users, pedestrians and the community at large if for one reason, the fact that they quite deliberately set out to break the law and this is a strong aggravating factor. 

Cases cited

Acting Public Prosecutor Sc 564
State v Michael Kamban Mani (21/05/02) N2246
Saperus Yalibakut SCRA No.52 of 2005(27/04/06)
State v Raka Benson (2006) CR 447 & 450
Waingal v Kare DC 654 (9 May 2008)
Police v Bagisa Willie DTR 52/2010
Police v Richard Tangoi DTR 74/2010
Police v William Ulamai DTR 76/2010
Police v Robby George DTR 122/2010
Police v Casper Manu DTR 127/2010
Police v Terence Bokori DTR 129/2010
Police v Steven Sand DTR 145/2010
Police v Quinton Tupa DTR 192/2010
Police v Robert Mugaung DTR 205/2010

Legislation

Motor Traffic Act Chapter 243

Abbreviations

The following abbreviations appear in the judgment
Cht Chapter
DC District Court
DTR District Traffic
I/D In Default
IHL Imprisonment with Hard Labour
J Justice
K Kina
M Magistrate
MTA Motor Traffic Act 
N National Court
NRL National Rugby League
SC Supreme Court
SCRA Supreme Court Reference
S/C Senior Constable
ST State
V Versus

Counsel

Senior Constable Walter Watakapura; for the informant
Defendant in person.

27th July 2011.

INTRODUCTION

1. Kaumi. M. The defendant is charged with one count of driving under the influence of liquor contrary to Section 18(a) of the Motor Traffic Act.

CONVICTION

2. The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then after reading the Summary of Facts confirmed the pleas and convicted him as charged

3. He was convicted of one count of driving under the influence of liquor.

FACTS

4. The agreed relevant facts upon which I will proceed to sentence you are as followed: 

(i). That on Monday 06th of June 2011, around 3:00 p.m. at South Coast Highway then along the Modilon Road, the defendant was the driver of a motor vehicle towit, a blue 15 seater Mazda Ford bus registration no. P0769E and six others in the bus after consuming beer.

(ii). Police were returning from attending a motor traffic accident along the South Coast Highway and whilst having a break just before the Gum bridge witnessed the motor vehicle driven by the defendant driving on the said road and gave chase and caught the defendant in Madang Town between the Ho Kit shop and the Best Buy Trading Stores. 

(iii). The defendant and the other occupants of the vehicle he was driving were ordered to come out of the said vehicle and when they did it became apparent that they were very drunk. Their eyes were sleepy and their breaths smelt strongly of liquor that clearly indicated that the defendant was driving the said motor vehicle on the public road whilst under the influence of intoxicating liquor.

(iv). Defendant and the other occupants of the vehicle he was driving were arrested, informed in a language they understood and locked up in the cell to sober up. After six (6) hours they were all taken out and was arrested and laid charges against them and were all informed of their constitutional rights and locked in the cell and later all released on K200.00 on bail. The defendant was charged with driving whilst under the influence of intoxicating liquor.

ANTECEDENTS

5. Your Antecedent Report provided to Court is as follows;-

(i). The defendant is married with five children and self-employed as a driver;

(ii). He resides with his family in his village of Igos, Bogia District, Madang. 

(iii). He has no prior convictions.

ALLOCATUS 

6. I administered the allocatus to the defendant where he was given the opportunity to address the Court on what matters the court should take into account when deciding on punishment and in his address on the sentence, the defendant said the following and a paraphrased summary of his response follows:

(i). I have been driving for a long time and own two motor vehicles and I have a licence;

(ii). I have not been charged with a traffic offence before;

(iii ). I ask for the leniency of the court;

(iv). I promise in this court not to drive whilst under the influence of liquor again.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State , (Jalina J; Mogish J Cannings.J )

SUBMISSIONS BY THE POLICE

8. S/C Watakapura did not make any submission other than to leave the sentence to the discretion of the court. 

ISSUE

9. These submissions give rise to only one issue for this Court to determine and that is, what the appropriate sentence is in your case.

DECISION MAKING PROCESS

10. To determine the appropriate sentence I will adopt Canning’s. J’s decision making process in The St v Raka Benson  and that is;-

Step 1: what is the maximum penalty prescribed by Parliament?

Step 2: what is a proper starting point?

Step 3: what are the type of sentencing guidelines and trends per judgments for this type of offence?

Step 4: what are the particular circumstances in which you committed this offence from which come the factors in your aggravation as well as those in your mitigation?

Step 5: what is the starting point for the Head sentence for the offence?

Step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY PRESCRIBED BY PARLIAMENT?

11. The offender has been found guilty of an offence contrary to sect 18(a) of the Motor Traffic Act 1950 Cht 243.

 Section 18. DRIVING UNDER THE INFLUENCE.

[13]A person who, while he is under the influence of intoxicating liquor or a drug–

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

(b) occupies the driving seat of a motor vehicle on a public street and attempts to put the motor vehicle in motion,

is guilty of an offence.

Penalty: [14]For a first offence–a fine not less than K50.00 and not exceeding K300.00 or imprisonment for a term not less than three months and not exceeding 12 months, or both a fine and imprisonment.

For a second or subsequent offence–a fine not less than K400.00 and not exceeding K300.00 or imprisonment for a term not less than six months and not exceeding 12 months, or both a fine and imprisonment.

STEP 2: WHAT IS THE PROPER STARTING POINT?

12. The District Court has imposed sentences for driving under the influence contrary to section 18 (a) of the MTA however I have been unable to locate a suitable precedent in our jurisdiction so I will use the middle of the prescribed penalty of K150:00 and six months for first offenders as the starting point for the offence.

STEP 3: WHAT ARE THE TYPE OF SENTENCING GUIDELINES AND TRENDS PER JUDGEMENT FOR THIS TYPE OF OFFENCE?
SENTENCING TRENDS

13. The sentencing trends can only be positively identified by observing what sentences courts have imposed and this entails being able to access them through reading the sentencing judgments. It is therefore imperative initially for such judgments to be published.

14. Section 18 (a) of the MTA prescribes a penalty not less than K50:00 and not exceeding K300:00 as the penalty for first offenders.

15. I have retrieved the following decisions from the District Court Registry by the Madang District Court in the similar offences were dealt with in the following manner:-

(i). Police v Bagisa Willie  DTR 52/2010 (13/04/10)-Deft fined K300:00 I/D 5months IHL, Licence suspended for a period of six months;

(ii). Police v William Ulamai  DTR 76/2010-Deft fined K160:00 I/D 3monthsIHL, Licence suspended for a period of six months;

(iii). Police v Richard Tangoi  DTR 74/2010-Deft fined K100:00 I/D 2months IHL;

(iv). Police v Casper Manu  DTR 127/2010-Deft fined K100:00 I/D 3months IHL;

(v). Police v Robby George  DTR 122/2010-Deft fined K100:00 I/D 3months IHL;

(vi). Police v Terence Bokari  DTR 129/2010-Deft fined K300:00 I/D 4months IHL;

(vii). Police v Quiton Tupa  DTR 192/2010-Deft fined K100:00 I/D 2months IHL;

(viii). Police v Robert Mangung  DTR 205/2010-Deft fined K50:00 I/D 1month IHL;

(ix). Police v Steven Sand  DTR 145/2010-Deft fined K200:00 I/D 2 months IHL;

(x). In Goroka in the matter of Waingal v Kare  Magistrate Manue-[2008] DC 654 (9 MAY 2008) - fined Deft K300:00 I/D 4months IHL.

16. These cases demonstrate that sentences range from the minimum of K50:00 and as high as the maximum for a worse case category offence. 

SENTENCING GUIDELINES

17. Obviously hundreds of drink driving offences have been dealt with by the courts in our jurisdiction and the absence of their publication means there are no suitable precedents. However given the prevalence of this offence it is only fair to say that despite the imposition of the maximum, it has not had the desired resultant effect of either eradicating its occurrence nor prevalence and I can only say in passing that the penalty provision has outlived its usefulness and is largely irrelevant today. 

18. I am therefore inclined to go higher for guidance and analogy and in doing so adopt as a matter of practice for sentencing guidelines, His Honor Kandakasi. J's guidelines on sentencing in St v Michael Kamban Mani  that the maximum prescribed penalty should not be readily imposed. Secondly, guilty pleas, and the offender being a first time younger offender and the existence of such good factors operate in the offender's mitigation and sentences lower than the prescribed maximum may be imposed. Thirdly, the prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders and fourthly, the kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offence is not lower than these imposed for the less serious offences.

STEP 4: WHAT ARE THE PARTICULAR CIRCUMSTANCES IN WHICH YOU COMMITED THE OFFENCE FROM WHICH COME THE FACTORS IN YOUR AGGRAVATION AS WELL AS THOSE IN YOUR MITIGATION?

19. It is trite case law that the employment of judicial discretion in sentencing must follow principles that are settled and as such I adopt the technique used by Cannings.J in Raka Benson  to highlight the particular circumstances of this case from which will come the aggravating and mitigation factors.

20. These considerations are as follows:

Considerations

(i). Was only a small amount of alcohol involved? No, from the description given by the Traffic police that the defendant and the other occupants of the vehicle he was driving were very drunk. Their eyes were sleepy and their breaths smelt strongly of liquor and this clearly indicates that the defendant had been drinking a large quantity of liquor prior to driving the said motor vehicle on the public road.

(ii). Did the offender's actions have only a small adverse effect on other persons e.g.: the members of his family and his community? No, his actions have had an adverse effect on members of his community in that the passengers on his vehicle were also arrested and his conviction will impact on his family as he is a PMV driver.

(iii). Did the offence take place over a short period and not involved a pre-meditated, cunning plan of deceit? No, however though the offence did not involve a pre-meditated, cunning plan of deceit it took place over a long period of time as the defendant was sighted out of Madang town and had driven in from his village of Igos which is located in the Bogia District.

(iv). Did the offender give himself up before being detected? No, he was detected by the police outside of Madang town and then was pursued all the way to the heart of Madang town where he was apprehended by them. 

(v). Has the defendant pleaded guilty? Yes, he pleaded guilty 

(vi). Has the offender genuinely expressed remorse? Yes, he expressed genuine remorse when given the opportunity to do so. 

(vii). Is this the defendant's first offence? Yes.

(viii). Has the defendant been a good member of his school and the community in which he lives? Neutral, there is no evidence of whether or not he is a good member of his community.

 (ix). Is the defendant a person of good health both physically and mentally? Yes, he was of good health both physically and mentally when he appeared in court. 

(x). Has the offender and his family already paid a heavy price for his actions? Yes, there is .evidence of this. 

(xi). Can the defendant be regarded as a youthful offender? No, he can be regarded as an adult offender.

(xii). Are there any other circumstances of this particular offence or the offender that warrant mitigation of the head sentence? Yes, 

(xiii). Is this offence not a prevalent one? No, it is a most prevalent one in Madang.

(xiv). Do these types of offences not have an adverse effect on the community at large? No, they do have an adverse effect on the community at large.

Rationale

21. The rational behind the above considerations is as follows:-

(i). an affirmative (yes) answer = mitigating factor;

(ii). a negative (no) answer = an aggravating factor;

(iii). a neutral answer = be a neutral factor;

(iv). more mitigating factors = likely reduction of head sentence;

(v). more aggravating factors = likely lifting of head sentence above starting point.

(vi). sentencing is not an exact science rather it is a discretionary process;

(vii). Mitigating factors may be mild or strong and weighed accordingly;

(viii). Aggravating factors may be mild or strong and weighed accordingly. The St v Raka Benson. 

22. In furtherance to (vii) and (viii) it should be noted that not only might ordinary mitigating factors be given less weight than special mitigating factors but then they must be weighed against the circumstances peculiar to a case and this involves considering the gravity of the offence, it prevalence, the time of committing of offence and its maximum penalty. The aggregate result of this juggling act of judicial discretion is a sentence that befits the crime.

23. The above comments on mitigating factors are also applicable in the context of aggravating factors.

24. Obviously going by the above principles a person convicted in a trial of having 10kg of marijuana should be treated differently from a casual user of the drug who pleads guilty to knowingly possessing one half smoked roll or joint of marijuana.

 Categorization of the listed considerations

25. There are three sorts of considerations listed:

(a). Numbers 1 to 3 focuses on the circumstances of the possession of the cannabis.

(b). Number 4 to 7 focus on what the offender has done since he committed the crime and how he has conducted himself.

(c). Number 8 to 14 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

STEP 5: WHAT IS THE STARTING POINT FOR THE HEAD SENTENCE FOR THE OFFENCE?

26. After weighing all these factors and bearing in mind that there are six mitigating factors compared to seven aggravating factors and one neutral factor. 

27. The total potential penalty is K300:00.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. In consideration of whether or not all or part of the head sentence should be suspended I consider some principles of sentencing that are relevant to this issue in the following paragraphs.

29. In Acting Public Prosecutor v. Don Hale , the S C said sentencing is a community responsibility. For the courts exercise a power that belongs to the people by virtue of s. 158 (1) of the Constitution. The S C in that case said ".…The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people". 

30. This is a case of a driver who not knew what he was doing but knew that what he was doing was wrong and persons such as this defendant are a great danger to other road users, pedestrians and the community at large if for one reason and that is the fact that they quite deliberately set out to break the law and this is a strong aggravating factor. This attitude is prevalent in this country and sadly the norm rather than the exception. The National Road Safety Council has lamented the high statistics of road deaths attributing a large percentage of this toll to drunk drivers. The Motor Vehicles Insurance Limited has caused expensive advertisements to be televised on the national television service, 'EM TV' using NRL players in an attempt to educate PNG drivers and therefore it only logical for the courts to "be in touch with the aspirations and attitudes of the people of PNG", and impose sentences that will have a deterrent effect on like-minded drivers by sending the message out that sentences will rise in direct correlation to the rise of such offences. 

31. Weighing the factors for and against you, I note that the aggravating factors out weigh those in your mitigation.

32. The head sentence should not be suspended in whole or in part as the offence is serious as there were also six other persons on the motor vehicle the defendant was driving.

SENTENCE

33. Max Giyo having been found guilty of driving under the influence of intoxicating liquor, you are sentenced in the following manner:

(a.) You are fined K300:00 in default three months imprisonment;

(b). Pursuant to section 35 of the Motor Traffic Act I order that the defendant's licence be suspended for six months and be surrendered to S/C Watakapura forthwith to be kept at the Police Prosecution Office and to be retrieved by the defendant upon the expiration of the suspension period. 

Police Prosecution for the State 
Defendant in Person