DC4005
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL JURISDICTION]

Cr.34 of 2018

THE POLICE

Informant

AND

JOHN MONG WII

Defendant

Goroka, P Kaumba, Magistrate

2018: February 8,13

CRIMINAL:

Cases Cited:
Nil

References:
Nil

Counsel:
	
Lawyer for the Informant, Police Prosecutor,Senior Constable Jasanafi

Lawyer for the Defendant, In person.

13th February, 2018

DECISION

P KAUMBA, Magistrate:Onthe 8th of February 2018 the Defendant was taken into custody by police and was charged for driving a Motor Vehicle 25 Seater Coaster PMV bus Registration No PI345K without due care and attention and causing damage to a company vehicle owned by China Wu Yi Co Ltd under section 17(2) of the Motor Traffic Act(MTA). The accused pleaded guilty to the charge and was convicted and was released on own recognizance bail because he advised the court that he gave of K300.00  to police as bail and he slept with the policemen at Henganofi and came to court and I directed the prosecutor to confirm bail and report to court and adjourned the case to the 13th of February 2018 for sentence.

1.	STATEMENT OF FACTS

‘’On the 14th of December 2017 about 300pm to 400pm the Defendant namely John Mong Wii left Goroka for Madang when at KintunuOkuk Highway drive without due care and attention.

It is alleged that at the time driver was driving on the left side of KintinuOkuk Highway. At that very moment the offender experiencedhis brake fail and the PMV Bus gain speed. Defendant suddenly bumped into the upcoming China WuYi Co Ltd company vehicle Registration No EAA 876 on the drivers right side door(See quat).

When the Defendant realised that he was at fault he reverse back and further drive on but brake fail again so they had to stop put the stones to tyres to stop the vehicle.

On the second incident brake failed again and passengers jumped off the vehicle(PMV bus) and fled for their lives.

During the course of the incident, female passenger when flee for her lives received injuries onto her body.

Defendant was at large until now he is brought before court’’.

ANTECEDENT REPORT

2.	The offender is married to five wives and 12 children. He is the driver of his brother who owns the bus. No prior convictions.

COURT PROCESS &ARRAIGNMENT

3.	On arraignment the offender pleaded guilty to the charge.

4.	The offender pleaded guilty the charge and the statement of facts and the court can extract relevant information from the statement of facts and the charge(s) for the purposes of sentencing(State-vs-SabarinaYakal(1988-1989)PNGLR 129).

STATEMENTS OF FACTS

5	The Statement of facts was read to the defendantand the Defendant had not much dispute about the facts and confirmed the same so I confirmed his plea of guilty and convicted him on his charge.

ALLOCUTUS STATEMENT

6	In his allocutusstatement the offendersaid he is a first time offender and when he was told to bail out he gave K600.00 to police at Henganofi. He slept with the policemen who got his money and came to court. He didnot showany remorse for his actions or inaction.

7	 ISSUE: 

What is the appropriate penalty for the offender considering the gravity of the offence, the conduct of the defendant in court, the view and interest of the community and the history of the offender, his family background, other relevant factors like public policy, and sentencing trends in our society on this kind of offences?.

SUBMISSION BY POLICE

8	Senior Constable Jasanafa submitted that the court should consider compensation to the victim/complainant in sentencing and tendered a quotation to court.

OTHER MATTERS OF FACT

9	The offender pleaded guilty, he will be given the benefit of doubt in having all facts in the police statement of fact, his statement on arraignment and allocutus, antecedent report and submission by police and other facts made in court that are not contested will be taken into account in sentencing(SaperusYalibakup-vs- The State(2006) SCRA No 52 of 2005).

SENTENCING PROCESS

10	The sentencing process used by Canning’s J in the case of State -v-Raka Benson(2006)CR447& 450  is the good guide and that is what I intend to use here.

a.	MAXIMUM PENALTY FOR THE OFFENCE

MOTOR TRAFFIC ACT(MTA)

11	Dangerous driving and negligent driving.

(1)	A person who drives a motor vehicle on a public street negligently, furiously or recklessly, or at a speed or in a manner that is dangerous to the public is guilty of an offence.
Penalty: A fine of not less than K15.00 and not exceeding K200.00 or imprisonment not exceeding six months or both.

(2)	A person who drives on a public street without due care and attention and without reasonable consideration for other road users is guilty of an offence.

Penalty a fine not exceeding K500.00

       The offender was charged under section 17(2) of MTA and maximum 
penalty is a fine of K500.00.

b.	STARING POINT.
I will use K250.00 fine as the starting point.

	c. SENTENCING TREND AND GUIDES.
 (i)	Trend.
I have been unable to obtain statistics for these kind offences due to the fact that I set the date of decision in advance and time has caught up with me. Furthermore the offender is from Jiwaka Province and he has to go home. Delayed justice will not be good for him and his family and I cannot delay this Traffic case so I have to make decision based on the facts before me.

 (ii) 	Guidelines.
  The highest penalty should be reserved for offences with 
higher degree of seriousness or worst type of offences(State –vs- Michael K Mani(21/05/2002) N2246 but that does not mean that highest penalty cannot be imposed. Courts can impose the highest penalty if circumstances andgravity of the offence requires and if the court is of the view that theinterest of the public requires it to give higher penalty to the offender to punish him and to deter potential offenders in thesociety to takeheed ofits decision and conduct their affairsand/or businesses in compliance with law of our beloved country of thousand tribes and languages. Guilty plea and first timeare factors that will act as mitigating factor to mitigate the penalty to bring it below the starting point(State-v-Mani supra).Prevalence of the offence will be aggravating factor to bring the penalty up and above the  starting point depending factors in mitigation and  aggravation(State –vs-Mani supra).

d.	CIRCUMSTANCES IN WHICH OFFENCE WAS COMMITTED.
See statement of fact(supra)

(1)	MITIGATING FACTORS.
i.	Guilty plea making work of the police and the courts easy.

(2)	AGGRAVATING FACTORS

                                        i. 	Driving not roadworthy PMV vehicle that is vehicle 
	with faulty brake pads.
                                        ii. 	Damage was done to victim vehicle value of damage 
	to the tune of K20,572,00. One quote only.
			      iii. Driving on the wrong side of the road at the material 
	time carrying a lot of passengers(25).
viThe Driver did not stop and submit to Henganofi
police and drove to Madang and police have to go 
and find him in Madang and bring him to Henganofi
and charge him.

e.	SENTENCING CONSIDERATIONS AND SENTENCE.
The offender is lucky to escape a serious accident because he was driving a not roadworthy vehicle and he was not charged for driving a not roadworthy vehicle on the OkukHighway. Nevertheless the offenders actof driving vehicle with faulty brakes is dangerous to not only to occupants of the vehicle, but also pedestrians, roadside homes and infrastructure and other road users. Hence the aggravating factors far outweigh the mitigating factors. 

Furthermore with a lot accidents on our highway drivers and owners of vehicles have a duty to make sure that their vehicles especially PMV trucksare roadworthy before putting them on the road and in this case the offender was driving vehicle was not roadworthy vehicle, thus punishment and deterrence are determining factors in deciding on the penalty.Hence the offender shall pay K450.00 fine.

In relation to police submission for compensation order, I will leave it to the company to pursue civil suit against the offender and his brother the owner of the bus as first and second defendant because the offender is not the owner of the bus and he cannot be held solely responsible for the damage to the company vehicle.

11.  ORDER

The courts formal order is that the offender is fined K450.00 to be paid forthwith.In default one (1) months imprisonment with hard labour at Bihute Correctional Service.

Counsel:
	
Lawyer for the Informant, Police Prosecutor, Senior Constable Jasanafi
Lawyer for the Defendant, In person.