DC8004
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS TRAFFIC JURISDICTION]
WTC No 13-14 of 2022
BETWEEN
THE POLICE
Informant

AND
ENOCH KOPS
Defendant

Waigani: O Ore Magistrate 

2022:  12th, 18th & 25th January 2022
             

TRAFFIC OFFENCE – Careless and Negligent Driving – s40(1) – Road Traffic Act 2014 - Driving Without Due Care and Attention – s 28(2) (a) – Road Traffic Rules- Road User Rules 2017

TRAFFIC OFFENCE- Sentencing – Plea of Guilty on both charges – Discretion of Court to impose appropriate penalty – Consideration of Mitigating and Aggravating Factors – fine of K1000 for Offence of Careless and Negligent Driving – Fine of K500 for Driving without Due Care and Attention – Total of K1500 fine – Suspended with Conditions

PNG Cases Cited

Seal (PNG) Pty Ltd v Superintendent of Motor Traffic [1997] PGNC 141; N1638 (24 October 1997)
Police v Pepna Kepa [2020] PGDC 24; DC4080
Police v Paua [2021] PGDC 102; DC6055

Overseas Cases

Nil

References

Legislation

Road Traffic Act 2017
Road (Offences & Penalties Regulation) Act 2017
Road Traffic Rules – Licensing of Drivers 2017

Counsel
Bigam E, for the Informant 
The Defendant in Person
RULING ON SENTENCE
25th January 2022

1.	O Ore, Magistrate: The Offender Enoch Kops was arrested and charged for Careless and Negligent Driving under Section 40(1) of the Road Traffic Act 2014 and Driving Without Being Licensed under Section 7 (a) of the Road Traffic Regulation – Licensing of Drivers 2017. 

2.	He appeared on 12th January 2021 and pleaded guilty to both offences. The matter was adjourned to today for ruling after submissions were made on sentence on the 18th of January 2021.

FACTS

3.	The offender accepted and pleaded guilty to the following facts.

4.	On Wednesday 05th January 2022, the offender was at Waigani 2 Fast Motors car park driving a Toyota Land Cruiser – 4 Door Registration Number BGI 490. 

5.	The offender reversed the vehicle whilst he did not have a license or permit to do that. He even moved the vehicle to the parking area and in that motion, the Toyota Land Cruiser bumped into another vehicle that was parked at the car park. The vehicle was a Toyota Harrier bearing the registration number BGH 390.

6.	The back bumper of the Toyota Land Cruiser hit the front of the Toyota Harrier resulting in damages of K5280.00 as per a quote from 2 Fast Motors. 

7.	The Offender was brought to the Police Station at 7-mile airport. There the offence was explained to him, he was told of his rights and he was formally arrested and brough to Gordons Police station for detention. 

ANTECEDENT REPORT 

8.	The offender is a 22-year-old male from Monokam Village, Kompiam Ambum District in Enga Province. He is single, unemployed and does not have any prior convictions.

ALLOCUTUS

9.	On allocutus, the offender said that he did not mean to cause the accident. He says that the vehicle itself reversed and he applied the brakes but it was too late. He says that he is from the village and has no way to see his family. He said sorry and he is wrong.

ISSUE

10.	The issue before this Court is what sort of punishment should be imposed on the Defendant.

RELEVANT LAW

11.	Section 40 (1) of the Road Traffic Act 2014 provides for the Offence and Penalty for Careless and Negligent Driving. Under this section, the penalty is a fine not exceeding K6000.00. Section 40(1) is in the following words:

“(1) A person who drives a motor vehicle in a careless or negligent manner on a public street is guilty of an offence.

Penalty: A fine not exceeding K6,000.00.”

12.	Unlike the above offence, the penalty for the offence of Driving Without Being Licensed under Section 7 (a) of the Road Traffic Regulation – Licensing of Drivers 2017 is provided for under Schedule 1 of the Road (Offences & Penalties Regulation) Act 2017 and carries a maximum penalty of K2500 as fine and an infringement fee of K500

SENTENCING

13.	The Prosecution through Sergeant Bigam filed written submissions. Sergeant Bigam submits that in considering sentencing, the Court should consider, Public Interest, the need for education, the need for prevention and the need for deterrence. He also further submitted that both offences were becoming prevalent in society. He left it to the Court to decide on an appropriate penalty taking into consideration the mitigating and aggravating factors. 

14.	I uphold the submission by Prosecutor Sergeant Bigam that sentencing remains at the discretion of the Court. Such discretion should be exercised objectively and in consideration of the background of each case.

15.	In reply, the Offender said that he did not drive on the road but on the car park. He said that he was learning to drive. He asked the Court to impose a suspended sentence because he was a first-time offender from the village and also that he has no means to settle any fine handed down by the Court.

16.	The Offender’s argument that he did not drive on a public street but on a carpark seems to raise a valid defence and warrant a change of plea from guilty to not guilty. However, the definition of a public road is not limited to highways or roads only. As per the case of Seal (PNG) Pty Ltd v Superintendent of Motor Traffic [1997] PGNC 141; N1638 (24 October 1997), “it may extend to areas where entry is dependent on a fee; a road limited only to invitees of the owner”.

17.	Driving in a parking area upon the invitation of the owner is the same as driving on a public road. Here, the car park where the offences had occurred was a place where a lot of vehicles would drive in, park and after doing their business, leave. Thus, there was a duty on all drivers of vehicles to drive carefully when attempting to park their vehicles or drive out. Thus, because of the above reason, I am minded not to vacate the guilty plea but instead proceed on with sentencing.

What is the proper Starting Point?

18.	In Police v Pepna Kepa [2020] PGDC 24; DC4080, His Worship Magistrate Tanei held that the starting point for a prisoner who pleaded guilty to Careless and Negligent driving under section 40 (1) of the RTA is the midpoint of the maximum penalty. I adopt this approach and find that the proper starting point is K3000 which is the midpoint.

19.	For the offence of Driving with being Licensed, I adopt the approach taken above and find the proper starting point to be K1250 which is the midpoint. 

What sentences have been imposed for similar offences?

20.	There are not many reported cases on Careless and Negligent Driving. In fact, on my research, I managed to find one case that dealt with the punishment for such an offence. In Police v Kepa (supra), the Court imposed a fine of K3000 taking into consideration the mitigating and aggravating factors. In that case, both mitigating and aggravating factors were levelled against each other.

21.	For Driving without being Licensed, there are also not many cases reported as well.  Again, I found only one case that dealt with the issue of sentencing for the offence. In Police v Paua [2021] PGDC 102; DC6055, His Worship Magistrate Paul Puri Nii considered the mitigating and aggravating factors and imposed a fine of K500 since the mitigating factors outweighed the aggravating factors.

What is the appropriate sentence?

22.	To find the appropriate sentence, I will consider the mitigating factors and the aggravating factors.  

23.	The Mitigating factors are that:

a.	He pleaded guilty on arraignment thus not wasting the Court’s time.
b.	He is a first-time offender.
c.	He expressed genuine remorse.

24.	The Aggravating factors are:

a.	He did not know how to drive and was learning at that time.
b.	He was also unlicensed at the time of committing the offence.

25.	It is clear that the mitigating factors outweigh the aggravating factors. I point out that the Offender on his first appearance was truthful and remorseful and pleaded guilty straight after arraignment saving the Court time.

26.	I agree with submissions by the Prosecution that these types of offences are becoming prevalent in society and a suitable punishment should be imposed to deter the offender and other persons from committing such offences. 

27.	I also note that the prosecutions did not object to the Offender’s submission for the sentence to be suspended. They have left it to the Court to decide which I find to me is inappropriate as I would have preferred submissions on a desired penalty by them. Nevertheless, I now use my discretion to make my ruling on sentence.

28.	I find that the appropriate sentence for each of the offences would be;

a.	Careless and Negligent Driving – K1000 fine
b.	Driving without being licensed – K500 fine

29.	A total of K1500 Court fine for both offences.

Should all or part of the sentence be suspended?

30.	The Offender is a first-time offender. He is young and from the village. From the time of his arrest and for the duration of this proceeding, he has been appearing from custody despite being granted police bail. His has no communication with his relatives and has been cut off from them since his arrest and detention.  He has no means of settling the fines handed down by this Court. 

31.	It is therefore my view that all of the fines be suspended with the Offender placed on good behaviour bond with strict conditions.

CONCLUSION

32.	The Offender after having been found guilty of Careless and Negligent Driving and Driving Without License is fined K1000 for the first offence and K500 for the second off the two offences. A total of K1500. I fully suspend the penalties considering he is a first-time offender and also that he has no means to pay the fine.

COURT ORDERS

33.	I therefore make the following orders;

a.	The Offender is fined K1000 after having pleaded guilty and convicted of the charge of Careless and Negligent Driving under section 40 (1) of the Road Traffic Act 2014.

b.	The Offender is fined K500 after having pleaded guilty and convicted of the charge of Driving without Being Licensed under section 7 (a) of the Road Traffic Rules- Licensing of Drivers 2017.

c.	Whole of the sentence is suspended with the Defendant put on Good Behaviour Bond for 3 months with the following conditions:

i.	The Offender is barred from consuming any dangerous drugs or any form of alcohol for the duration of 3 months.
ii.	The Offender shall attend his local church on Saturday or Sunday whichever day he prefers.
iii.	The Offender shall in consultation with the Police Prosecutor and the Probation Officer do one day of community service every week for the next three months.
iv.	Whilst on good behaviour bond, the Offender shall not recommit or commit any other offence until expiry of these orders 3 months from now on 25th April 2022.
v.	In breach of the Orders of the Court, the Offender shall be arrested and brought before the Court and if found guilty, shall be committed to Bomana Prison for 3 months in hard labour.

d.	The Offender shall be released from custody immediately to serve his sentence.
 
Lawyer for the Informant  		Police Prosecutions 
Lawyer for the Offender: 		In Person