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State v Raphael [1978] PGNC 58; [1979] PNGLR 47 (12 March 1978)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 47 - The State v Alphonse Raphael 

[1979] PNGLR 47

N186

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ALPHONSE NAULO RAPHAEL

Madang

Pritchard J

9 March 1978

12 March 1978

CRIMINAL LAW - Sentencing - Principles of - Dangerous driving causing death - Circumstances where more severe penalties called for.

CRIMINAL LAW - Particular offences - Dangerous driving causing death - Circumstances where more severe penalties called for - Deaths of two motor cyclists - Unlicensed driver - Under influence of alcohol - Effective sentence of three years six months - Six year period of disqualification.

The accused, a motor mechanic, a married man with two children and of previous good character, and an unlicensed driver, drove a public motor vehicle knowing it to be defective, and whilst under the influence of alcohol, across the path of a motor cycle, without signalling an intention to turn, and thereby brought about the deaths of two men on the motor bike.

On a plea of guilty to a charge of dangerous driving causing death under s. 336(1) of the Criminal Code, for which a maximum penalty of five years’ imprisonment with hard labour, is provided:

Held

N1>(1)      Because of the prevalence of serious driving offences in Papua New Guinea, sentences for causing death by dangerous driving should be severe, and more severe than those imposed in England.

N1>(2)      In sentencing offenders on charges of dangerous driving, the following factors should be taken into account as aggravating circumstances:

N2>1.       Driving without a licence, on an expired licence, with someone else’s licence or in a vehicle not authorized by a licence in fact held.

N2>2.       Driving an uninsured and unregistered vehicle.

N2>3.       Driving under the influence of alcohol, or whilst drinking alcohol.

N2>4.       Driving a mechanically defective vehicle.

N2>5.       Carrying passengers for money on a vehicle not licenced to carry passengers for reward.

N1>(3)      As a general guide, in sentencing offenders on charges of dangerous driving and driving under the influence:

N2>(a)      if injury is suffered by some person as a result of the offence, it is to be regarded as a serious matter entitling the court to consider gaol as an appropriate penalty;

N2>(b)      if one or more of the factors in (2) above, are present, except drink in a driving under the influence case where it is already an ingredient, the court should consider whether gaol is appropriate;

N2>(c)      if the offender is actually under a period of disqualification imposed by a court, gaol is the appropriate penalty except in the most extraordinary circumstances;

N1>(4)      In the circumstances, the accused should be sentenced to three years two months’ imprisonment with hard labour (taking into account four months in custody pending trial), and disqualified from holding or obtaining a driver’s licence for six years.

Sentence

The accused was charged with and pleaded guilty to a charge of dangerous driving causing death under s. 336(1) of the Criminal Code.

Counsel

K. B. Egan, for the State.

S. Mulina, for the accused.

Cur. adv. vult.

12 March 1978

PRITCHARD J: The accused has pleaded guilty to a charge alleging that on 29th October, 1978, he drove a motor vehicle dangerously thereby causing the death of two men, Francis Naipe and Peter Sunde. The charge is laid under s. 336(1) of the Criminal Code, sub-s. (4) of which provides for a maximum penalty of five years imprisonment with hard labour. Section 338 of the Criminal Code enables the court upon such a conviction to disqualify the offender from holding or obtaining a driver’s licence either absolutely or for such period as the court may specify.

The accused was arraigned upon the allegations that he had turned the public motor vehicle he was driving across the path of an oncoming motor bike ridden by the two deceased, that in doing so he had failed to give right of way before commencing such turn and had failed to keep a proper lookout for traffic travelling in the opposite direction, that the vehicle he was driving was unroadworthy and dangerous in itself as a result and that the accused himself was under the influence of alcohol at the time.

Having read the depositions of the committal proceedings in the District Court and seen the exhibits consisting of records of interview between the police and the accused, together with various photographs and plans, I had no hesitation in accepting his plea of guilty. They disclosed what is in my view, a very bad case indeed.

The accused is a motor mechanic by trade. On the Thursday before the accident he had gone to Bogia on the north coast of Madang to repair a vehicle. He had earned K50 for this and on the Sunday of the accident left Bogia for Madang as a passenger on a P.M.V. He got off at the Plantation Hotel, some twenty miles north of Madang on the coast road. He bought twelve bottles of beer for K10 and drank six of these before being joined by John Okiam, the owner of the P.M.V. which was eventually involved in the accident, his driver Kema Govena and two others named Titus Kari and Francis Bilas. All had driven up from Madang for the day with other passengers, for the Provincial Government celebrations. It is not clear from the depositions how long they all stayed together drinking but it was certainly an affair lasting some three hours or more. It is also not clear how much each person drank but I am satisfied all of them were affected by drink when they left. As for the accused, John Okiam said he did not look drunk, Kema Govena said he was “half-way” drunk and Titus Kari said he was not drunk and not sober, but had vomited at the Plantation Hotel. The accused could not remember how many drinks he had consumed when interviewed by the police next day because as he said “I was drunk”. He admitted spending K30 on beer.

Okiam offered the accused a lift back to Madang on his P.M.V. and with Govena at the wheel the party left, Govena carrying a bottle of beer. At a village called Rempi the vehicle stopped to let off some passengers and here the gears locked. The accused tried to fix the gears. He was able to manipulate first and top gear, but second and third were still locked. In view of this partial success the accused took the wheel for the balance of the journey to Madang. There is some confusion as to why he drove, he claiming the owner forced him, the owner claiming the accused insisted. Whatever the reason the P.M.V. took off. Subsequent mechanical investigation confirmed the difficulties with the gears but also established that the vehicle’s speedometer did not work, it had no tread on its front off-side tyre and what is worse, the driver’s seat was not secured to the floor and was in a dangerous condition. In his record of interview with the police the accused admitted he had never been a licensed driver but had once held a learner’s permit which had expired.

On leaving Rempi, this unroadworthy vehicle, with the unlicensed accused drunk at the wheel, was an accident going somewhere to happen.

And so it turned out to be. When the P.M.V. reached Madang the accused made a right-hand turn in the path of the oncoming motor bike. The motor bike, well on its correct side of the road, collided head on with the P.M.V. striking its bumper bar beneath the lights on the passenger’s side. The rider was killed instantly and his pillion passenger so severely injured he later died in hospital.

The scene on the P.M.V. up to the time of the accident was itself confusing. The accused claimed that on several occasions it had stopped to let passengers off and he had tried to run away but the owner had pulled him back to drive. The accused told the police that he felt drunk and not fit to drive. He also claimed that just before the accident the owner was drunk and pushing him to make him turn right. He claims that because of this the owner did not let him concentrate or look properly. He turned the P.M.V. and did not even see the motor bike. The owner, however, claims he was sitting to the rear of the P.M.V. However, the owner claimed the P.M.V. had completed its turn prior to the collision but this on the evidence was quite impossible and I can only assume that he, like the accused, and I suspect the others on board as well, was drunk.

Independent witnesses, leprosy patients at Madang Hospital, testified that the accused did not give any signal indicating his intention to turn right. The only matter in the accused’s favour is that according to these witnesses, the motor bike was travelling very fast. The fact that it actually broke in two on impact demonstrates this without doubt.

However, the accused brought about the deaths of the two men on the motor bike and as a somewhat fitting memorial, not unusual in these matters, the police found a half empty bottle of beer between the driver’s seat and the front passenger’s seat. This may have belonged to Govena, so I do not hold this against the accused.

The problem then is, what sentence is appropriate here? I, and most other judges, have pointed out from time to time that because motor vehicles in Papua New Guinea kill and maim so many people and cause so much damage, severe sentences are necessary in cases of dangerous driving causing death or grievous bodily harm to bring home to the people what a serious offence this is.

One of the problems with attempting to lay down general guidelines on sentencing in these matters is that to a large extent the law itself indicates that sentences must reflect the consequences rather than the degree of wrong-doing. The maximum penalties vary accordingly from the summary offence of driving in a manner dangerous to the public under the Motor Traffic Act 1950, carrying a maximum sentence of three months’ imprisonment, dangerous driving under s. 336 of the Criminal Code punishable summarily with six months’ imprisonment or on indictment with two years imprisonment or where death or grievous bodily harm results punishable with five years’ imprisonment. Except in the last instance fines may be imposed instead of or as well as imprisonment.

In Thomas’ Principles of Sentencing (Cambridge Studies in Criminology, Heinemann, London, 1st ed., 1973, vol. 27) it is said at p. 85:

“Sentences for causing death by dangerous driving are governed primarily by the nature of the offender’s behaviour rather than the fact of death, although this may be seen as an aggravating factor when comparisons are made with cases of simple dangerous driving. Imprisonment is normally reserved for cases where some element of deliberate risk or conscious disregard for safety is involved, and the effective range of sentences of imprisonment does not normally extend beyond two years. In cases of errors of judgment, which might be called ‘spontaneous negligence’, a fine is usually considered appropriate, ... [and later] In almost all cases, whether a fine or a sentence of imprisonment is imposed, a substantial period of disqualification from driving is added. The disqualification is usually ordered as part of the punishment suffered by the offender as a deterrent to himself and others rather than as a separate preventive measure for the protection of the public from further danger. [On p. 87 it is said that] ... the court is clearly reluctant to uphold sentences much in excess of two years imprisonment, even for cases which have grave aggravating features.”

Whilst I agree generally with these propositions I believe our courts’ sentencing policy must be more severe than in England. I have referred to the prevalance of the offence in this country. It is necessary to consider its cause.

Firstly, this is a newly developing nation. It has taken great strides forward in recent years, particularly since Independence. The booming export market for cash crops, especially coffee, has brought very large sums of money into the hands of people who are relatively unsophisticated and uneducated. This is so particularly in the Highlands. There has thus been an extraordinary upsurge in vehicle ownership and a corresponding upsurge in people seeking to drive. To many of these people to own and even to drive a motor vehicle is a status symbol but many, if not most of them, are unaware of the detail of our traffic laws and do not realize that every one of them has a purpose, namely the safety of those using the roads.

Secondly, the traffic law enforcement system has failed to keep up with this increase in motor vehicle usage. There is a shortage of police generally, let alone those with traffic expertise, and when one considers the increase in national vehicle ownership, it is not surprising that the police force has been unable to control the problem. The more roads which are built, leading off into small towns and villages, the more difficult it becomes for the police to serve summonses and to enforce court penalties. There are only a few towns in the nation where the police and the magistrates’ courts are coping relatively well with these difficulties. It is with the police and those courts of course, that the real answer must lie. If traffic offenders are dealt with efficiently at that level, with luck the serious cases involving death or serious injury which end up in the National Court will decrease, instead of increasing as they are now.

All this has resulted in a general disregard for the traffic laws which is reflected in an increase in dangerous driving cases in which one or more of the following five main aggravating factors are constantly reappearing.

They are:

N2>1.       Driving without a licence, on an expired licence, with someone else’s licence or in a vehicle not authorised by a licence in fact held.

N2>2.       Driving an uninsured and unregistered vehicle.

N2>3.       Driving under the influence of alcohol, or whilst drinking alcohol.

N2>4.       Driving a mechanically defective vehicle.

N2>5.       Carrying passengers for money on a vehicle not licensed to carry passengers for reward.

Whatever the ignorance of most drivers may be concerning the more technical of our traffic laws, each of these five factors in my view normally denotes a complete defiance of the law, because the law relating to them is very well known. When one of these factors is established, under no circumstances can I envisage a driver not going to gaol on a charge of dangerous driving causing death or grievous bodily harm. When two or more of these factors are established, in my view the sentence must become more severe. Where four of them have been established I have sentenced a driver who was convicted of killing six people and injuring twenty to four years gaol. He may well have deserved the maximum penalty of five years, or if the maximum penalty was greater, even more.

In the case now before me factors one, three and four are present. Two men died as a result and I have no choice but to impose a sentence which will not only effectively punish the accused but also I hope, act as some deterrent to others.

Before doing so I would add these few remarks which are I believe, appropriate for magistrates to consider when dealing with the more serious traffic offences before them such as dangerous driving and driving under the influence. If injury has been suffered by some victim of the offence, even if the case is not sent on to the National Court, it is a serious matter entitling the court to consider gaol as an appropriate penalty. If one or more of the above five factors are present, except drink in a driving under the influence case where it is already an ingredient, the court should consider whether gaol is appropriate. In cases where such an offence is committed while the offender is actually under a period of disqualification imposed by a court, it would only be in the most extraordinary circumstances that gaol was not a deserving punishment.

Finally, I would add that I believe a higher maximum penalty is appropriate for this offence. A more ascertainable range of sentences could then be developed. Also I believe the offence should be split into two offences, dangerous driving being one part and driving under the influence a separate part, so that if death or grievous bodily harm are caused in either event, the person responsible can be found guilty.

In so many of these cases it is established that the driver is affected by drink, but there is no evidence to prove the manner of his driving up to the point of the accident. In those circumstances, at the moment, the drunken driver who kills or maims, is often entitled to get off scot free.

The accused before me has now been in custody for over four months, he is a married man with two children and of previous good character. Bearing these matters in mind together with my earlier remarks, I sentence the accused to three years two months’ imprisonment with hard labour. In addition, pursuant to s. 338 of the Criminal Code I disqualify the accused from holding or obtaining a driving licence for six years from today.

Orders accordingly.

Solicitor for the State: K. B. Egan, Public Prosecutor.

Solicitor for the accused: M. Kapi, Public Solicitor.