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Antar v Nime [1975] PNGLR 296 (3 October 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 296 - Aruru Antar v Pius S Nime 

[1975] PNGLR 296

N7

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ARURU ANTAR

V

PIUS S. NIME

Mount Hagen

Edmunds J

3 October 1975

CRIMINAL LAW - Appeal against sentence - Principles of sentencing - Principle that maximum penalty to be reserved for worst type of offences - Whether sentence manifestly excessive - Minor traffic offence - First offence - Maximum penalty plus additional punishment excessive.

CRIMINAL LAW - Appeal against conviction - Plea of guilty - Undue haste in bringing accused before court - Suggestion of railroading.

VEHICLES AND TRAFFIC - Licensing of drivers - Person convicted of traffic offence - Power to suspend or cancel licence - When exercisable - Special feature of offence calling for exercise - First offence - Minor breach - Reasonable record - Motor Traffic Act, s. 21[cdv]¹.

INFERIOR COURTS - District Courts - Costs - Power of court to award costs - No power to award damages - District Courts Act, s. 267[cdvi]2.

The appellant, a government driver, pleaded guilty to a charge of driving without due care and attention contrary to s. 7(1b) of the Motor Traffic Act; he was convicted, sentenced to three months’ imprisonment (the maximum penalty) ordered to pay K40.00 costs (to cover hospital expenses for an injured child) and had his driving licence cancelled for one year. The charge arose out of an incident at about 8 a.m. one morning in which the appellant’s vehicle hit and injured a small child whom the appellant did not see run from the side of the road. The child was taken to hospital and had three stitches inserted in her head; the appellant was taken into custody, charged, brought before the court, convicted and sentenced, and was in a Corrective Institution before mid-day of the same day. On appeal against conviction and sentence,

Held

(1)      that the plea of guilty had been properly entered and the conviction should be confirmed.

Per curiam:the conduct of the police in taking the accused into custody for committing what is in effect one of the minor offences under the Traffic Act and in bringing him before the court while still suffering the emotional consequences resulting from injuring a small child, should not be condoned. Those involved in the administration of justice should not act in a manner that the suggestion can even arise, as it had in this case, that a defendant is “railroaded” before a court.

(2)      In imposing the maximum penalty (not being the maximum monetary penalty, but the maximum term of imprisonment) and then adding additional punishment under s. 21 of the Motor Traffic Act, for a minor offence under the Act the magistrate had lost sight of the principle that maximum penalties should be reserved for the worst possible type of offence, and the sentence of three months’ imprisonment was manifestly excessive for a first offence of driving without due care and should be quashed and a fine of K30.00 ordered in lieu.

(3)      The power to cancel or suspend driving licences, with regard to offences to which s. 21 of the Motor Traffic Act relates, should only be exercised where some special feature of the offence calls for its exercise: this will not normally be the case for a first breach of a minor offence under the Act, where the past driving record is reasonable. Accordingly the punishment of cancellation of driving licence for 12 months was clearly excessive and should be reduced to one month.

(4)      The power to award costs under s. 267 of the District Courts Act does not include a power to make an award of damages: the costs awarded should bear some relationship to the costs incurred by the informant in prosecuting the charge. Accordingly, the order for K40.00 costs to cover a possible hospital charge for the child, should be quashed.

Appeal

This was an appeal against conviction and sentence imposed by a District Court magistrate on a charge of driving without due care and attention contrary to s. 7 (1b) of the Motor Traffic Act.

Counsel

K. R. Roddenby, for the appellant (defendant).

A. M. Webb, for the respondent (informant).

3 October 1975

EDMUNDS J: This is an appeal against a conviction and sentence in the District Court at Mendi on 17th July, 1975, when the appellant pleaded guilty to an information charging him that he on the said 17th July, 1975, drove a motor vehicle upon a public street, to wit Mendi-Tente Road, without due care and attention contrary to s. 7 (1b) of the Motor Traffic Act. The Court convicted the appellant and sentenced him to be imprisoned for a period of three months, ordered the appellant to pay forthwith K40.00 costs in default one month’s imprisonment with hard labour, and cancelled his driving licence for a period of one year.

The grounds of appeal were:

(a)      a plea of guilty should not have been taken or entered;

(b)      the conviction was against the evidence and the weight of the evidence;

(c)      the sentence and penalty were manifestly excessive;

(d)      that part of the order as ordered the payment of K40.00 costs is ultra vires the magistrate.

Mr. Roddenby of counsel, who appeared for the appellant, tendered without objection by Mr. Webb, who appeared for the respondent, a statement of facts put to the District Court by the prosecuting police sergeant. The statement is as follows:

“On the 17th July, 1975 at about 8 a.m. the defendant was driving from Tente towards town. The defendant driving in opposite direction at that time the child was crossing the road. The child has gone ahead and the defendant did not know that the child had crossed the road. The defendant was watching the road only and did not look on the sides. Suddenly the child was hit by the vehicle about a half a foot from the front wheel. It was too late for the driver to take brakes so the vehicle hit the child and the child got injury on the head two deep cuts on the head and the child was admitted to hospital and the child got three stitches. A complaint was made to the police. The police attended the accident. The defendant was taken to the police station informed that he would be summonsed on the same date.”

The defendant is married with four children and is employed by Plant and Transport Authority as a driver.

The learned resident magistrate who heard the case has supplied the following statement of facts and reasons for his decision:

“FACTS

The plea of guilty was taken after the charge was read and explained to the accused who appeared to understand the full nature of the charge. He admitted the offence. The statement of facts read by the police is attached.

REASONS FOR DECISION

Failure to keep proper look out and have pedestrians in mind resulted in a child being hospitalized and unnecessary costs incurred by the Government in treating the child at the Mendi Hospital. Accordingly I awarded costs under s. 267 and s. 174 of the District Court Act.

In view of the likelihood of retaliation by local people when one of their number is injured, the court considered a deterrent sentence appropriate — especially in view of prior conviction for negligent driving and suspension of license for three months. There are far too many Government drivers being charged in the courts for careless driving and, quite apart from material damage to Government vehicles, there are an increasing number of road deaths on Highlands roads which magistrates and coroners are mindful of. I was satisfied the appellant admitted the charge and the facts and had no further statements to offer in mitigation.

In suspending the driver’s licence I believe that drivers need to be protected from themselves and also village people need protection from those who drive without due care and attention. The Administration also needs to employ better drivers. There is always a potential danger when village people walk on the road. The Mendi/Tente Road is a busy thoroughfare for pedestrians and all drivers in Mendi are aware of this fact.

Having regard to all the circumstances and failure by the driver to drive with due care and attention I consider he was rightly convicted and sentenced as charged.”

An affidavit of Kenneth Raymond Roddenby to which was annexed a letter first from the deponent dated 11th August, 1975, addressed to the Assistant District Commissioner, Mendi, and a reply dated 26th August, 1975 under the hand of K. A. Bond, Assistant District Commissioner, was also tendered without objection.

The first ground of appeal is that a plea of guilty should not have been entered. It would appear from the statement of facts that the appellant was driving a motor vehicle at about 8.00 a.m. on 17th July, when his vehicle collided with a child who was apparently on the road. From the statement of facts it appears the child was on the side of the road. The police were called to the scene and the appellant was taken into custody and brought before the Court the same morning, charged with driving without due care and asked to plead to the charge. The whole proceedings were conducted with such despatch that Mr. Roddenby, in a statement from the bar table, said he took instructions from the appellant before midday on the same day at the Corrective Institution to lodge an appeal. It is noted that the notice of appeal is in fact dated 17th July. It was argued for the appellant that he was not aware of the nature of the proceedings and had not in fact fully recovered from the shock of the accident.

The magistrate in his report referred to above stated the accused appeared to understand the full nature of the charge and admitted the offence. The magistrate’s note of proceedings, which is dated 17th July, sets out that the “defendant admits truth of information” and on allocutus said he wished to pay a fine. I think the magistrate’s report that the appellant appeared to understand the nature of the charge cannot be ignored, supported as it is to some extent by the notes he made at the time. In my view then this ground of appeal fails. However, I would not like it to be thought that I in any way condone the conduct of the police in first taking the accused into custody for committing what is in effect one of the minor offences proscribed by the Traffic Act. The appellant was a local resident and there could have been no suggestion that he would flee the area to avoid prosecution. His continued presence on the road did not constitute a further threat to the life or property of others, such as is inherent in the case of a drunken driver or a person driving an unroadworthy vehicle who refuses to take it off the road. There is no suggestion that proceedings by summons would not have resulted in his appearance before the Court and this is the course the proceedings should have taken.

My second criticism is in bringing the appellant before the court while still suffering the emotional consequences resulting from injuring a small child. In this particular case the letter from the Assistant District Commissioner, referred to above, reports that the appellant and the injured child’s father, Simil, both come from the same area and call each other “brother”. They are close friends and the appellant often lives with Simil’s family and treats Simil’s children as his. Since the accident they are still close friends. There can be no disputing the old adage that justice delayed is justice denied; however, the law should not operate with such speed that a driver should be placed in a position of first suffering the shock of being involved in an accident resulting in the injury of another person — in this case a person he treated as his own child — the second shock of being arrested by the police, and then to be brought before the Court, all in the course of such a short time that he is actually in a Corrective Institution the same morning. I think those involved in the administration of justice should not act in such a manner that the suggestion can even arise, as it has in this case, that a defendant is “railroaded” before a Court.

The second ground of appeal is that the conviction is against the evidence and weight of evidence. Driving without due care and attention means driving without adequate caution in all the circumstances. There is in this case no evidence of excessive speed, that the vehicle was not under proper control, that he failed to keep as near as practicable to the lefthand edge of the road — the collision with the child on the side of the road indicates this — but there is evidence of want of proper lookout. It is very difficult when driving in the Highlands always to avoid animals or persons suddenly coming out from the side of the road; however, this casts a greater duty of lookout on the part of the motorist. I think on the facts presented there was sufficient evidence to support the charge.

The third ground of appeal was that the sentence and penalty were manifestly excessive. I have considered the reasons for decision as supplied by the magistrate. His first reason relates to unnecessary Government expense and I will consider that reason when deciding the fourth ground of appeal. It is irrelevant to the question of penalty as there was not a civil suit. The magistrate then stated he considered the likelihood of retaliation by local people when one of their number is injured as a reason for a deterrent sentence. In this regard the Assistant District Commissioner in his report stated that in the time he has been in Mendi he can recall seven fatal accidents plus other accidents resulting in serious injury, without any attempts by people to take the law into their own hands — in fact in other types of killings there has been no attempt by the clan of the persons killed to avenge their death. The attitude of the public towards a particular type of offence is not a matter which should weigh heavily in determining penalty; it is a matter for the legislature to prescribe penalties for offences. If Courts are to attempt the exercise of determining public sentiment or reactions to particular offences before deciding the appropriate penalty an entirely new approach will be necessary in the administration of the criminal law.

The magistrate adds a further reason, namely a prior conviction for negligent driving and suspension of licence. This offence occurred some three and a half years earlier. The suspension period was the minimum mandatory suspension prescribed by the Act and the monetary penalty of K10.00 should have been a sufficient indication that the offence was a minor one. The appellant was by occupation a driver and presumably on the road most of his working time, and a gap of years between offences should not have resulted in the imposition of a greatly increased penalty. The penalty of three years is the maximum prescribed and the magistrate must have lost sight of the old principle that maximum penalties should be reserved for the worst possible kind of offence. Section 21 of the Motor Traffic Act empowers the Court in addition to any other punishment to order a suspension or cancellation of a licence. The words “in addition to any other punishment” indicate clearly the disqualification is thus designated in the Act by implication as a punishment. The magistrate then, having lost sight of the fact that maximum penalties should be reserved for the worst possible type of offence — and in this case it was not a serious breach of the Act — piled on top of the maximum penalty (and not the maximum monetary penalty, but the maximum term of imprisonment) additional punishment.

The magistrate did not, in the notes he made of his reasons for decision or the notes he made at the time, give any indication that before imposing the punishment of disqualification which could result in the loss of the defendant’s employment he had sought the defendant’s views on that issue.

The magistrate in his reasons also said far too many Government drivers were coming before the courts for careless driving, quite apart from material damage to Government vehicles. He did not make any comparison between charges against Government drivers and other persons whose occupation is driving for the offence of careless driving. Prevalence of offence is of course a matter for consideration in determining penalty but total of offenders is perhaps a better guide in determining prevalence. The question of damage to Government vehicles is a matter for Government action. There was no evidence that in this case any damage was caused to the vehicle. The reference to increasing deaths on the Highlands roads is relevant in determining penalty if the deaths resulted from careless driving. There are of course many deaths on the Highlands highways which do not result from careless driving. In any event the increase in deaths should be measured against the increase which has occurred in the number of vehicles in the Highlands, the increasing use of those vehicles and the additional people using the roads, for example the number of schoolchildren.

The statement of reasons advanced for cancelling the defendant’s licence are curious. The first is a desire to protect the driver from himself — it is not suggested the driver in this case was in any particular danger. His past driving record was not a bad one. The statement that the Administration should employ better drivers is quite irrelevant in the determination of the penalty to be imposed. The fact that there is a potential danger to people who use the roads is of course a reason why the law proscribes careless driving. What the magistrate should be concerned about is the nature of the particular offence before him, not matters which the legislature has already decided.

A magistrate’s discretion in determining penalties will be revised if he has proceeded on some wrong principle or the penalty is clearly unreasonable in the circumstances — or as it is sometimes put, manifestly excessive. The magistrate in this case has clearly acted on wrong principles when determining penalties. It is difficult to determine, from the notes he made on the hearing which reported that the defendant had eight previous convictions, if the defendant admitted the convictions. Mr. Roddenby informs me the appellant does not admit all the convictions and in any event only one of them was a traffic offence — the charge I have referred to above.

In Wade v. Trotter[cdvii]³ it was held that to ascertain if a penalty is manifestly excessive or insufficient necessitates a comparison with criteria extraneous to the circumstances proved, namely penalties that have been imposed for comparable offences. This was the appellant’s first conviction for the offence of driving without due care. For a first offence of driving without due care the normal penalty is a fine. Although in matters of discretion the views of the Court of first instance are not departed from lightly, this presumes the Court of first instance has exercised its discretion by applying correct principles.

I cannot determine what bearing the various matters extraneous to the proper exercise of the magistrate’s discretion had in determining penalty. Clearly the fixing of the maximum penalty and adding two further punishments to that means the penalty cannot stand.

In the circumstances I think the proper penalty in this case should be the penalty normally determined, namely a fine, and for these reasons I quash the order of the magistrate that the appellant be sentenced to three months’ imprisonment and order in lieu that he be fined K30.00 and in default of payment imprisoned for 30 days.

The punishment of cancellation of licence is more severe than that of suspension and this indicates the magistrate’s approach to the fixation of penalty. To deprive a man employed as a motor driver of the right to drive a motor vehicle is a serious matter. Suspension is of course justified in the case of flagrant and frequent disregard of the provisions of the Traffic Act or if a vehicle is used, for example, in the exercise of some criminal activity. The Traffic Act clearly marks out those offences which are serious enough to warrant suspension without further consideration. With regard to offences to which s. 21 relates, there must be some special feature of the offence which calls for the exercise of the power to cancel or suspend. This is normally not the case of a first offence against the provision of the Act under which a person is convicted whose past driving record is reasonable.

The cancellation ordered of 12 months is clearly excessive. I am informed that the appellant’s licence was restored a month after his conviction pending the determination of his appeal, and I order that his licence be suspended for one month to commence from 17th July, 1975 to cover the period the appellant was without a licence.

The fourth ground of appeal related to the order that the appellant pay K40.00 costs in default imprisonment with hard labour for one month. The magistrate stated his reason for making this order was because of the costs incurred by the Government in treating the injured child. He stated he awarded the amount under the provisions of s. 267* and s. 174 of the District Courts Act. Costs in litigation ordinarily mean party and party costs and in summary jurisdiction are normally the costs of prosecuting the charge. I do not know how the magistrate determined the sum of K40.00, but it appears to bear no relationship to the costs incurred by the informant — the respondent who is a police sergeant — in prosecuting the charge. He did not employ counsel and no witness fees were involved. I am not sure what is meant by the reference in par. (a) of sub-s. (1) to complainant and then the requirement that costs be paid to the informant. A magistrate in the determination of costs must act in effect as a taxing master. There is certainly no power to make an award of damages, which the magistrate appears to have done, to cover a possible hospital charge which he assessed apparently without guidance at K40.00, for inserting three stitches in the child’s head.

In the limited facilities available to me I cannot find any prescribed amount of costs as provided under sub-s. (2) of s. 267. The regulations made under the District Courts Act in 1965 and 1967 do not appear to prescribe any amount which can be awarded as costs. Until some amounts are prescribed, no order for costs can be made if proceedings are commenced on complaint, and the fixation of such amounts would be a useful guide in determining costs in cases where proceedings are commenced by information.

Certainly the magistrate misconceived his power to award costs when he made an order for K40.00. The order to pay the amount must be quashed and in the absence of any proof of costs of the prosecution no order for costs can be made.

Appeal allowed as to sentence.

Solicitor for the appellant: N. H. Pratt, Acting Public Solicitor.

Solicitor for the respondent: B. W. Kidu, Crown Solicitor.

[cdv]The relevant portion of s. 21 appears at p. 301.

[cdvi]Section 267 of the District Courts Act provides:—

267.

(1)        The power of a court to award costs and the award of costs by a court are subject to the following provisions:—

(a)        where the court makes a conviction or order in favour of the complainant, it may in its discretion award and order that the defendant shall pay to the informant or complainant such costs as it thinks just and reasonable;

(2)        Costs awarded under this section upon proceedings upon a complaint shall not exceed the prescribed amounts.

[cdvii][1934] SAStRp 15; [1934] S.A.S.R. 62.