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Kone, Public Prosecutor v [1979] PNGLR 294 (2 August 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 294 - Public Prosecutor v Sima Kone 

[1979] PNGLR 294

SC158

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE PUBLIC PROSECUTOR

V

SIMA KONE

Waigani

Prentice CJ Saldanha Greville Smith JJ

2 August 1979

CRIMINAL LAW - Sentencing - Principles of - Dangerous driving causing death - Sentence of imprisonment except in exceptional circumstances - Death of wife and child - Number of deaths relevant on sentencing - Recognizance inappropriate - Sentence of eighteen months’ imprisonment substituted.

CRIMINAL LAW - Practice and procedure - Plea of guilty - Practice of putting depositions piece by piece to accused for adoption or otherwise disapproved.

The driver of a motor vehicle whilst under the influence of alcohol and driving at considerable speed collided with two trees and as a result both his son and wife who were passengers in the vehicle were killed. On a plea of guilty, the trial judge read to the accused the depositions and sought his acknowledgement to each relevant fact, and then placed him on recognizance to be of good behaviour for two years stipulating that during that time the accused should spend ten days each month in the service of the occupational therapy patients at Port Moresby Hospital.

On appeal against inadequacy of sentence,

Held

(1)      In sentencing offenders on charges of dangerous driving causing death, only in the most exceptional of cases may the necessity for public deterrence against the offence be overridden by the circumstances of a particular case, to the extent that the offender is not sentenced to a term of imprisonment.

Whittall v. Kirby, [1947] K.B. 194, at p. 203;

R. v. Skelton, [1947] Q.W.N. 17;

Wise v. The Queen, [1965] Tas. S.R. 197, at p. 204; and

R. v. Thompson (1975), 11 S.A.S.R. 217, at p. 222, referred to;

The State v. Alphonse Naulo Raphael, [1979] P.N.G.L.R. 47, approved.

(2)      Where multiple deaths occur from dangerous driving, that may be considered as a factor in sentencing.

Public Prosecutor v. Willy Moke Soki, [1977] P.N.G.L.R. 165, followed.

(3)      In the circumstances the recognizance (with postponement of sentence) was quite inappropriate and a sentence of imprisonment with hard labour for eighteen months should be substituted.

(4)      On a plea of guilty before the National Court, any practice of putting depositions piece by piece to the accused for adoption or otherwise is not justified in view of the possibility of embarrassing a subsequent trial in relation to admissions and denials.

Appeal

This was an appeal against sentence pursuant to s. 23 of the Supreme Court Act 1975, on the ground of inadequacy.

Counsel

W. J. Karczewski, for the appellant.

D. S. Awaita, for the respondent (accused).

Cur. adv. vult.

10 August 1979

PRENTICE CJ SALDANHA GREVILLE SMITH JJ: This appeal is brought because the Public Prosecutor contends the sentence imposed in the National Court, following a plea of guilty to a charge of, by dangerous driving causing death, was totally inadequate to the circumstances revealed.

On the night in question, the respondent a graduate of the University, had been attracted to the re-opening (whatever that may mean) of an eighteen gallon keg of beer at a party. Some five people participated in some of its contents. Thereafter to his credit, the accused protested to his wife against being asked to drive, in what he then acknowledged to be his state of affection by alcohol, to the home of relatives in Konedobu — but was prevailed upon to do so. Later, however, he himself insisted against her protests, on driving his family home to Hohola. They got no further that the junction of Champion Parade with Port Road (near the Fire Station), where his vehicle collided with two trees and spun out of control. In the accident his son was killed instantly; and from the injuries she received therein, his wife died a few days later. Incontestably the respondent was at the time considerably under the influence of alcohol and was driving at a considerable speed. No emergency was created by any other occupier of the highway. The deaths resulted quite clearly from his dangerous driving.

His Honour the trial judge was impressed by the respondent’s character up to that point of time, and by the dreadful loss which he had sustained by his own actions. He apparently considered that no reformatory element was required in any sentence to be imposed, nor any element which would constitute a personal deterrent, it seems. And he apparently considered that an order of what seems to this Court to have been of a type entirely novel to P.N.G. — imported from the sophisticated systems of foreign countries, would meet the element of public deterrence that might be called for.

This Court regrets that, with the greatest respect, it most emphatically disagrees with the adequacy of his sentence.

The offence of by dangerous driving causing death, has reached staggering proportions in P.N.G. over recent years. It is a notorious fact that almost every one of the Highland tribal fights of the last two years stem from such an incident. Such a situation alone calls, in our opinion, for a most stern view to be taken of crime of this description — if any useful purpose is to be served by its being justiciable. Perhaps the Law can by sternness make a contribution to the development of society in this respect in P.N.G., we feel. By leniency, the law may only stimulate community troubles.

We cite a few judgments from other jurisdictions in the first instance as to the approach we consider called for:

Lord Goddard the then Chief Justice of the United Kingdom stated as early as 1946 in Whittall v. Kirby[cccxxix]¹,

“The offence of dangerous driving is one of a serious character. A man should certainly not be convicted of that offence unless the court is completely satisfied that he has so driven as to endanger the public. If he has, he has put the lives and limbs of others of His Majesty’s subjects in peril and deserves severe punishment, and it is difficult to understand how any court can consider this as other than a serious crime. I cannot believe that such an offence as this is one which should ever be dealt with under the Probation of Offenders Act. I agree that the words of the Act are very wide. The court can have regard to the character, antecedents, age, health or mental condition of the persons charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed. Character, antecedents, age, health or mental condition really have nothing to do with such an offence as driving to the danger of the public, and it must be seldom indeed that extenuating circumstances can be found for it; moreover, when the offender admits, or it is proved that he was drunk at the time, it is obviously a matter of aggravation.”

This statement was cited with apparent approval in a state having a Criminal Code section similar to ours in R. v. Skelton[cccxxx]².

Again in a state with a similar Code and section as ours, in Wise v. The Queen[cccxxxi]³ a previous decision was discussed and approved in which the Chief Justice of Tasmania had stated [Crisp J. quoting from Burbury C.J.’s judgment in Sheldrick v. The Queen[cccxxxii]⁴, but unreported on this point[cccxxxiii]⁵]:

“Speaking for myself, I desire to make it quite plain that in the case of a serious case of dangerous driving I think it is the duty of the trial judge to impose a term of imprisonment as a deterrent to others. If he does not do so I think he would be weakly merciful and failing in his duty. Those who drive in a manner dangerous to the public must, in my view, expect to go to gaol for this offence, however irreproachable their characters may be. I have myself taken this view in two cases in which I was the trial judge R. v. Cripps[cccxxxiv]⁶, and R. v. Foster[cccxxxv]⁷ — in the first case I imposed a term of imprisonment of twelve months — a very serious case, and in the second case a term of imprisonment of four months. They were both cases of young men with good characters. To my mind questions of good character and youth are in this type of case entirely subordinate to the deterrent aspect of punishment. Moreover the sentence is imposed primarily not for the purpose of deterring particular offender from offending again but for the purpose of deterring the others. It is a type of case where the reformatory aspect of punishment has I think little relevance. (See Whittall v. Kirby[cccxxxvi]⁸.) That is to say, the individual circumstances of the offender are subordinate to the necessity in the public interest of imposing a gaol sentence to deter dangerous drivers.”

And finally Chief Justice Bray of South Australia in R. v. Thompson[cccxxxvii]⁹ in a case of by dangerous driving causing death, stated,

“I realise to the full that the appellant is a man of good character and worthy of respect, that he is not, in the ordinary sense of the word, a criminal, that he had no intention of harming anyone, and that imprisonment will be to him a great hardship and a great indignity. He does not stand in need of reformation or rehabilitation. But, as I have said in other contexts recently on more than one occasion, there are offences where the deterrent principle must take priority and where sentences of imprisonment may properly be imposed, even on first offenders of good character, to mark the disapproval by the law of the conduct in question and in the hope that other people will be deterred from like behaviour. Offences against the public safety may often legitimately fall into this class.”

To our mind, the problem here with a multitude of defective vehicles being driven, frequently in drunken condition, by people with minimal driving abilities and little social responsibility in the matter of driving, is critical to the very existence of a stable society. See The State v. Alphonse Naulo Raphael[cccxxxviii]¹⁰; and Public Prosecutor v. Willy Moke Soki[cccxxxix]¹¹ in which latter case it was pointed out that where, as here, multiple deaths result from dangerous driving, that may be considered as a factor in sentencing.

The court considers that only in the most exceptional of cases may the necessity for public deterrence against this offence be overridden by the circumstances of a particular case, to the extent that the offender be not gaoled.

No less than his Honour the trial judge, we sympathise with the tragedy and horror in which the respondent found himself. Nevertheless we would feel recreant to society did we not impose a substantial sentence of imprisonment upon him.

We think we should comment upon the nature of the novel conditions to the recognizance which his Honour imposed. It was stipulated that the respondent should for two years spend ten days each month in the service of the occupational therapy patients at Port Moresby Hospital. This is similar to the community work orders that those who devised the Village Courts Scheme envisaged that these courts would adopt with enthusiasm — but which have proved so far completely unpopular in that jurisdiction, it seems.

Prosecution counsel has taken upon himself the responsibility — and we are grateful that he has done so — of elucidating what was involved in carrying out the National Court’s order. In the first place the trial judge had no means of knowing whether his order would prove acceptable or practical to those running the hospital unit concerned. It would obviously have involved them in awkward record-keeping — and in fact was highly inconvenient — indeed impracticable to them (though they have been kind enough to express their appreciation of the respondent’s character in trying to carry out the judge’s directions). We deprecate in any event, experimentation of this kind without prior investigation as to its implications, practicality, and acceptability to those required to carry it out. Perhaps, when a probation service is organized, orders of this kind, (in an appropriate case) if properly planned, could satisfactorily be supervised. But we reiterate, in our opinion, such a postponement of sentence is quite inappropriate to a crime of this kind, under present circumstances of prevalence and fell results.

We feel we should also comment on the practice apparently adopted in this case by the trial judge, of not only reading the depositions to see whether they accord with the acceptance of a plea of guilty, but of reading them aloud to the accused and seeking his acknowledgement to each pregnant fact. Apart from the likelihood that such a course is likely to result in many cases that ought to be dealt with at a particular sittings, being unnecessarily delayed by being adjourned to the next sittings held by another judge; there is no warrant for a judge to so question an accused and possibly thereby to embarrass his subsequent trial in the aspect of admissions and denials.

We have indicated above that we consider that a sentence of imprisonment is called for in this case. We have taken into account that the respondent has endeavoured to comply with the learned trial judge’s directions as to working at the Occupational Therapy Unit, and we have given him credit for that, in arriving at a decision as to the length of imprisonment he should serve. We indicate that but for the fact that those killed by his driving were members of his own family, the sentence of this Court would be higher.

The order of this Court is that the appeal be allowed, the conviction be affirmed, the sentence of the National Court be quashed and in lieu thereof the respondent is sentenced to be imprisoned with hard labour for a period of eighteen months.

Orders accordingly.

Solicitors for the appellant: K. B. Egan, Public Prosecutor.

Solicitors for the respondent: Craig Kirke & Wright.

[cccxxix] [1947] K.B. 194, at p. 203.

[cccxxx][1947] Q.W.N. 17.

[cccxxxi][1965] TASStRp 14; [1965] Tas. S.R. 196, at p. 204.

[cccxxxii][1960] Tas. S.R. (N.C.) 3.

[cccxxxiii]Unreported. (Judgment No. 41 of 1960.)

[cccxxxiv][1958] Tas. S.R. 24.

[cccxxxv]Unreported. (Tas. Sup. Ct., Burbury C.J., 30th April, 1958.)

[cccxxxvi][1947] K.B. 194.

[cccxxxvii] (1975) 11 S.A.S.R. 217, at p. 222.

[cccxxxviii][1979] P.N.G.L.R. 47.

[cccxxxix][1977] P.N.G.L.R. 165.