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Beng v Kombel [1975] PGLawRp 496; [1975] PNGLR 49 (25 April 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 49 - Guje Beng v Kombel

[1975] PNGLR 49

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GUJE BENG

V

BILLEY KOMBEL

Port Moresby

Prentice SPJ

25 April 1975

CRIMINAL LAW - Practice - Sentencing - Sentencing policies concurred in by magistrates - Relevance and effectiveness of - Policy of rigid scale of minimum penalties improper - Unlicensed driving of public motor vehicle - Fine of K60 substituted for eight weeks� imprisonment.

The appellant, a self employed truck driver and married man with four children, was convicted in a Local Court on a charge under s. 11 of the Motor Traffic Act of carrying passengers for reward in a vehicle for which no P.M.V. licence was carried; he was sentenced to eight weeks� imprisonment, the magistrate purporting to follow a pattern of sentencing to that effect. On appeal therefrom,

Held

N1>(1)����� The framing of punishment policies by magistrates, although desirable for achieving consistency and adequacy of punishments cannot be done by way of fixing a rigid scale of minimum penalties; only the House of Assembly may do that by way of legislation: to attempt to do so is for the magistrates in advance to abdicate their statutory duty to exercise their discretion in each case in accordance with the facts therein disclosed.

N1>(2)����� Circumstances special to the appellant, e.g. good character, family situation, which ought to have been weighed in his favour had not been taken into account and a substantial miscarriage of justice had accordingly occurred.

N1>(3)����� The sentence of eight weeks� imprisonment was excessive and there should be substituted a fine of K60.

Appeal

This was an appeal against a sentence of eight weeks� imprisonment for an offence under s. 11 of the Motor Traffic Act, of carrying passengers for reward in a vehicle for which no P.M.V. licence was carried.

Counsel

P. Avery, for the appellant.

K. B. Egan, for the Crown.

Cur. adv. vult.

25 April 1975

PRENTICE SPJ: Appeal is brought herein against a sentence of eight weeks� imprisonment for an offence under s. 11 of the Motor Traffic Act, of carrying passengers for reward in a vehicle for which no P.M.V. licence was carried.

The learned magistrate purported to follow a pattern of sentencing, apparently concurred in at a magistrates� conference in the middle of 1974. After appropriate publicity and warnings to the public, the sentencing �patterns� were put into operation by the magistrates in September 1974. The tariff agreed upon was apparently eight weeks� imprisonment for �an owner of an unlicensed P.M.V. driving and picking up passengers�; and four weeks� imprisonment for an unemployed driver �who knows but drives and picks up passengers� (in a vehicle not licensed as a P.M.V.).

As was pointed out by the Chief Justice in Kapena Boe Arua�s case[li]¹�and by myself in John Kamir�s case[lii]²�the magistracy must be regarded as a body familiar with the needs of the times so far as the sentencing of motor car drivers for offences under the Motor Traffic Act are concerned.

There is always to my knowledge, a great deal of effort put by benches of magistrates into the attempt to attain a proper consistency as to penalties and a deterrent suitable to local circumstances. I think it may be regarded as even more important that the benches of magistrates in Papua New Guinea such as exist in Lae, Rabaul, Port Moresby and other cities, should similarly strive for consistency and adequacy of punishments. The framing of punishment policies may indeed be considered imperative in a country where the education of magistrates and their experience is in many cases far less privileged than in other countries � and where there may be considerable unevenness of education and experience among the magistrates themselves.

I would not for myself cavil at general policies as to sentences being set. But such may not be done by way of fixing a rigid scale of minimum penalties. Only the House of Assembly may do that by way of legislation. To attempt to do that is for the magistrates in advance, to abdicate their statutory duty to exercise their discretion in each case in accordance with the facts therein disclosed.

The present offence is a calculated, bold one. The appellant appears to have admitted a course of conduct of the kind. But the court record does not disclose that prior convictions for similar or any other offences were admitted by or proved against the appellant though the possibility of the existence of some such was raised. The appellant therefore came before the court as a man of �good character� as far as convictions went. The family commitment and employment position of the accused do not seem to have been taken into account. He was a self-employed truck driver, a married man with four children. The court record and the magistrate�s reasons suggest that the appellant was �in no way singled out for special or exemplary treatment as example (sic) to other motorists�. But equally, it seems clear to me, that the circumstances special to the appellant that ought to have been weighed in his favour, have not been taken into account.

The sentence of eight weeks� imprisonment seems to me excessive in the circumstances. And as the relevant factors do not appear to have been considered, I feel a substantial miscarriage of justice has occurred. The appellant has already served one week�s imprisonment. In view of that I consider the offence should now be met by the imposition of a fine. I do not wish to be misunderstood. I would be prepared to agree that offences of this character and perhaps many of them could well call for a sentence of eight weeks� imprisonment. But I do not think the file in this case and the facts put before me indicate that this was one of them.

I allow the appeal. I confirm the conviction. I quash the sentence of eight weeks� imprisonment. I substitute a fine of sixty kina to be paid at Boroko Local Court within seven days hereof (in default twenty-one days� imprisonment with hard labour).

Appeal allowed.

Conviction confirmed.

Fine of K60 substituted for sentence of eight weeks� imprisonment.

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

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