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Fleming v Dau [1983] PGLawRp 516; [1983] PNGLR 339 (14 October 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 339 - Robin Fleming v Gwale Dau�

[1983] PNGLR 339

N436

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

FLEMING

V

GWALE DAU

Kieta

Kidu CJ

7 October 1983

14 October 1983

CRIMINAL LAW - Sentencing - Minor offences - Maximum prescribed penalty - Maximum to be reserved for worst kind of offence.

VEHICLES AND TRAFFIC - Offences - Penalty - Maximum prescribed by statute - Maximum to be reserved for worst kind of offence.

INFERIOR COURTS - District Courts - Powers of sentencing - Maximum penalty prescribed - Maximum to be reserved for worst kind of offence - Particular circumstances to be considered - Magistrates Court bound by directions of superior courts.

PRECEDENTS - Binding effect of National Court and Supreme Court decisions - District Court bound by decisions and directions.

VEHICLES AND TRAFFIC - Licensing of drivers - Suspension of licence - Traffic offences - Powers of District Court - Restrictions on power to suspend - Motor Traffic Act (Ch. No. 243), ss. 17(1), 17(2), 18, 36.

The appellant pleaded guilty to a charge of driving without due care and attention contrary to s. 17(2) of the Motor Traffic Act (Ch. No. 243), arising out of an incident where he backed out of a private residence into a public street (a cul-de-sac) and bumped into a stationary bus. He was fined K100 (the maximum fine) and his driving licence was suspended for three months.

On appeal against severity of sentence:

Held

N1>(1)����� A maximum prescribed penalty for an offence (whether fine or custody) is to be reserved for the worst type of offences.

N1>(2)����� In imposing sentences magistrates must consider the particular circumstances of each case.

Ling Ainui v. Luke Ouki [1977] P.N.G.L.R. 11, followed.

N1>(3)����� Magistrates are bound by decisions of the National Court and the Supreme Court and must adhere to any directions given by these courts.

N1>(4)����� In the circumstances a fine of K50 ought to be substituted.

N1>(5)����� Magistrates have no power to suspend driving licences for offences other than those defined by s. 17(1) and s. 18 of the Motor Traffic Act and offenders who hold licences under s. 11 of the said Act.

N1>(6)����� There being no power to suspend a licence for an offence contrary to s. 17(2) of the Act the order suspending the licence should be quashed.

Appeal

This was an appeal against sentence on a plea of guilty to a charge of driving without due care and attention on a public street contrary to s. 17(2) of the Motor Traffic Act (Ch. No. 243).

Counsel

D. Lightfoot, for the appellant.

V. Noka, for the respondent/the State.

Cur. adv. vult.

14 October 1983

KIDU CJ: I heard this appeal at Kieta on 6 October 1983, allowed it, quashed the sentence imposed by the Kieta District Court (maximum fine of K100 and suspension of driving licence for three months) and substituted a fine of K50 instead. This fine was paid the next day by the appellant.

I said I would publish my reasons later, and this I do now.

FACTS

On 12 August 1983, about 8.00 p.m., the appellant was backing out of a private residence into a public street (a cul-de-sac) and bumped into a stationary Isuzu bus. The statement of facts reads inter alia as follows:

�... defendant now before the court. Told police that he reversed out from the house onto the road and he did not see the vehicle parked on the side of the road so he collided onto the rear and caused the signal light glass broken.�

The appellant pleaded guilty to the charge, which was brought under s. 17(2) of the Motor Traffic Act (Ch. No. 243), which creates the offence of driving without due care and attention on a public street. The maximum penalty provided is K100 fine or three months� imprisonment.

GROUNDS OF APPEAL

The grounds of appeal were:

N2>1.������ That the fine imposed and the period of suspension of driving licence were manifestly excessive having regard to the circumstances of the offence.

N2>2.������ That the magistrate had no power to suspend the driving licence for an offence under s. 17(2) of the Motor Traffic Act.

FINE

The fine imposed was the maximum provided for by s. 72 of the Motor Traffic Act. The National Court has stated on numerous appeals from the lower courts that the maximum sentence (whether custodial or fine) must be reserved for the worst type of any particular offence. Magistrates must always bear in mind this direction of the National Court and as they are bound by the decision of the National Court and the Supreme Court, they must adhere to it.

There is no doubt that the penalty imposed � that is the maximum fine of K100 and the suspension of driving licence for three months was more than manifestly excessive, considering the trivial nature of the case. The learned magistrate�s decision showed quite clearly that he did not consider the actual facts and circumstances applicable to the appellant. I quote from his reasons for decision:

�The circumstances which I understood justified the penalty imposed. The penalty which I considered based on what an average Papua New Guinean employee would be able to afford and in this case was not beyond the financial reach of the appellant. I have not overlooked the effect the sentence would have on the defendant and carefully considered before imposing the appropriate penalty.

This Court was very concerned over the safety of motorists and other road users. It had repeatedly warned the motorists in court to have some concern for other members of the public using the public roads so as to prevent possible mischief which could arise from their use of roads. The defendant had been convicted of an offence which was prevalent in the province which is a fast growing mining town. Despite the warning, more people are appearing in court each week on motor traffic charges.�

Neither the learned magistrate�s reasons, nor the other court records of the case refer to particular facts and circumstances of the case being taken into account in sentencing. I apply to this case what Williams J said in a case similar to this in 1976, Ling Ainui v. Luke Ouki [1977] P.N.G.L.R. 11 at 14:

�Looking at the facts appearing from the record of proceedings of the Local Court I am impelled to say that this is not a serious case of its kind. The appellant was apparently driving at a low speed because she was reversing her car. One can easily imagine far more serious cases of this kind, for example, driving without care and attention on the Hubert Murray Highway in peak hour traffic, where careless driving would be much more likely to create a situation of danger to life and property. Another important factor is that it appears that the appellant was a first offender. I am left with the firm impression that the magistrate gave insufficient weight to these circumstances and that he misdirected himself in the exercise of his discretion, particularly as regards the suspension of licence. It appears to me that the magistrate was applying some general rule that driving without due care and attention usually carried a penalty of K50 plus three months� suspension of licence rather than weighing the particular circumstances of the case which, in my view, indicated that this could not be described as a serious case of its kind. In my opinion the case called for the imposition of a pecuniary penalty without any suspension of licence.�

Following what Williams J said in the above case, and also bearing in mind that the maximum sentence (whether fine or imprisonment) is reserved for the worst type of any particular case, I quashed the fine imposed of K100 and in its stead substituted a fine of K50.

SUSPENSION OF DRIVING LICENCE

Section 36 of the Motor Traffic Act reads as follows:

N2>�36.��� Discretionary suspension, disqualification, etc

(1)����� Subject to section 35, the court that convicts a person of an offence against this Act may, in addition to any other punishment to which the person is liable under this Act in respect of the offence:

(a)����� if he holds a licence or a permit under section 11:

N5>(i)������ suspend the licence or permit for such time as the court thinks proper and, if the court thinks fit, also direct that no licence and no such permit be granted to him during such further time after the expiration of the licence or permit as the court thinks proper; or

N5>(ii)����� cancel the licence or permit and, if the court thinks fit, declare him to be disqualified from obtaining a licence or such a permit for such time as the court thinks proper; and

(b)����� if he does not hold a licence or a permit under section 11 � direct that no licence or permit be granted to him during such time as the court thinks proper.

(2)����� A person whose licence or permit under section 11 is suspended is, during the period of suspension, disqualified from obtaining a licence or permit.�

It is clear that s. 36 applies to breaches of traffic offences (except for offences covered by s. 17(1) and s. 18 of the Act) committed by those who hold driving licences issued under s. 11 of the Motor Traffic Act. If a driver who holds such a licence commits any offence under the Act, the magistrates have a discretion to suspend such driving licences. If offences other than offences provided for under s. 17(1) and s. 18 are committed by drivers who hold licences under some other sections of the Motor Traffic Act, then magistrates quite clearly have no power to suspend such driving licences.

Courts of the summary jurisdiction are purely creatures of statute and must confine themselves to the powers and jurisdictions set out in the statutes that create them, and also, they only exercise powers which are specifically given to them by other legislations. If there is no provision, as was the case here, to suspend licences for offences other than those provided for under s. 17(1) and s. 18 of the Motor Traffic Act, then the magistrates do not have the power to suspend driving licences.

In this case, the driving licence was suspended without power and therefore the order suspending the licence must be quashed.

Appeal allowed. Sentence quashed. Fine of K50 substituted.

Lawyer for appellant: N. Kirriwom, Public Solicitor.

Lawyer for State: L. Gavara-Nanu, Public Prosecutor.