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Kulau v Alile [1990] PGNC 35; N869 (22 May 1990)

Unreported National Court Decisions

N869

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP NO 48A OF 1990
GARRY KULAU
V
KEVIN ALILE

Lae

Doherty AJ
22 May 1990

A DEFAULT PENALTY OF IMPRISONMENT FOR NON PAYMENT OF A FINE NEED NOT NECESSARILY BE IN THE SAME PROPORTION THAT THE FINE BEARS TO THE MAXIMUM FINE APPEAL AGAINST DEFAULT SENTENCE, SIMILAR PROVISION IN CRIMINAL CODE CONSIDERED - s 201 of District Court Act considered.

Held

In deciding a default penalty the facts and mitigating circumstances if any should be considered as if the defendant was facing imprisonment. Default penalty should not be calculated in the same proportion to the maximum term of imprisonment as the fine is to the maximum fine provided by law.

Counsel

Mr Inkisopo, for the Appellant

Mr Peter, for the Respondent

DOHERTY AJ: The appellant ap against anst a decision of the District Court at Lae against sentence following his plea of guilty and conviction on a charge oawful use of a motor vehicle contrary to s 25(1) of the Motor Traffic Act.

The firstfirst ground of appeal was that the fine of K400.00 and default penalty of 12 months was in excess of the prescribed maximum punishment under the act. Counsel for the appellant has abandoned this ground in the light of the provisions of the amendment to the Motor Traffic Act (Amendment No. 16 of 1987) increasing the penalty to K2000.00 fine or imprisonment not exceeding five years. He proceeds on the argument that a default penalty of 12 months in hard labour for a fine of K400.00 is excessive.

The appellant pleaded guilty in the District Court and the facts were then read to him. He said “it is true I drove the vehicle. I didn’t get the owner’s permission to drive the vehicle. Other boys got the car key and they gave it to me so I drove the vehicle”.

The statement of facts show that the vehicle was taken from the driver of it (it is not clear if he was the owner) in circumstances that amounted to a robbery, viz a knife was put to the driver’s chest with the demand for the car keys. There is no suggestion that the appellant was one of the three male persons who apparently partook in this crime.

Some days later the appellant, through his mother, reported the location of the vehicle to the police. He informed the police that another person had brought the vehicle to him, handed him the car key and he went off in the vehicle. The statement of facts are not clearly worded but they do not convey any suggestion that the appellant partook in the original theft nor do they state that he was aware that someone else was the owner of the vehicle and he was not permitted to drive the vehicle. However, he clearly states he did not get permission and this matter has not been raised in appeal when I alluded to it.

Mr Peter suggests that vehicles taken in such circumstances are used for the commission of other crimes, the crime is a prevalent one and therefore a heavy sentence is warranted. There is no suggestion in the facts before me that the vehicle was used for another crime or that the appellant partook in the commission of another crime whilst the vehicle was in his possession. The description given in the statement of facts whilst the vehicle was driven around to several locations in Lae and then hidden. Hence neither the initial robbery nor a subsequent crime should have influenced the punishment of this appellant for this offence.

The learned magistrate states in his reasons for decision he considered that the allegation was a serious one and warranted a heavy penalty. He does not suggest he was influenced by the robbery but he does say that unlawful use of motor vehicles in committing various offences has become very common in the city especially at Lae. He appears to have taken Mr Peter’s view that a stolen vehicle is used for the commission of an offence.

The provision in s 25(1) of the Motor Traffic Act is similar (but not exactly the same as) s 383 of the Criminal Code. The Criminal Code provision is one that is dealt with in the National Court or, on election by the Public Prosecutor, before a principal magistrate in the District Court. It also carries a penalty not exceeding five years in hard labour. In contrast s 422 of the Criminal Code carries a maximum penalty of one year (Criminal Code Amendment Act No. 2 of 1986).

Hence a person indicted for a more serious crime under s 422 the Criminal Code could receive a lesser penalty than a defendant charged summarily in the District Court.

I have raised with counsel the provisions of s 20 of the District Court Act, which provides for default penalties for the non-payment of the fine and includes provision for a default penalty of 60 days for non payment of a fine in excess of K200.00. Both counsel agree that s 201 of the District Court Act does not apply to the case before me, however, it does indicate the attitude of Parliament to default penalties in summary offences and is a marked contrast to the default penalties provided in the Criminal Code Amendment No. 2 Act 1986. The learned magistrate does not indicate in his reasons for decision why he fixed a default penalty of 12 months for non payment of the fine but I note that a fine of K400.00 is one fifth of the maximum fine and 12 months is one fifth of the maximum imprisonment provision.

In the absence of information to the contrary I cannot assume that this is the method that the learned magistrate followed.

In considering a default penalty the Court should consider the circumstances of the case and the defendant before it. In this case the defendant pleaded guilty, he had voluntarily surrendered the car to the police (through his mother), he was a first offender, there was no suggestion he had partaken in the theft or the initial driving away of the vehicle. All these matter should have been in his favour. Weighed against this is a fact that is a prevalent offence in this area and the deterrent factor, as the learned magistrate rightly said, is called for.

I do not agree that the default penalty can be automatically on a pro rata based on the maximum fine and the maximum imprisonment term provided in the act. The defendant and the circumstances of the crime should both be considered as if a term of imprisonment was being imposed.

On this basis I consider that the penalty of imprisonment was excessive and I allow the appeal on the basis and substitute a fine of K400.00 or in default a period of imprisonment of four months in hard labour.

Lawyer for Appellant: Public Solicitor

Lawyer for Respondent: Public Prosecutor