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Kuna v Police [1994] PGNC 28; N1296 (28 September 1994)

N1296

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP. /1994

BOAS KUNA

v

POLICE

RABAUL: DOHERTY, J
28th September, 1994

Sentence - calculating sentence where a minimum penalty applies. Appellant appealed against sentences imposed for driving under the influence of liquor and driving without a licence.

The appellant Boas Kuna appeals against two decisions of the District Court at Rabaul when he was found guilty on two offences, of driving under the influence of liquor pursuant to s.18(1) of the Motor Traffic Act Ch.243 and driving without a licence pursuant to section 21 of Motor Traffic Act Chapter 243.. He was sentenced to a term of 6 months imprisonment with hard labour on the first count and 3 months concurrently on the second.

Held:

(1) There was no custodial sentence provided in law for driving without a licence and therefore the sentence imposed was a nullity.

(2) The District Court must record all that a prisoner says on allocutus.

(3) When assessing a minimum penalty the Court must not use the minimum prescribed by law as a base figure but must, if it decides a custodial sentence appropriate, consider what sentence it would impose if there was no minimum provided and if this is the same or less than the minimum then it imposes the minimum sentence. If this is higher than the minimum then it is appropriate to impose the sentence.

Cases Cited:
Laho Kerekere v. Robin Miria [1983] PNGLR 277

Mr Ousi, for the Appellant
Mr Rangan, for the Respondent

DECISION

DOHERTY, J.: The two appeals arise from the same circumstances and were argued together.

The record shows that the appellant pleaded guilty to both counts and agreed the statement of facts. He did not adduce any evidence in rebuttal of the facts and did not make any statement relating to them. The facts show that he was seen driving a blue Nissan Blue Bird along Malaguna Road towards Kokopo when he was stopped by the police. He smelt strongly of liquor, his eyes were red and watery and he was talkative. He apparently told the police that he started drinking "mixed drinks" (I do not know what that means, if it was spirits or other drink) on the evening of the 2nd July at about 8.00pm and continued drinking until about 11.00pm. He then went to Wunamami Vocational School and continued to drink there. When he went home at about 5.30am he took the key of the vehicle from his brother. His brother was asleep and I can only presume he removed it from his brothers clothes and took the vehicle away. It is not apparent from the facts before the Court but I am told by counsel that the vehicle was a hired car.

On allocutus it is recorded that he said the word "fine". As I have said in other cases I find it very hard to believe that a defendant says only one word "fine" on allocutus and I have criticized another Court persistently recording the word "fine" in allocutus. After 20 years as a practicing lawyer and on the bench I have yet to hear one person say the one word "fine" on allocutus. The District Court is a Court of record and all that was said must be recorded. However, that has not been challenged and it would appear that he was given an opportunity to speak.

It is not in dispute between counsel that the provisions of s.21 of the Motor Traffic Act Ch.243 have not been amended and therefore the penalties shown in the Motor Traffic Act Ch.243 do not include a custodial penalty. It is therefore common ground that the penalty of three months imposed is in excess of the jurisdiction and it must follow that it is a nullity. S.21 provides only for a fine. There is no alternative custodial sentence and accordingly the provisions of s.201 of the District Court Act Ch.40 would apply if a fine had been imposed.

I therefore uphold the first appeal against the sentence imposed under s.21 of the Motor Traffic Act.

I have considered the facts in this case. When acting as an appeal Court the court must only consider the facts that were presented to the District Court. Those facts alone show that the appellant could also have been charged with stealing, that is he took the key from his brother whilst the brother was asleep and it would appear also, although it is not altogether clear, that he must have been driving an uninsured vehicle. I accept that he was comparatively young and he acted while under the influence of liquor. It was a remarkably stupid action on his part. However, I consider also that he was driving on what is a busy road, I accept that it was 5.30am or sometime thereafter and it was lucky for him that there was not an accident.

I consider I am entitled to take some judicial notice of the high incident of accidents involving death and injury that occur in this country when people drive under the influence of liquor. I have not been presented with statistics but it has been said in other cases that a large percentage of the dangerous driving causing death cases coming before the Courts emanate from drunkenness on the part of the driver. On the appellant's side I accept that he is a young offender and that he has not been in trouble before. I accept also that he was acting in stupidity although I wonder, looking at the facts, whether there was an element of daring on his part also. He could have been charged the more serious offences, he was not.

Counsel for the appellant suggests that the fact that he was red in the eyes may have been something to do with his background and his being from Bougainville but I note in Court today that his eyes are not red so I presume that they are not normally red. They look quite normally white to me. I think therefore that I can assume, as a police did, that the redness emanated from drunkenness and possibly a lack of sleep as the facts show that he continued to drink through the night.

I consider that this is a serious incident of driving whilst under the influence and it was luck more than anything else that ensured that no other cars were involved in an accident.

The sentence that was imposed was a period of six months. Section 18 of the Motor Traffic Act involves a fine or a minimum custodial sentence. To the best of my knowledge there are only a few minimum penalties in law at present in Papua New Guinea: the Motor Traffic Act, the Dangerous Drugs Act, the Liquor Licensing Act S.98 and the Escape Provisions under s.139 of the Criminal Code. Minimum penalties have been considered at the Supreme Court as Constitutional and they are binding upon the Court. As Judge Amet as he was then, now the Chief Justice in the case of Laho Kerekere -v- Robin Miria (1983) PNGLR 277 said that the Court has an option under s.138 the District Court where there is a minimum sentence prescribed to consider a non-custodial discharge. That is the only option that is open to a court faced with a minimum penalty. The Court must access the facts and decide whether to use the provisions of s.138 of the District Court Act and record a conviction and discharge the accused.

The learned magistrate in this case did not decide to operate that option and I think that the learned magistrate in the circumstances of this case was entitled to make that decision. Although the appellant is young, a first offender and he pleaded guilty all of which is in his favour, I still think this was a most serious incident. I think the Court was entitled, as it did, to consider a custodial sentence both as a deterrent for a prevalent offence in this area and in view of the facts. Once he had decided to impose a custodial sentence how should the learned magistrate, given a minimum of three months and a maximum of 12 months assess sentence.

I look at what the former judge Barnett J. had said when adapting the ruling of the Privy Council on assessing a minimum penalty. The Court must ask itself "what is the penalty I would give in this particular case if there was no minimum". Then if that custodial sentence is the same as or less than the minimum then the minimum sentence should be imposed. If that is above the minimum sentence prescribed then that is the sentence. The Court must not start by saying "what is a minimum", using the minimum as a base figure and working up from that point. This is how the learned magistrate should have assessed sentence in this particular instance. He should have said to himself "what type of sentence should I impose", he should not start with the minimum and work upwards.

Taking the facts of this case and considering that it is a serious incident of a person who is drinking all night and not having learnt at any time to drive properly I agree a custodial sentence was properly imposed. I take into account the fact that he was a first offender, he pleaded guilty, he was young, he appears to have cooperated well with both the Court and with the police. He appears to have been in custody for three days prior to being brought before the Court and this does not seem to have been deducted.

I think in the circumstances of this case the Court should have thought of a period of three months or less. Three months being the minimum I impose a sentence of 3 months in lieu of the six months. I deduct the three days in remand in accordance with the Criminal Justice (Sentences) Act 1986.

I consider that a fine should have imposed for the non holding of a licence because there was no custodial provision under s.21. In lieu of the three months I impose a fine of K45.00 to be paid and if it is not paid then the Court will have to consider a default penalty.

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Lawyers for the Appellant: Warner Shand
Lawyers for the Respondent: State Prosecutor