Soki, Public Prosecutor v [1977] PGSC 16; [1977] PNGLR 165 (2 June 1977)

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CRIMINAL LAW - Appeal against sentence - Inadequacy of sentence - Dangerous driving causing death - Number of deaths may be considered as factor in sentencing - Dangerous driving causing six deaths - Recognizance to be of good behaviour - Custodial sentence called for but not imposed in view of 12 months� delay on appeal and expiration of recognizance.

APPEAL - Delay in bringing - Delays in provision of transcript and preparation of appeal books working injustice - Procedures suggested to prevent.

On appeal against inadequacy of sentence in circumstances where the respondent was convicted of dangerous driving causing death and sentenced to be discharged upon entering into a recognizance to be of good behaviour for 12 months (after taking into account five months spent in custody) it appeared that the offence which resulted in the deaths of 6 people occurred in December 1975, the sentence was imposed in May 1976, the notice of appeal delivered in June 1976, no transcript of evidence was available until December 1976, and that at the date of the hearing of the appeal the full term of the recognizance had expired.

N1>(1)�� For the offence of dangerous driving causing death, whilst appreciating that the causation of death should not be allowed to convert into �dangerous driving� behaviour which would not otherwise rank as such, the seriousness of the outcome (the number of deaths resulting) may be looked at as one of the relevant features in assessing what sentence is required to act as private and public deterrent, and to assure public conscience that the Law in the prevailing state of the community existing in Papua New Guinea will demonstrate an element of retribution.

N1>(2)�� In the circumstances, the gravity of the offence was such that it clearly called for a custodial sentence of the order of six months and above (after taking into account the five months spent in custody).

N1>(3)�� In view of the long delay in having the appeal heard and in view of the expiration of the recognizance to be of good behaviour, the appeal should be dismissed.

Comments on the delays in the provision of transcript and preparation of appeal books working injustice and procedures suggested to overcome these problems.

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

FROST CJ PRENTICE DCJ WILLIAMS J: Appeal is brought herein against inadequacy of sentence for an offence of dangerous driving causing death occurring in December 1975. The trial judge on 16th May, 1976 placed the respondent on a good behaviour bond.

At the outset the State Prosecutor conceded that if the appeal were allowed, the respondent should not nevertheless now be sentenced to imprisonment. He made this concession not only on the ground that such a long time had elapsed in bringing on the appeal (through no fault on the respondent�s part), but also because the full term of the bond has now been served. He made the concession only in the special circumstances of the case.

The Public Prosecutor admitted that a good deal of delay, viz. that from 23rd December, 1976 until the present, has been due to his officers and their lack of supporting staff. But the principal element in the delay has been that though notice of appeal was delivered to the trial judge about 25th June, 1976, no transcript of evidence was available until 23rd December, 1976. The delay in the hearing of appeals from magistrates is frequently occasioned by the failure or inability of the respective tribunals to deliver reasons for judgment. This feature is commonly the subject of criticism in the National Court. It is therefore we consider, a matter for regret that a similar very lengthy delay should have occurred in an appeal from the National Court itself.

However, the preparation of a transcript from long hand notes is a laborious and time-consuming process, and every effort must be made by counsel to avoid unnecessary demands in this regard on the judges and court staff. In this case for instance, it now appears from the way the appeal has been conducted (the argument for the appellant has been submitted on a complete acceptance of the judge�s findings of fact without reference to the evidence), that the preparation of the transcript of evidence has been almost a complete waste of time and effort.

The Rules of the Supreme Court provide that an index should be prepared as soon as practicable after a notice of appeal has been filed (r. 16(1)). Usually this can be done without the necessity of having a transcript. The preparation of an index after consideration of the grounds of appeal should clarify which portions of the transcript of notes will be required. The aphorism �Justice delayed is justice denied� is applicable equally in the criminal as in the civil fields of law. Where appeal has been brought, it is obviously in the interest of a convicted person as it is in that of the State, that finality of decision be reached promptly. Justice demands it. Criminal appeals do not in Papua New Guinea carry with them sanctions as to costs. It is therefore most important that counsel for the prosecution and for the Public Solicitor do their work so as to bring on appeals with despatch. If difficulty is being experienced in obtaining a transcript then consideration may be given to relying on the spelling out in court of the notes from the judge�s note book. The procedure of motion to the court that an unduly delayed appeal be struck out for want of prosecution might also be availed of. And we consider that in some cases it may become necessary for the Court to order that an appeal be brought on and struck out if necessary, for non-compliance with rules.

At the trial, findings of fact were made which unquestionably support the conviction of the respondent for the offence of dangerous driving causing death. The learned trial judge, having regard to the fact that the respondent had then been in custody five months, to his previous good record and to what he described as mitigating factors, imposed neither a custodial sentence nor disqualification; but placed him upon a good behaviour bond for 12 months.

Discussion of the cases from the United Kingdom, and citations from Tasmanian, Victorian and Queensland judgments have been put before the Court. We feel that all have to be considered with a good deal of caution. It is we think, unnecessary to canvass them, though we have been greatly assisted by a consideration of them. The effectiveness and desirability of custodial sentences, driving disqualifications, fines and good behaviour bonds respectively for the offence of dangerous driving causing death, may differ widely we consider, between the societies of other countries and those existing in Papua New Guinea. In many areas of this country and with some of its inhabitants, sentences of detention appear to us to be the only really effective personal and public deterrent available. Sentences of detention appear to be in tune with what public conscience and community feeling would demand in most cases of dangerous driving causing death.

Apparently in other countries, judicial opinion has varied as to whether and to what extent the facts that death has been caused as an incident of dangerous driving and the number of deaths, may be allowed to affect the outcome. While appreciating that the causation of death should not be allowed to convert into �dangerous driving�, behaviour which would not otherwise rank as such, we consider that nevertheless the extent of the injury caused cannot be entirely ignored. (An analogy may correctly be found we consider in the attitudes of progressive sternness required in sentencing for thefts of say, K10, K500 and K2500.) Just as the extension of calamity to numerous passengers or to many pedestrians in a crowded roadway may highlight the degree of care which was required of the driver concerned in the circumstances; so we consider may the seriousness of the outcome (the number of deaths resulting) be looked at as one of the relevant features, in assessing what sentence is required to act as private and public deterrent, and to assure public conscience that the law in the prevailing state of this community will demonstrate an element of retribution.

We are aware that each member of the National Court has from time to time found sets of circumstances in cases of dangerous driving causing death which called for lesser punishment than a gaol sentence. It is probable that in many of such, the convicted man had already spent time in custody. But the instant set of facts as found by the learned trial judge disclose in our opinion, a bad case of dangerous driving causing death. Indeed the trial judge held that the respondent had been guilty of �a serious breach of the proper conduct of the vehicle on the highway�. The respondent was knowingly affected to an appreciable degree by alcohol, to such an extent that he neglected to don his spectacles without which his vision was markedly defective. He drove a vehicle the brakes of which were quite defective, loaded with some 17-21 passengers, at night � at a speed of not less than 35 m.p.h. Having prior notice of a vehicle ahead, and becoming dazzled by the lights of an oncoming vehicle on a straight stretch of dry level road, he neglected to reduce speed and collided with a lit vehicle stationary on the edge of the road (the driver of which had been stopped by police). To these features which sum up to dangerous driving, must, we consider in this case, be added the factor that six deaths resulted therefrom. The trial judge appeared to find a strong circumstance of mitigation in that the lit vehicle with which the respondent�s vehicle collided was parked in a peculiar position on a deserted section of highway and that if that had not been so the accident would not have happened. Against this there is on the other hand the specific finding of the trial judge that it was the dangerous driving of the respondent which caused his vehicle to collide with the parked vehicle. The factor adverted to, does not to us appear a circumstance of mitigation.

This Court has an unfettered discretion on an appeal such as this to substitute what it considers the appropriate sentence (Pia-Afu�s case[clxiii]¹) if an appeal against inadequacy of sentence be allowed. We consider the gravity of this offence was such that it clearly called for a custodial sentence of the order of six months and above (after taking account of the five months spent in custody). But for the delays which have occurred this appeal would therefore have been allowed. In the light of the concessions which have been very properly made by the Public Prosecutor, the order of the Court however will be that the appeal be dismissed.

[clxiii]span>[1971-72] P. & N.G.L.R. 393.

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Supreme Court of Papua New Guinea

Soki, Public Prosecutor v [1977] PGSC 16; [1977] PNGLR 165 (2 June 1977)

Papua New Guinea Law Reports - 1977