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Police v Jekes (Jakas) [1998] PGDC 13; DC36 (19 August 1998)

Unreported District Court Decisions

[1999] PNGDC 3 - POLICE V ANGE JEKES (JAKAS)

[1999] PNGDC 3

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 13 OF 1998

POLICE (Informant)

v

ANGE JEKES (JAKAS) (Defendant)

Madang

Bidar PM

12-14 August 1998

19 August 1998

CRIMINAL LAW�Particular offences�Dangerous driving causing death�Tests to be applied�Test objective one�Finding of fault required�What constitutes fault�Criminal Code s328(5)

Cases referred to

Karo Gamoga v The State [1981] PNGLR 443

R v Conventry [1938] HCA 31; (1938) 59 CLR 633

McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44

R v Warner [1980] Qd R 207

R v Gosney [1971] 2 QB 674

McCrone v Riding [1938] 1 All ER 157

Smith v R [1976] WAR 97

R v Thomson (1975) 11 SASR 217

R v Harstorff, Ex parte Attorney General [1980] Qd R 597

Public Prosecutor v Willy Moke Soke [1977] PNGLR 165

Public Prosecutor v Sima Kone [1979] PNGLR 294

The State v Alphonse Naulo Raphael [1979] PNGLR 47

R v Hill (1976) 14 SASR 507

Legislation

Criminal Code s328(5)

Representation

Counsel/Representative:

Informant: Sergeant Pangai, Police Prosecutor

Defendant: Appeared in Person

Lawyers/Representative:

Informant: Sergeant Pangai, Police Prosecutor

Defendant: Appeared in Person

19 August 1998

BIDAR PM:

N1>[1]����� This charge is one where the punitive and deterrent aspects of punishment may well prevail over reformative aspects, where it may be appropriate to sentence even a first offender with good character to imprisonment, for examples' sake: See R v Thomson (1975) 11 SASR 217, or as it was said in R v Harstorff, Ex parte Attorney General [1980] Qd R 597:

". . . in most instance in this type of case sentences must be gauged to act as a deterrent more so than to the extent that they must be gauged as punishment. Thier main function must be so that other members of the community who are minded to drive their vehicles or put themselves in a position where they drive their vehicles such as this vehicle was driven would be deterred from so doing."

N1>[2]����� The principle that there is a need for public deterrence in cases of dangerous driving causing death is well established in this jurisdiction (see The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165).

N1>[3]����� In its unanimous judgment the court after making references to some overseas judgments, had this to say:

"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."

N1>[4]����� Similarly, the Court in Public Prosecutor v Sima Kone [1979] PNGLR 294 at 297 concluded as follows:

"The Court considers that only in the most exceptional of cases may the necessity of public deterrence against this offence be overridden by the circumstances of a particular case, to the extent that the offender be not gaoled."

N1>[5]����� See also The State v Aplhonse Naulo Raphael [1979] PNGLR 47.

N1>[6]����� Those principles are well established but they do not remove the judicial discretion in relation to sentence to the extent that a sentence of imprisonment is mandatory in every case of dangerous driving causing death. Neither the decision in Willy Moke Soke (supra) nor in Sima Kone (supra) attempts to outline or define the exceptional case which might call for lesser punishment than imprisonment and this makes good sense, as circumstances involved in cases of dangerous driving causing death may be infinite.

N1>[7]����� Not with standing this, and what is said in Willy Moke Soke (supra) and of the usefullness to be gained from decisions and cases of other jurisdictions, I think that there is a distinction between cases of heedlessness and recklessness or putting it in different terms, cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation, such as: high speed, intoxication, overtaking in the face of oncoming traffic, cutting corners are other examples of such recklessness and deliberately taking unjustifiable risks. See per Jacobs J in R v Hill (1976) 14 SASR 507 at 512. Another serious breach may be the person who drives a vehicle which he knows to be un-roadworthy or in a dangerous condition.

N1>[8]����� In this case it was neither the case of heedlessness nor an error of judgment on the part of the defendant, but the simply ignored warnings to slow down, knowing that the vehicle was un-roadworthy. This in my view created a dangerous situation. As a consequence four young people lost their lives which cannot be replaced.

N1>[9]����� Having considered various factors and the principles which I have referred to, and despite the fact that defendant is a first offender, I consider sentence of imprisonment is appropriate. In all the circumstances, I convict the defendant and sentence him to imprisonment for a period for four (4) years in hard labour. Sentence to commence today at Beon Corrective Institution.