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Police v Gunua [1999] PGDC 7; DC53 (30 April 1999)

Unreported District Court Decisions

[1999] PNGDC 19 - POLICE V THOMAS JOSEPH GUNUA

[1999] PNGDC 19

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NOS 2 & 3 OF 1999

POLICE (Informant)

v

THOMAS JOSEPH GUNUA (Defendant)

Kimbe

S Lenalia PM

26 April 1999

30 April 1999

CRIMINAL LAW—Particular Offence, Dangerous Driving Causing Death, Plea, Sentence—Criminal Code (Ch262) s328(5).

CRIMINAL LAW—Dangerous Driving Causing Deaths, Multiple Deaths—Evidence, Consumption of intoxicating Liquor, Aggravation, Criminal Negligence, Standard, Dangerous Driving, Test, Objective Test Impersonal and universal.

Cases referred to:

The State v John Koe [1976] PNGLR 562

Karo Gamoga v The State [1981] PNGLR 443

Acting Public Prosecutor v Nitak Mangilonde Tanganis [1982] PNGLR 299

The State v Rex Lilu [1988-89] PNGLR 449

The State v Emp Mek [1993] PNGLR 330

Acting Public Prosecutor v Aumune and Ors [1980] PNGLR 510

The State v Albert Monja [1987] PNGLR 447

John Elipa Kalabus v The State [1988] PNGLR 193

Kesino Apo v The State [1988] PNGLR 182

Legislation

Criminal Code (Ch262) s328(5)

Motor Traffic Act (Ch423) s18

The Criminal Law (Compensation) Act 1991

Representation:

Counsel/Representative:

Informant: Sgt. Sukena

Defendant: Accused in person

Lawyers/Representative:

Informant: Police Prosecutor Division

Defendant: Accused in Person

30 April 1999

S LENALIA PM:

N1>[1]      Thomas Joseph Gunua pleaded guilty to two (2) counts of dangerous driving causing the deaths of John Ande Gunua and Isidor Kumusua both male persons on 13 November 1998. The charges say that on the date of the two offences the defendant drove a motor vehicle, a Toyata hilux Reg No KAB 420 dangerously upon the public street towards Kimbe Hoskins highway on the Dagi bridge and thereby caused the deaths of the two deceased. The charges are brought pursuant to s328(5) of the Criminal Code. Upon arraignment the accused pleaded guilty to both charges.

N1>[2]      The facts of the two cases are that the defendant had taken passengers through the day and was returning from the Garu market and his proposed destination was Sarakolok. At the Dagi Bridge crossing, another vehicle was coming from the other direction. The later vehicle government owned Reg No ZGQ 869 6000 Flat Top truck according to the investigating officer was stationary on its side of the road after noticing that the defendant's vehicle was on high speed with his high beams on. The defendant's version is also that the on coming vehicle also had its high beams on. The facts further reveal that the defendant was cruising on a very high speed, came directly on to the front of the stationary vehicle and had a head on collision. Two witnesses statements and that of Ruben Tokaur and Michael Korugun show that the defendant had consumed liquor and had a strong smell of liquor and his eyes were watery and blood-shot.

N1>[3]      Sergeant Wirrenu Willie says in his affidavit that the 6000 Flat Top owned by Department of Works in Kimbe had been stationary and observed that it was pushed reversed for 2.19 metres back from the point of impact. Because of the impact the vehicle driven by the Department was very seriously damaged with the whole bonnet region unrecognisable. The 2.19 metres reversed skid marks of the stationary vehicle imports the mode of driving suggestive of the defendant cruising on a very high speed.

N1>[4]      The post mortem examinations conducted on the two deceased show that deceased John Ande Gunua suffered the following injuries—

·               laceration and bruises to left face lumber region

N2>·         fractured left femur

N2>·         fractured left femur zygomatic bone

N2>·         displaced cervical spine

N2>·         fractured left temporal bone.

N1>[5]      Deceased Isidor Kumusua suffered the following—

N2>·         fractured left femur

N2>·         fractured occipital bone

N2>·         deep laceration left lumbar region 10cm x 5cm x 5cm

N2>·         involving the bowel fractured displaced lumber.

N1>[6]      The Provincial Works Manager or his representative at Kimbe compiled a mechanical inspection report showing the following aspects on the vehicle driven by the defendant—

N2>·         the right hand side fender damaged

N2>·         the right hand door was damaged

N2>·         front windscreen was broken

N2>·         rear windscreen was broken

N2>·         the cabin was damaged

N2>·         front grille was damaged

N2>·         the head lamp assys damaged

N2>·         the bonnet was damaged.

N1>[7]      I had the benefit of hearing the accused in allocutus and the prosecutor in reply. The defendant submitted that he had paid compensation to the relatives of Isidor Kumusua. The total amount already paid is K7,500.00 cash and the relatives still demand another K12,000.00.

N1>[8]      The Defendant asked the Court to take this into account as well as the fact that he is the first offender. In reply the prosecutor said that out of the K7,500.00, K2,000.00 is actually a "Bel Kol Moni" the requirement of a Provincial Government Law or practice in this Province and the Court must consider a deterrent sentence. It is established law that the standard of proving a dangerous driving causing death is an objective test. That is to say it is fixed in relation to the safety of other road, users as well as those in the vehicle in issue. The State v John Koe [1976] PNGLR 562. The fault on the part of a driver must involve a failure or a falling below the care and skill of a competent and experienced driver: Karo Gamoga v The State [1981] PNGLR 443.

N1>[9]      The defendant is charged under s328(1)(5) of the Criminal Code which speaks of a "speed" or "manner" which must be dangerous to the public. I find from the facts that the defendant was cruising at very high speed.

N1>[10]    Although the defendant's allegation that he was going at 60 mph, does not match with description given by the police witnesses statement which showing 2.19 metres reversed skid marks caused to the stationary truck. By contrast, had the 6000 flat top been in motion, the defendant's vehicle which is much lighter would have been a right off as well. I do not think, the defendant would be alive today. The two passengers statements Michael Korugun and Reuben Tokaur show that prior to the accident the defendant had consumed liquor and when they were picked at Gigo to Garu market they had observed that the defendant had a very strong smell of liquor and his eyes were blood-shot and watery.

N1>[11]    The investigating officer investigating the accident found in the vehicle driven by the defendant that there were empty bottles of beer as well there was a bottle of jungle juice. The law prohibits drink driving see s18 Motor Traffic Act (Ch423). Yet so many drivers take the risk upon themselves. The impact caused much damaged to the vehicle driven by the defendant. This was the resultant effect of the allegation of the defendant driving on a very high speed. It was said in Karo Gamoga's case that factors like high speed, driving under intoxicating liquor, cutting corners and such other examples of reckless or deliberately taking unjustifiable risks are all aggravating circumstances. It is my finding that the defendant was intoxicated and had apparently cruised at very high speed than ran into the stationary vehicle on the side of the on coming vehicle.

N1>[12]    Mr Benjamin Musu Plant Inspector at National Works at Kimbe was the driver of the Toyota 6000 flat top driving towards Dagi bridge said, he was some fifty metres away from the bridge when he noticed that an on coming vehicle was on high speed with its high beams. Mr Musu signaled by flashing his high beams then to low beams but to no avail. He applied his left signaled light then pulled up to his left and stopped with his engine running. Mr Musu realised that as soon as he had stopped the defendant's vehicle got on to the bridge and the edge towards Nahavio, the defendant's vehicle went directly at the Stationary truck and collided into the right front mudguard pushing the flat top back some 2.19 metres. Defects identified on the flat top were:—

N2>·         the right hand front mudguard was bent

N2>·         the right hand door panel bent

N2>·         the right front tray bent

N2>·         right side front tray guard was bent.

N1>[13]    The law empowers the courts of this Nation to order compensation whenever a person suffers injuries or where damaged to property has been caused. The Criminal Law (Compensation) Act 1991 says that whenever compensation is desired, it is an additional discretionary factor the Court may order in addition to a formal punishment. The Supreme Court said in Acting Public Prosecutor v Nitak Mangilonde Tanganis [1982] PNGLR 299 that if an accused wishes to rely on compensation as a mitigating factor, the defendant bears the onus of proving such custom actually existed. In The State v Rex Lilu [1988-89] PNGLR 449 it was decided that customary compensation must not be taken and accepted as a substitute for the formal and institutionalised punishment. Woods J held in The State v Emp Mek [1993] PNGLR 330 that customary compensation may be taken into account on sentence. A clear statement on the role of custom was made in Acting Public Prosecutor v Aumune [1980] PNGLR 510 or 541 where his Honour Kapi J (as he then was) said that a customary punishment may assist the Court in deciding whether the defendant should receive more or less punishment as the case may be.

N1>[14]    A number of mitigating factors must be mentioned on behalf of the defendant. First, he pleaded guilty to two (2) serious charges of dangerous driving causing multiple deaths. It has been said that a guilty plea is genuine credit: The State v Albert Monja [1987] PNGLR 447. It has also been said that at the same time that a guilty plea is in a serious charge does not exonerate an offender from criminal culpability nor does it alleviate an offender from being sentenced to a term of years. Kalabus v The State [1988] PNGLR 193.

N1>[15]    Aggravating circumstances of the instant case involves the following. The offences charged are actually criminal negligence. I find from the facts that the defendant drove dangerously in that he was reckless, he drove at very high speed. He had consumed liquor prior to the accident. This is evident from statement of witnesses. Michael Korugun and Ruben Tokaur. These two witnesses also observed that the defendant had been apparently speeding. I also find that the Toyota flat top was stationary when the defendant ran into it's head on which such force that it caused the stationary vehicle to reverse some 2.19 metres. This is evident from skid marks taken by the investigating officer in this case. What is clear is that from this accident two precious lives are lost forever and whatever punishment that the Court shall shortly pronounced shall not assist to bring those lives back. The maximum penalty for this offence is an imprisonment term of five (5) years.

N1>[16]    The accused submitted that the deceased in GFC No 2/99 is his brother. The court also takes this into consideration. In Kesino Apo v The State [1988] PNGLR 182. The Supreme Court said that the loss of a relative is self inflicting in that the killer may loose a warrior or a contributor to payment of bride price or compensation or an helper in time of tribal warfare. It is a fact that the loss of a close relative will be cherished for a long time. In sentencing the defendant, I must say, this case must be distinguished from a case of heedlessness which would normally attracts a non custodial sentence. The case of the defendant involves recklessness, a dangerous driving without drive care to other road users and his own passengers. I sentenced the defendant in the following terms:

N1>[17]    Count 1: (GFC No. 2/99):

Defendant is convicted and sentenced to 9 months imprisonment in hard labour.

N1>[18]    Count 2: (GFC No. 3/99):

Defendant is convicted and sentenced to twelve (12) months imprisonment in hard labour. This sentence shall be served cumulatively upon the sentence for count 1.

N1>[19]    The Defendant shall serve a cumulatively total of one (1) year, nine (9) months in hard labour.

N1>[20]    Orders accordingly.