DC 4090
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (GRADE 5 COURT) JURISDICTION]
GFC: 13 of 2013
BETWEEN
State
Informant
AND
Stewart Yareki
Defendant
KOKOPO: SLavutul
2012: 11th December, 2013: 14th March, 16th April, 03rd June, 05th July, 30th August, 22nd October, 08th December, 2015: 22nd, 26th January, 02rd, 03rd March, 30th April, 07th May, 10th June, 20th July, 18th August, 27th October, 23rd November, 2016: 08th, 09th February, 26th, 31st May, 03rd, 08th, 10th June, 29th July, 28th September, 27th October, 15th, 16th, 29th  November
CRIMINAL PRACTICE AND PROCEEDURE – Dangerous Driving Causing Death- Section 328 (2) (5) CCA – Plea of Guilty- Submissions on Sentence – Criminal Responsibility falls between heedlessness and recklessness.
Cases Cited
Karo Gamoga- v- The State [1981] PNGLR 443
References
Criminal Code Act
Counsel
Sgt Elizabeth Munap for Prosecution.
Public Prosecutor for the Defendant.

Sentencing
29th November 2016
SLavutul: The defendant Stewart Yareki was charged under Section 328 (2) (5) of the Criminal Code Act for Dangerous Driving Causing Death. It was alleged the defendant did on the 28th of November 2012 at William’s road Kokopo, East New Britain province; Papua New Guinea drove a motor vehicle to wit a Toyota Land Cruiser, white in colour registration number RAJ. 879 dangerously and thereby caused the death of one namely, Maria Gemma Paak, contravening Section 328 (5) (2) of the Criminal Code.
Facts
2. It was alleged the defendant did on the 28th  of November 2012 at about 2.30 pm was the driver of the motor vehicle a Toyota Land Cruiser, white in color bearing the registration number RAJ. 897. The defendant was driving from Rabaul way inbound Kokopo and was alleged to have been travelling at high speed on the outer lane as he was approaching Kokopo Village Resort, It was alleged he did not have any proper control of the vehicle and ran off the road to his left side hitting a female adult pedestrian who was on the side of the road who was trying to board a PMV. 
3. The matter was then reported to the police and upon investigation found that the victim and deceased was one Maria Gemma Paak who sustained serious injuries and died instantly at the scene of the accident.
4. On Friday the 07th of December 2012 the defendant was then invited to the Ulaveo Traffic Office where a record of interview was conducted which led to the arrest, charge and detention of the defendant and was later released on K500.00 bail.
Plea
5. The defendant did on the 07th of May 2015, after the charge was put to him entered a plea of guilty. The defendant totally agreed with the content of the statement of facts. He did not dispute the content and nature of the statement of facts. He did not raise any contention over the content of hand up briefs.
Verdict
4. Charge was proven plea and defendant was found to be guilty as charged.
Law
           5. Section 328. DANGEROUS DRIVING OF A MOTOR VEHICLE.
(1) For the purposes of this section–
“driving a motor vehicle on a road or in a public place dangerously” includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including–
(a) the nature, condition, and use of the road or public place; and
(b) the amount of traffic that–
(i) is on the road or in the public place at the time; or
(ii) might reasonably be expected to be on the road or in the public place;
“public place”–
(a) includes every place of public resort open to or used by the public as of right and any field, ground, park, reserve, garden, wharf, pier, jetty, market, passage or any other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, whether or not it is at all times so open; but
(b) does not include a track that is used for the time being as a course for the racing or testing of motor vehicles, and from which other traffic is excluded at the time.
(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.
Penalty: Subject to the succeeding provisions of this section–
On summary conviction–a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.
On conviction on indictment–a fine not exceeding K1, 000.00 or imprisonment for a term not exceeding two years, or both.
(3) If the offender has been previously convicted, on indictment or summarily, of an offence against Subsection (2) he is liable on summary conviction to a fine not exceeding K400.00 or to imprisonment for a term not exceeding 12 months, or both.
(4) If the offender has been twice previously convicted, on indictment or summarily (or once on indictment and once summarily) of an offence against Subsection (2), the court shall, on conviction, impose, as the whole or part of the punishment, imprisonment.
(5) If the offender causes the death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.
Antecedent
6. The defendant Stewart Yareki was aged 34 at the time of the commission of this offence. He was employed as by PNG Coalition against HIV & AIDS, he hails from Dobu Island, Esa’ala, Milne Bay Province. He has no prior convictions.
Address on Sentence
7. The defendant was assisted by Public Solicitors office, Kokopo Branch and submitted a written Submission addressing the court on sentence. The content of the submission draws the court to “what is the appropriate sentence to be given to the Defendant?”
8. It submitted the maximum penalty for Dangerous Driving Causing Death pursuant to section 328 (5) is 5 years, however, this is subject to section 19 of the Criminal Code Act for the court not to impose the maximum penalty but reserve it for the worse type of case.
9. It further submitted that this case (Yareki’s) is not the worse type of case to warrant the maximum penalty and that it supported its submissions with the following mitigating factors;
1. The defendant is a first offender.
2. It was a plea matter.
3. This has saved the court’s time and police money in calling in witnesses to give evidence.
4. He readily made admissions in the Record of Interview
10. The aggravating factor;
          1. The vehicle that the defendant was driving had some mechanical fault.
11. Defence added they support their submissions with the case of: Gamoga v State [1981] PNGLR 443, in which the Supreme Court distinguished between heedlessness and recklessness of driving. The Appellant had appealed against the custodial sentence given to him by the trial judge, in which the Supreme Court stated;
“In sentencing for the offence of dangerous driving causing death, whilst the need for public deterrence prevails over other factors, the sentence itself remains within the discretion of the court which ought to distinguish for the purposes thereof between cases of heedlessness or recklessness; i.e. between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other hand”.
12. Defence added the Supreme Court further discussed and distinguished between heedlessness and recklessness;
“However, despite the strictures in Willy Moke Soki (supra) of the usefulness to be made of cases and decisions in other societies, I think that there is a distinction between cases of heedlessness and recklessness or, expressed in another way, between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation, regrettably familiar, which so often characterize the more serious breaches of the section – high speed, intoxication, overtaking in the face of oncoming traffic, cutting corners, and other such examples of recklessness involved in deliberate taking unjustifiable risks: See per Jacobs J, in R. v. Hill [dccxi] 15. Another serious breach may be the person who drives a vehicle which he knows to be un-roadworthy or in a dangerous condition”. 
13. Defence stressed on behalf of the defendant that he was travelling at 70 kmph as he had issues with the hired vehicle from No. 1 Hire car which was crossed – hired from Travel Car. Defence added in argument the defendant did experience some faults in the vehicle when he was in Rabaul whilst delivering supplies in that the glasses were foggy, the key was hard to put into ignition and the steering wheel was shaky including a flat tyre and the defendant noticed further faults. He called No.1 Hire to inform them and he was advised that a vehicle was available and he would change the vehicle once he reached Kokopo from Rabaul.
14.  Defence added however, there were no vehicles available for him to change and due to his job requirements he continued to use the vehicle until the 28th November 2012. Defence argued the defendant lost controlled of the vehicle as he could no longer steer the vehicle. The vehicle missed the passengers and hit the deceased who was walking towards the PMV bus attempting to get on.
15. Defence submitted that the defendant was not drunk, neither was he speeding, the vehicle was insured, and the defendant was a licensed driver. Defence submitted the only aggravating factor would be that the vehicle had some mechanical fault through no fault of his. The defendant had informed No.1 Hire but they had ignored his requests to change the vehicle. However defence further stressed due to his job requiring the use of the vehicle, he continued on using it. 
16. Defence submitted that the defendant’s actions fall between heedlessness and recklessness however, more towards heedlessness. Defence concedes that there was a mechanical fault however, he did duly informed No. 1 Hire and was awaiting replacement.
17. In conclusion defence submits the defendant be given a non- custodial sentence of 4 years as the mitigating factors outweigh the aggravating factor. 
18. In its counter submissions prosecution reminds the court on the content of the statement of facts in which it claims reveals the particulars of dangerous driving as follows;
        (1). Excessive speed
        (2). Failure to keep the vehicle under proper control
        (3). Failure to keep a proper lookout, and
        (4). Failure to act reasonably when an accident appeared imminent 
   19. Prosecution in its submissions urges the court to consider the following as aggravating factors;
         (a). The defendant was only a visitor who had just arrived into the 
                province on Sunday 25th of November 2012.

          (b). The defendant was employed by PNG Coalition Against HIV & 
                  AIDS as a Condom Logistics Officer based in Port Moresby and 
                  had travelled into the province on business during the PNG Games.

           (c). From Sunday 25th November 2012 to the 28th November
                  2012 the defendant spent only 4 days in Kokopo

           (d). The defendant short stay in the province wasn’t sufficient enough to 
                  familiarize himself with the road construction, signs, bus stops, 
                  location of public places like the Kokopo Village Resort, 
                  BNBM Hardware and movements of the general public or road users 
                  at that particular location of the road within the Town area.

              (e). The defendant was driving at high speed on the outside lane. 
                   The defendant failed to take proper control of his vehicle as a result he 
                    ran off the road to his left hand side and hit the deceased. 
                    The deceased died instantly as a result of the impact from 
                    the defendant’s vehicle. The photographs are attached to the
                     Hand Up Brief now before the court clearly shows the 
                    injuries sustained by the deceased.

20. Prosecution draws the attention of the court the possible mitigating factors in that the defendant had pleaded guilty to the charge and that he has shown remorse for the crime he has committed.

21. Prosecution submits that the defendant having admitted to committing the offence and shown remorse the life of an elderly female adult was lost as a result of the accident. Prosecution reiterated although it is a fact that accidents are unplanned or unforeseen, in the present case an accident occurred and the defendant has pleaded guilty to the offence which resulted in the death on one Maria Gemma Paak. Furthermore, Prosecution submitted the deceased had a family and future to live unfortunately lost her life as a result of the defendant’s dangerous driving. 

22. Prosecution stressed having outlined the aggravating factors as opposed to the mitigating factors it submits that the aggravating factors outweighed the mitigating factors and further submits that a custodial sentence would be that of an appropriate penalty. Such would stand as a deterrent not only to the defendant but also to other drivers who carelessly drive on public roads without having considerations for other road users.

Deliberations

23. I have given careful consideration to both submissions and the facts before me. Having read and considered all submissions I am left with the question, “What is the appropriate sentence to be given to the defendant?”

24. Firstly, the mitigating factors are; the defendant is a first offender, he pleaded guilty to the charge, he did not waste courts time and state’s money in calling witnesses and he readily made admissions in the Record of Interview.

25. Secondly, the aggravating factors are; the defendant knew there were some mechanical faults with the vehicle specifically the vehicle’s steering wheel and he also noticed further faults on the vehicle as he claimed in his statement. A live was also lost as a direct result of the defendant’s actions and/or inactions.

26. I agree with Defence submissions as per the view in Gamoga –v- State in that the defendant’s action falls between heedlessness and recklessness. I am satisfied the defendant was a license driver and was not drunk at the time of the accident.

27. Now the definition of heedlessness is basically showing a reckless, lack of care or attention to a situation. In this case the defendant having been aware of the steering wheel problem on the vehicle what care did he take even after he had reported the matter to No 1 Hire Cars the owners of the vehicle or the agents of the owners?

28. Did he take any precaution? No he continued to use the defective vehicle, did he display any warnings using his lights or signals to alert other road users that he was having some problems with the vehicle especially when you have a vehicle who has an issue with its steering wheels whilst on the main road. Such warnings would warn others to keep clear or be ready for any unforeseen circumstances. Whilst entering the Kokopo town boundary he should have reduced speed lower than 70 kmph which he claims to have been travelling on. 

29. The defendant knew the vehicle was not roadworthy and in a dangerous condition which may amount to a serious breach as per the view by Jacobs .J. in Rv Hill. The defendant having known the fact that the vehicle was not road worthy and in a dangerous condition because of its faulty steering wheel certainly aggravates the penalty and more so towards recklessness rather than heedlessness as opposed to Defense’s submission.

30. Furthermore despite the defendant’s claim of traveling at 70 kmph there were no corroborative evidence to prove his claim. However I am of the view the defendant was travelling at excessive speed as demonstrated by the extensive damage to the vehicle and also the injuries sustained by the deceased.

31. I therefore agreed with Prosecution’s submissions that this case warrants a custodial sentence as oppose to Defence’s submissions for a non- custodial sentence. I consider a custodial sentence is the appropriate penalty in this case so as to deter the defendant including others.

Order

1.	Defendant is convicted and sentenced to 6 months in hard labour pursuant to Section 328 (2) of the Criminal Code Act.
2.	Defendant is convicted and sentenced to 12 months in hard labour pursuant to Section 328 (5) of the Criminal Code Act
3.	Sentences to be served concurrently.
4.	However one year is suspended and the defendant to serve only six (6) months in hard labour
5.	Defendant’s bail monies be refunded.

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