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State v Uwantuna [1989] PGNC 9; N726 (14 June 1989)

Unreported National Court Decisions

N726

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V.
AINA UWANTUNA

Mount Hagen

Woods J
5 June 1989
14 June 1989

CRIMINAL LAW - Sentence - Criminal - Dangerous Driving Causing Death.

Cases Cited:

Karo Gamoga v. The State 1981 PNGLR 443

Counsel:

Mr Everinghan for the State

Mr Poka for the Defendant

JUDGEMENT ON SENTENCE

WOODS J:

ON SENTENCE

Aina Uwantuna has been found guilty of dangerous driving causing death. He was driving a large FUSO Highway truck along the Highlands Highway near Aviamp out of Hagen when he strayed across to the wrong side of the road and collided head-on with a PMV, a 15 seater ISUZU bus. In the collision the truck pushed the bus backwards for 22 metres. 12 passengers in the PMV were killed.

The advent of the motor vehicle has introduced an element in the community capable of considerable unintentional personal and property damage. It has been necessary therefore to attempt to induce the highest possible standards of care and skill in driving and the Criminal Law has been used as an appropriate control mechanism in certain areas of the use of the motor vehicle.

This means that the ordinary road user is subjected to the daily risk of criminal penalties for the mere negligent or unskilful use of a motor vehicle. Drivers should continually be aware of this.

When convicting one is not just looking at a situation which was dangerous, one has found fault on the part of the driver causing that situation. Fault does not necessarily involve deliberate misconduct or recklessness, nor does it involve moral blame. At its lowest fault involves a failure or falling below the care or skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case. Such a fault may only be slight or a momentary lapse.

In the case before me there was fault in drifting across from his correct side of the road. Whilst I must accept that this case is not one of deliberate risk taking or recklessness exhibiting circumstances of aggravation it does involve a person in control of a very large vehicle on a busy highway and I am entitled to place on him a high degree of responsibility such that even a minor lapse results in blameworthy conduct.

I am aware of the case of Karo Gamoga v. The State 1981 PNGLR 443 where on varying the sentence in that case the Supreme Court set down guide-lines on sentencing in cases of dangerous driving causing death when it said that where none of the reprehensible features normally associated with dangerous driving cases was present a gaol sentence may be inappropriate.

Whilst I have said that there was no excessive recklessness or excessive speed or excessively aggravating circumstances nevertheless the defendant was in control of a vehichle which had the potential of inflicting great harm. So he bore a great responsibility and drivers must be aware of this. His carelessness which amounted to dangerous driving in the circumtances has resulted in the death of 12 people. There is very little that can be said in mitigation of that.

Each case must be considered on its own facts and in this case I am unable to consider a non-custodial sentences. Whilst I will not class it in the manslaughter range because it does not include elements of recklessness or excessively aggravating circumstances I nevertheless fell that the circumstances do warrant a term of imprisonment.

I sentence you Ainu Uwantuna to 2 years Imprisonment with Hard Labour.