N4175

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 821 OF 2008

THE STATE

V

MERO JIM GOROA

Mendi: Makail, J
2009: 25th March &
2010: 04th & 09th November

CRIMINAL LAW - Sentence - Guilty plea - Dangerous driving causing death - First offender - Remorsefulness - Co-operation and admission of offence - Payment of substantial compensation - Unroad worthy motor vehicle - Gross negligence - Prevalence of offence - Pre-sentence report - Non custodial sentence recommended - Head sentence of 2 years imprisonment imposed - 1 year suspended - Criminal Code - Sections 19, 328(2)&(5), 420 & Schedule 2.

Cases cited:

Goli Golu -v- The State [1979] PNGLR 653
The State -v- Philip Iparu (2005) N2995 
The State -v- Eric Papen (No 2) (2009) N3639
The Public Prosecutor -v- Sima Kone [1979] PNGLR 294
The Public Prosecutor -v- Willy Moke Soki [1977] PNGLR 294
Karo Gamoga -v- The State [1981] PNGLR 443

Counsel:

Mr J Kesan, for the State
Mr F Kirriwom, for Offender

9th November, 2010

SENTENCE

1. MAKAIL, J: The offender pleaded guilty to one count of dangerous driving causing death under section 328(2)&(5) of the Criminal Code. The offence is one of those offences which can be tried as an indictable offence before this Court or summarily before the District Court by virtue of section 420 and schedule 2 of the Criminal Code at the election of the Public Prosecutor. In this case, the offender having being charged by the police for this offence was committed to the National Court to be tried. The maximum penalty therefore, is 5 years imprisonment.

2. Section 328(1),(2)&(5) states as follows:

"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) ………...

(4) ………...

(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".

BRIEF FACTS

3. The facts giving rise to this offence are; on 03rd January 2008 between 3:00 and 4:00 pm, the offender was driving a motor vehicle on a public road between Ialibu and Kisenopoi. The motor vehicle was mechanically defective and also unregistered. In the motor vehicle were passengers. Two of the passengers were in the front cabin with him while the others including the deceased Steven Pende Wami were at the back trail. He stopped at Kendal village and repaired the motor vehicle and a punctured tyre.

4. After the repairs, he drove out to collect firewood. On the way, he drove down hill on neutral gear. The motor vehicle ran down hill at high speed and the engine ceased. The motor vehicle hit a pot hole on the road and the key fell to the floor. The steering wheel got jammed and he could not control the motor vehicle. The motor vehicle reached a drain and realising the danger, he applied the brake. The motor vehicle made a sudden complete turn. The sudden turn forced the motor vehicle to throw the passengers at the back trail including the deceased off the motor vehicle. The deceased landed on the ground and the back trail of the motor vehicle landed on him. He sustained a fractured skull and bruised ribs. As a result of these injuries, he died.

OFFENDER'S ALLOCUTUS

5. I take into account what the offender said on allocutus. He said he was sorry for what he did to the Court, his relatives, the deceased and his relatives. He said the deceased was a relative of his and he did not mean to kill him when they had the accident. It was purely an accident. He has 3 children; one of them is attending school while the other two are in the village. He surrendered to the police and while in custody, relatives of the deceased burnt his four houses, motor vehicle and motor bike in the village. He was fined K600.00 by the District Court for driving an unregistered motor vehicle. He also paid compensation to the relatives of the deceased.

PARTIES' SUBMISSIONS

6. In terms of submissions, for the offender, I take into account his plea of guilty to the charge and a first offender. This has saved the Court a lot of time and money to conduct a trial to determine his guilt. At the time he drove and had the accident, he was not under the influence of liquor. He did not collide with any vehicle. It was purely an accident as he ran off the road and the victim who happened to be one of the passengers sustained injuries in the accident when he was thrown off the moving motor vehicle. Further, while it is true that the offender drove a mechanically defective motor vehicle, it was not the cause of the accident but rather the careless driving of the offender.

7. I also take into account his full co-operation with the police by his admission to the offence. He and his relatives paid compensation to the relatives of the deceased. The compensation comprised of 16 pigs, valued at a total sum of K10,400.00 and cash of K6,000.00. He spent 3 days in Mendi Police Station cell and a further 5 months at Buihebi CIS prison before being released on bail.

8. I also take into account the pre-sentence report prepared at the offender's request. The report strongly recommended a non custodial sentence for the offender where the offender can be placed on probation and report to the probation officer once a month during the probationary period. I also take note of the means assessment report submitted by the probation officer at the offender's request. It stated that the offender has started full time work and would need at least 2 years to save money to pay further compensation to the relatives of the deceased. For these reasons, a sentence of up to 2 years imprisonment and wholly suspended was submitted by his counsel.

9. Counsel for the State pointed out that there are three serious aggravating features in this case which make this case a serious one. First, a person's life has been lost as a result of the actions of the offender. Secondly, there is an element of recklessness on the part of the offender because he decided to drive an un-roadworthy motor vehicle. He knew it was un-roadworthy and made a deliberate decision to drive it, therefore, it cannot be said that he made an error of judgment. Thirdly and finally, the offence is prevalent. All these make the case a serious one which should attract a head sentence of 3 years imprisonment. As to the question of suspension of the head sentence, he submitted that it is left to the discretion of the Court.

REASONS FOR DECISION

10. When the Court is considering an appropriate sentence for an offender, it exercises its discretion by virtue of its powers conferred by the Criminal Code, Ch 262 or other statutes. In this case, the Court is asked to decide a sentence by exercising its powers under sections 19 and 328(2) &(5) of the Criminal Code, Ch 262. In exercising that discretion, one of the principles of sentencing that the Court takes into account is that, the maximum penalty is reserved for the worst case under consideration: see Goli Golu –v- The State [1979] PNGLR 653.

11. Having regard to the mitigating and aggravating factors set out above, I am of the view that this is not a serious case of dangerous driving causing death. As such, the maximum penalty of 5 years imprisonment is not appropriate in this case, but at the same time, it must not be forgotten that a person's life has been lost as a result of the offender's dangerous driving. That person is gone for good. He cannot be brought back to life. His death is a great loss to his parents, brothers, sisters and relatives. It is a tragic death and his parents, brothers, sisters and relatives will live without him for the rest of their lives. 

12. Offenders who drive mechanically defective motor vehicles should be reminded of the duty to their passengers when driving them; that is, the duty to ensure that the motor vehicles are road worthy before driving them. Faulty and mechanically defective motor vehicles are some contributing factors of the high rate of motor vehicle accidents in the country. The offender in this case drove a mechanically defective motor vehicle with passengers and in as much as I'd like to believe that it was an accident due to an error of judgment on his part, I do not believe that it was such a case. On the other hand, I find that the offender was reckless and negligent because he knew that the motor vehicle was mechanically defective and should not have driven it. Yet he went ahead and drove it. Further, he took passengers with him, one of them being the deceased.

13. In addition to that, I consider that manner in which he drove the motor vehicle was simply careless. He was supposed to drive slowly downhill, but instead, he drove downhill on neutral gear at high speed. When the motor vehicle hit the pothole on the road, the key fell off the ignition key hole and the steering wheel got jammed. He was unable to control the motor vehicle and when he applied the brake, the motor vehicle made a sudden turn. That resulted in deceased and others being thrown off the back trail and the deceased sustained injuries and died. In my view, the accident could have been avoided had he drove downhill at reduced speed.

14. I find this case not as serious as the case of The State -v- Philip Iparu (2005) N2995, where Kandakasi, J sentenced the offender to 3 years imprisonment in hard labour following his plea of guilty to a charge of dangerous driving causing death. The offender was drunk and ran off the road at Wara Lai near Wapenamanda in the Enga Province where four passengers sitting at the back trail of the truck were thrown off and fell onto the big rocks in the river. They sustained severe head injuries and died instantly. 

15. I also find this case not as serious as the case of The State -v- Eric Papen (No 2) (2009) N3639, where I sentenced the offender on his guilty plea to 3 years imprisonment for dangerous driving causing death. The offender was drunk when he drove the motor vehicle and crashed. The deceased who was a passenger in the motor vehicle sustained serious injuries and died. In the present case, the offender was not drunk and this factor operates in his favour.

16. The factual circumstances leading to the motor vehicle accident in the case of The Public Prosecutor -v- Sima Kone [1979] PNGLR 294 are slightly different to those in the cases of Philip Iparu (supra) and Eric Papen (supra) although the offenders in these three cases were drunk at the time of the accidents. In Sima Kone's case (supra), Mr Kone was the driver of a motor vehicle when he was drunk and asked to be driven by others was forced to drive despite his reluctance. He collided into a tree resulting in the death of his child and wife who were passengers in the vehicle at the time. The National Court deferred sentence and in the meantime ordered certain hours of work at a hospital for two years. On appeal against that decision, the Supreme Court quashed the decision on sentence and substituted it with a custodial sentence of 18 months. 

17. In the Public Prosecutor -v- Willy Moke Soki [1977] PNGLR 294, the Supreme Court held that a sentence above 6 months imprisonment was appropriate because 6 people died out of the offender's dangerous driving. However, because the condition for recognizance in the sentence imposed by the National Court had expired at the time of the Court's decision, it did nothing about the sentence. There, the Court did hold that, the number of deaths out of dangerous driving causing death was an aggravating factor which a sentencing Court should take into account. In Karo Gamoga -v- The State [1981] PNGLR 443, the Supreme Court on appeal found that the appellant misjudged the speed of the other vehicle (an ambulance) and there was no criminal negligence. Only one out of three people in the vehicle at that time died. He was sentenced to 12 months imprisonment less time spent in custody. 

18. The cases of Sima Kone, Willy Moke Soki and Karo Gamoga (supra) were all decided in the late 1970s and early 1980s. Since then, the offences of dangerous driving causing death and grievous bodily harm have increased. In most of the cases of dangerous driving causing death and grievous bodily harm, driving at excessive speed is a very significant contributor. It means therefore that, a sentence much higher than those imposed in the late 1970s and early 1980s is warranted. Further, drink/driving is another contributing factor as in the cases of Philip Iparu (supra) and Eric Papen (supra). A higher sentence is necessary if the desired purpose of serving personal and general deterrence, which the above Supreme Court decisions clearly speak of, for the safety of the society, is to be achieved.

19. In this case, drink/driving was not the cause of the accident. It was driving at excessive speed and a un-road worthy motor vehicle. It is common knowledge that many lives are being lost or people have been injured in motor vehicle accidents everyday. These are innocent people who die or suffer as a result of the dangerous driving of some inconsiderate drivers and it is about time the Courts take a tough stand against those irresponsible drivers. The offender in this case is a good example of an irresponsible driver. He made a deliberate decision to drive a un-road worthy motor vehicle with passengers in it. He made a deliberate decision to drive at high speed down hill. As a result, he lost control of the motor vehicle and the motor vehicle spun in a 90% circle causing the deceased to be thrown off the back trail and sustained injuries.

20. In my view, though the payment of compensation of 16 pigs and K6,000.00 to the relatives of the deceased by the offender and his relatives is substantial, it cannot reduce the gravity of the offence. This is because his careless and negligent actions have caused a person's death and he must be punished accordingly. As I observed in Eric Papen's case (supra):

"Whilst payment of compensation is a relevant factor, I am of the view that compensation should not be used by offenders like the Appellant in this case to escape criminal responsibility. To my mind, it is one of the mitigating factors which is be weighed against other competing interests or factors, such as the prevalence of the offence and the nature and extent of the injuries sustained by the victim(s) of the accident.

For far too long, offenders have been getting away from the hands of the laws because victims and relatives of victims gladly accept compensation as a means of peace and harmony between the offenders and their line and the victims and their line. This must stop. It is a bad culture and practice which will not help our society in terms of reducing the cases of motor vehicle accidents that occur in this country. And for the victims and their relatives, they should be reminded that compensation cannot act as a substitute for the penalties that are provided under the law, like the Criminal Code. That means, offenders must be brought before the Courts and be punished according to law. If it means the offenders must serve an imprisonment sentence, so be it."

21. For these reasons, in my view, the payment of compensation does not significantly reduce the seriousness of the offence. As for the other mitigating factors, I accept that he was remorseful, co-operated with the police during the investigations and admitted the commission of the offence. I also accept that he was fined K500.00 by the District Court for driving an unregistered motor vehicle however, the prevalence of this offence, driving at high speed and a un-road worthy motor vehicle together with the death of the deceased are serious aggravating factors operating against him. In the end, I have decided that a head sentence of 2 years imprisonment is appropriate in this case. Having regard to the pre-sentence report, I have given some thought to the question of suspension of the sentence either wholly or partly and I have decided that the head sentence of 2 years imprisonment be partly suspended. A partly suspended sentence is appropriate because it cannot be ignored that the death arose from his carless and negligent actions. 

22. I make no order for additional compensation because in my view, the payment of 16 pigs and K6,000.00 is sufficient compensation to the relatives of the deceased. Further, to order him to pay additional compensation will be an extra burden to him given that he does not have readily available funds to pay compensation as highlighted in the means assessment report.
 
ORDERS

23. In the end, the offender is sentenced to 2 years imprisonment. I suspend 1 year and place him on good behaviour bond. The time spent in pre-trial custody of 5 months and 3 days is deducted and he shall serve 6 months and 27 days imprisonment in hard labour. His bail monies shall be refunded forthwith. A warrant of commitment in those terms shall be issued shortly. 

Sentence accordingly.
_______________________________________ 
Acting Public Prosecutor: Lawyers for the State 
Public Solicitor: Lawyers for the Offender