N6016

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 290 of 2014

THE STATE

-V-

JERRY JAVIGUT

Wewak: Geita J
2015: April 20, 23

CRIMINAL LAW - Guilty Plea- Particular Offence, Dangerous Driving Causing Death – Criminal Code Act s328 (5) - Accident was unavoidable and was not one of deliberate risk taking.

CRIMINAL LAW - Dangerous driving- death resulted- first time offender- early guilty plea – victims partly contributed to the accident – No means assessment report provided –2 years, wholly suspended- generous compensation of K5000.00 awarded under Criminal Law (Compensation) Act 1991.

Cases Cited

The State v Iparu (2005) N2995
The State v Papen (No.2) [2009] PGNC 58 
The State v Soma (2006) N4480

Counsel

Mr. Paul Tusais, for the State
Mr. Johnson Malambaul, for the prisoner

23 April 2015:

JUDGMENT ON SENTENCE

1.	GEITA J: Upon arraignment the prisoner, aged 41 pleaded guilty to one count of dangerous driving causing the death of a child.

Brief Facts

2.	The facts as agreed by the prosecution and defence on the depositions for the guilty plea are as follows. On 16 October 2013, 3.30 pm the prisoner was driving a Toyota Land Cruiser registration JAB 690 towards Wewak from Angoram station. He had been driving since very early hours and neglected to take sufficient rest before driving out of Angoram. As a result he fell asleep and the vehicle ran off the road killing the deceased child instantly. 

Allocutus

3. When you were invited to tell court on matters you wanted court to take into account in your favour you said you were sorry for taking up the courts time. You said you were also sorry to the victim's relatives and to your family for the hardship they faced due to compensation payments made. You told court that it was first time and you asked for leniency. 

You are 41 years old and married with four children aged between 4 years and 16 years. You come from the west coast area in East Sepik Province. Immediately after the accident your family members contributed some K20, 000 as compensation to the deceased's relatives. At the time of the incident you were employed by Jam Hire Car however now suspended due to the court proceedings. 

Antecedents

4.	No prior convictions were recorded against you by the State.

Mitigating factors are:

5.	a) 	The prisoner pleaded guilty;
b)	Compensation paid to the deceased persons families;
c)	First time offender;
d)	Genuine remorse shown;
e)	No prior convictions.

The aggravating factors are:

6.	a)	One death resulted, a school age child.

Defence submissions

7.	Your Lawyer Mr Malambaul submitted on your behalf that yours was work related and you carried out the directions of your employer resulting in this accident. He submitted that only one death occurred and you were not intoxicated. Furthermore, you were not driving at high speed. Your fault he said: you failed to get enough rest causing you to fall asleep and drove off the road. Mr Malambaul said when some of these factors present themselves courts tend to go for the maximum sentence. He said in your case none of those factors were present and submitted that a sentence between 2 – 3 years be considered to be wholly suspended with conditions. The court was invited to exercise its discretion under section 19 of the Code. 

1. State v Iparu [2005] N2995. 18/10/2005 Kandakasi J	Guilty plea-Prisoner unlicensed-inexperienced-driving under influence of liquor- 4 deaths	3 years imprisonment	
2. State v Papen (No.2) [2009] PGNC 58. 21/05/2009 Makail J	Three counts-dangerous driving causing grievous bodily harm – dangerous driving causing grievous bodily harm – unlawful use of motor vehicle concurrent- alcohol use.	3 yrs; 2 yrs and 1 yr-served concurrently.	
2. State v Soma [2006] PGNC 71;N448.23/08/2006. Cannings J	Guilty plea – DDCD-defective vehicle-excessive speed-presence of alcohol	4 years,2 years suspended with conditions	

8.	The mitigating and extenuating circumstance far outweigh the aggravating factors as founded in Soma's case referred to above. The court was invited to exercise its discretion under Section 19 of The Criminal Code Act and impose a 2 years sentence to be wholly suspended with conditions. 

State Submissions

9.	Mr Tusais concedes to defence submissions and decided against making submissions. 

Decision making process

10. No pre sentence report nor means assessment report was requested for and ordered. Presumably both counsels do not take any serious issue with sentencing and have left it to the court to exercise its discretion on all information before me. Some of these include the payment of K20, 000.00 paid to the relatives of the deceased immediately after the accident. Courts have maintained all along that the payment of compensation must not be used to mitigate the outcome of sentence. 

11. Your submission for leniency has been considered. I acknowledge that death has resulted from this crime. The prisoner was a first time offender, paid compensation, co-operated with police. 

Sentence

12.	Having weighed all the facts before me, I am of the view that this is an appropriate case in which to suspend the entire sentence. I am satisfied that the prisoners mitigating factors does outweigh his aggravating factors. In the exercise of my discretion under Section 19 Criminal Code Act, I consider a sentence of 2 years to be appropriate. I will wholly suspend the sentence with conditions. Furthermore you are disqualified from holding or obtaining a driver's licence to operate a motor vehicle within a period of 2 years commencing today. A copy of this order shall be transmitted by the Assistant Registrar Wewak to the Commissioner of Police in Port Moresby. 

Sentence accordingly,

Lawyer for the State 		 Public Prosecutor
Lawyer for the Accused		Public Solicitor