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State v Penunu [2017] PGNC 139; N6804 (10 May 2017)

N6804

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 6 of 2017

THE STATE

V

LAWSON PENUNU
Defendant

Popondetta: Liosi, AJ

2017: 3^rd & 10^th May

CRIMINAL LAW – Dangerous driving causing death S. 328(2)(5)Criminal Code Act – Deceased child 5 years old – Ran across road in front of oncoming bus – Guilty plea – Mitigating and Aggravating factors considered – 2 years imprisonment suspended on conditions.

Cases Cited:

State v. Joseph Kalasim (unreported Judgment CR 1405/14, 2015)
State v. Nepo [2016] N6178
State v. Philip Samson [2016] N6347

Counsel:

K. Umpake, for the State
L. Mamu, for the Prisoner

DECISION

10^th May, 2017

1. LIOSI AJ: On the 3^rd day of May 2017, I convicted the offender on 1 count of dangerous driving causing death of the deceased Susie John, a female child aged 5 years old. This was after reading the depositions and satisfying myself that the conviction was safe.

2. On arraignment the offender pleaded guilty to the following facts. The offender is the owner of a Toyota 25 seater coaster bus registration number LBP - 757. Between 3 – 4 pm on 28^th December 2015, the offender was driving towards Kokoda along the main Kokoda road from Popondetta loaded with passengers. As he approached a location called Pekuma Base near Huvivi Village, a 15 Seater PMV bus was parked on his left side dropping off passengers. The State alleges that as he approached the stationary bus, he failed to slow down and take extra care before passing the stationary bus. As a result he ran into the deceased, a 5 year old girl who had disembarked from the 15 seater bus and was crossing the road to the other side. The deceased sustained severe head injuries from which she died.

3. Under Section 328(2)(5) of the Criminal Code, the maximum penalty for the offense is 5 years. However, the law also states that maximum penalties are normally reserved for the worst category offences as held in the leading cases of Goli Golu and Ure Hane. Each particular case has its own peculiar circumstances which determines its sentence.

4. My task now is to determine the appropriate penalty for you. I start by determining whether the circumstances of your case justify the imposition of the maximum penalty of 5 years imprisonment. If not than the sentence that is warranted by the circumstances of your case.

5. To assist me I consider various matters. They include your personal particulars, your allocatus, submission by your lawyer and State lawyer, circumstances under which you committed the offence, mitigating and aggravating factors and comparable judgments.

6. You are from Agenahambo Village, Popondetta in the Oro Province. You are 33 years old and married with 5 children. You are self-employed. You attended grade 6 at Agenahambo Primary School and you are a member of the Anglican Church.

7. On allocatus you said, On 28^th December 2015, you loaded passengers and was on your way to Kokoda. You arrived at Pekuma Base saying the road was straight and clear. You saw a 15 seater bus parked. The right side was clear so you put the signal on to turn right. As you were sitting on the right hand side you looked ahead and you were surprised to see a little girl running infront of the bus. You were shocked and you swung the steer to the side to avoid hitting the girl but it was too late. You said the bus crew side of the bus hit the girl causing her to fall two metres in front of you. You also said her family told you it was an accident. You then drove to your house and parked the bus. The Police came and arrested you later on.

8. Your lawyer submits your case is not the worst case of its kind and so the maximum penalty does not apply to you. He submits in mitigation the following. You cooperated with Police by pleading guilty. Although you did not specifically say sorry a guilty plea nonetheless is indicative of been remorseful, you have no priors and I note that the relatives took it as an accident. This is important as it goes to explaining the situation on the ground in the village.

9. Your lawyer has further cited a number of comparable cases to assist me. In the case of the State -v- Philip Samson (2016) N6347, a sentence of 2 years was wholly suspended. In the State -v- Joseph Kalasim (2015) unreported Judgment CR 1405 of 2014), a sentence of 2 years was suspended and the offenders licence was suspended for 3 years. In the State -v- Nepo the prisoner was indicted on 2 counts of dangerous driving causing death. A sentence of 5 years was wholly suspended and the prisoner was disqualified from driving for 5 years.

10. In response, the State concedes to submissions by the defence and says a 2 year suspended sentence is appropriate.

11. I have considered the comparable cases cited which seem to support a suspended sentence. In particular, I refer to the case of State -v- Nepo [2016] N6178, where 2 persons were killed in a similar charge. I note the circumstances of that case to be more serious to your case where sentences of 5 years were wholly suspended and the offender disqualified from driving for 5 years.

12. In mitigation, I note you cooperated with the Police and have pleaded guilty. I also accept that your plea of guilt is an indication of your remorse. You have no prior convictions and you have spent 3 months in custody.

13. In the circumstances, I sentence you to 2 years imprisonment in hard labour. I deduct 3 months for time spent in custody leaving a balance of 1 year 9 months to serve. However, I suspend the 1 year 9 months on the following conditions:

1. You are disqualified from holding or obtaining drivers licence pursuant to s.330(2)(a) & s.19 of Criminal Code. You are with effect from 10^th May 2017 disqualified for a period of 1 year from holding or obtaining a drivers licence to operate a motor vehicle.
2. The Assistant Registrar of National Court Popondetta is to transmit a copy of this Order to the Commissioner of Police, Superintendent of Traffic, Officer in Charge Traffic Popondetta Police and Police Station Commander Popondetta.
3. Your bail money of K1, 000.00 is refunded.
   

Ruling accordingly,
___________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused