N7868

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1301 OF 2015

THE STATE

V

KIMBIRI DILU

Waigani: Berrigan, J
2019: 11 April and 10 May

CRIMINAL LAW – Sentence - S. 328(2)(5) Criminal Code – Dangerous driving causing death

Cases Cited:

The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165
The State v Alphonse Naulo Raphael [1979] PNGLR 47
The Public Prosecutor v Sima Kone [1979] PNGLR 294
Karo Gamoga v The State [1981] PNGLR 443
The State v Tardrew [1986] PNGLR 91
Lawrence Simbe v The State [1994] PNGLR 38
The State v Bevan Hoivo (2012) N5175 
The State v James Waisi (2014) N5615
The State v Joe Kalasim; CR 1405 of 2014, unreported, 17 March 2015
The State v Rose Tobiyala (2016) N6417
The State v Samson (2016) N6347
The State v Penunu (2017) N6804 
The State v Joseph (2017) N6741
The State v Rato (2017) N6694
The State v Norton Malko (2018) N7606

References Cited

Sections 328(2)(5) of the Criminal Code (Ch. 262) (the Criminal Code).

Counsel

Ms E. Kave, for the State 
Mr E. Sasingian, for the Accused

DECISION ON SENTENCE
10 May 2019 
1.	BERRIGAN J: The offender was charged with manslaughter through criminal negligence.  At trial he was found not guilty of manslaughter but convicted of one count of dangerous driving causing death, contrary to s.328(2)(5) of the Criminal Code (Ch. 226) (the Criminal Code).

2.	Sometime after 4pm on the afternoon of 1 April 2015 the accused, a police officer, was driving his police-issued vehicle along Wards Road in Port Moresby.  He was travelling in the inner lane of two lanes bound in the direction of Hohola when he struck the deceased, 15-year-old Serrah Kirio, whilst she was using the pedestrian crossing outside the Ted Diro Primary School.  At the time there were some but not many teachers and students at the school gate.  He failed to observe the deceased and her sister at the crossing.  He did see that there was a taxi stopped in the outer lane at the crossing but drove on nevertheless and collided with the deceased on the crossing.  He was travelling about 40 kilometres per hour.  The force of the impact threw the deceased several metres onto the median strip.  She was taken to hospital but died two days later from her injuries. 

Sentencing Principles

3.	It is well established in this jurisdiction that the principle purpose of sentencing for dangerous driving causing death is both public and personal deterrence for the purpose of protecting road users in line with community expectations:  The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165.  For similar reasons, the Supreme Court in The Public Prosecutor v Sima Kone [1979] PNGLR 294 stated that a custodial sentence should be imposed except in “the most exceptional of cases”.  

4.	Whilst affirming this as a general principle, the Supreme Court in Karo Gamoga v The State [1981] PNGLR 443 made clear that whilst the need for public deterrence prevails over other factors, the sentence itself remains within the discretion of the court which ought to distinguish between cases of heedlessness and those of recklessness, i.e. between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other.  Furthermore, given the potentially “infinite” range of circumstances giving rise to such offences, what will constitute an exceptional case calling for a lesser punishment is obviously a matter to be determined on a case by case basis.  

5.	Accordingly, in most cases, mitigating and sometimes even extenuating circumstances, will be outweighed by the need for deterrence generally:  The State v Hoivo (2012) N5175 applying Gamoga, supra.  

6.	Despite the passage of time, having regard to the prevalence of dangerous driving cases, the above principles clearly remain relevant and applicable today. 

7.	In the recent case of The State v Norton Malko (2018) N7606, Toliken J discussed the following authorities which have considered the factors which should be taken into account as aggravating when sentencing offenders for this offence.  

8.	Per The State v Alphonse Naulo Raphael [1979] PNGLR 47:

a.	driving without a licence, on an expired licence, with someone else’s licence or in a vehicle not authorised by a licence in fact held;
b.	driving an uninsured or unregistered vehicle;
c.	driving under the influence of alcohol, or whilst drinking alcohol;
d.	driving a mechanically defective vehicle;
e.	carrying passengers for money on a vehicle not licenced to carry passengers for reward.

9.	The number of deaths caused may also be an important aggravating factor: The Public Prosecutor v Willy Moke Soke, supra. As will the number of people put at risk by the driving.

10.	Toliken J himself also identified the following factors as aggravating in The State v Bevan Hoivo supra :

a.	erratic, furious or aggressive driving;
b.	episodes of road rage;
c.	showing off or competitive driving;
d.	evading police pursuit;
e.	ignoring signs of fatigue, especially on long distances;
f.	deliberate non-observance of streets signs such as stop or give-way signs;
g.	running through red lights;
h.	driving without being accompanied by a licenced driver whilst being the holder of a learner’s permit;
i.	talking on or texting on a mobile phone or operating hand-held computers or other electronic devices whilst driving.

11.	Clearly, the degree of speed involved may also be a relevant factor.  

12.	To my mind, and as in this case, the extent to which the offender failed to heed any warnings may also be a very significant factor on sentence.  As will the failure to have proper regard to vulnerable road users, particularly in the vicinity of hospitals, residential areas, or as here, close to schools or at or near pedestrian crossings. 

Comparable Cases

13.	Both parties referred me to authorities in support of their respective submissions.  Defence counsel cited the unreported case of Yaun Kiwo, in which the offender was sentenced to 2 years, wholly suspended, following pleading guilty to causing the death of a pedestrian on losing control of his vehicle.    

14.	The State referred to the following decisions in its submissions:

a.	The State v Alphonse Naulo Raphael, supra, in which the prisoner pleaded guilty to two counts and was sentenced to 3 years, 2 months’ imprisonment for causing the death of two people whilst under the influence of alcohol by colliding head on with an oncoming motor vehicle;  

b.	Gamoga v The State , supra  in which the Supreme Court overturned the sentence of 12 months in favour of two months’ imprisonment already served.  In that case the offender proceeded across a busy intersection after stopping at a stop sign but failed to accurately estimate the speed of an oncoming ambulance;

c.	The State v Bevan Hoivo, supra, in which Toliken J was of the view that a sentence of 2 years would have been appropriate but sentenced the offender to the rising of the court having regard to the fact he had been in custody for more than four and half years.  At the time of the offence the offender was carrying passengers and travelling at high speed on a road that had been recently graded, and thus was covered in loose gravel. He lost control of the motor vehicle and jumped off it as it veered uncontrollably to the other lane. The vehicle ran off the road, and into a ditch where it struck the deceased.  The offender in this case was unlicensed, driving on an expired learner’s permit, and travelling at excessive speed despite the loose gravel on the road;

d.	The State v James Waisi (2014) N5615, Cannings J, in which the offender was convicted following trial and sentenced to 3 years, 6 months’ imprisonment after fixing a starting point of 4 years. Pre-trial custody was taken into account and the balance suspended on strict conditions, including community service and reconciliation with the deceased’s relatives.  The offender was also disqualified absolutely from holding or obtained a driving licence. The offender drove a dump truck across the path of an oncoming vehicle, a 15-seater, PMV, by failing to signal and keep a proper lookout for oncoming traffic, causing the death of a bus passenger;

e.	The State v Rose Tobiyala (2016) N6417, Toliken J, in which the offender was convicted following trial and sentenced to 2 years’ imprisonment, having regard to extra-judicial harassment and threats of violence from the deceased’s family and other matters of mitigation.  One year was suspended on conditions.  The offender was driving between 45 and 50 kph at about 7.45 am into Alotau from the airport.  As she was negotiating a corner at Rabe Village she left her lane, in what was found to be momentary negligence, and collided with the deceased child who was attempting to cross the road, just off the centre line into the right lane, to his elementary school.  He was with his two older brothers and there were other children walking to school.  Another primary school was also located on the same stretch of the road. She applied the brakes but drove off when she heard and saw people shouting and running towards her, dragging the child along the road for several metres; and

f.	The State v Norton Malko, supra, Toliken J in which the offender, a police officer, was driving a police vehicle at high speed, after working three consecutive 8-hour shifts, when he failed to slow down and hit a pedestrian who was standing on the side of the road.  He pleaded guilty and was sentenced to 3 years’ imprisonment, 2 years of which were suspended.   

15.	I have also had regard to the other cases referred to in the latter mentioned decision: 

a.	The State v Joseph (2017) N6741, Bona J, in which the offender was driving along the Kokopau- Arawa Highway (AROB) when he hit the deceased as she was crossing the road. The deceased died instantly. The offender picked her up and took her to her father. He pleaded guilty and was sentenced to 2 years’ imprisonment less time in custody. The balance was wholly suspended on conditions;

b.	The State v Rato (2017) N6694, Auka AJ (as he then was): There the offender was driving a PMV bus laden with passengers along the Mulitaka/Porgera Highway and was descending downhill at high speed. As he tried to negotiate a corner, he ran off the road and hit a child standing at the side of the road killing her instantly. Realising that he had killed the child he surrendered to the Porgera Police. He pleaded guilty and was sentenced to 2 years’ imprisonment which was wholly suspended on condition;

c.	The State v Samson (2016) N6347, Auka AJ, (as he then was): The offender was driving a PMV bus along the Okuk Highway, carrying students to their school at Porgera. He was speeding excessively whilst descending a corner when the brakes failed. He tried to manoeuvre the vehicle to safety but hit a child who was standing by the side of the road killing her instantly. The offender pleaded guilty and was sentenced to 2 years’ imprisonment, wholly suspended on conditions;

d.	The State v Penunu (2017) N6804 (Liosi J). The offender was driving his 25-Seater Toyota Coaster up the Kokoda Highway from Popondetta laden with passengers. He was approaching a stationary 15 Seater PMV bus on the side of the road dropping off passengers but failed to slow down or take precautions before passing the stationary vehicle.  As a result he ran into a 5 year old girl who was crossing the road after alighting from the bus. The offender pleaded guilty and was sentenced to 3 years’ less time spent in custody. The balance was suspended with conditions;

e.	The State v Joe Kalasim; CR 1405 of 2014, unreported judgment of 17 March 2017, Geita J: the offender, a policeman, pleaded guilty to a charge of dangerous driving causing the death of a young man who was standing on the roadside. He was sentenced to 2 years’ imprisonment, wholly suspended. 
  
16.	The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Current Case

17.	In mitigation this is the offender’s first offence.  He is previously of good character.  

18.	The offender is 57 years of age and comes from Kambo Village in Simbu Province. He is married with four children, all of whom are financially dependent on him, including three who attend school in Port Moresby, and his last born who has special needs and lives at home. 

19.	The offender was educated up to Grade 10 and passed out from Bomana Police College in 1981.  He is currently a Senior Constable with the RPNGC.  The pre-sentence report indicates that he has provided faithful service for the past 29 years and according to a Community Counsellor and Village Court Peace Officer is highly regarded within the local community of Moreguina in Central Province where he has been stationed for 18 years.  

20.	On allocutus the offender expressed remorse, which despite the State’s submission, and whilst belated, I do accept as genuine.  There is no doubt in my mind that the offender regrets the death of the deceased.  He apologised to the family of the deceased and asked the court to have mercy on him and impose a caution or good behaviour bond.  

21.	He also offered to pay compensation of K20,000 for the purposes of reconciling with the deceased’s family, although that is at odds with his position at the time of the pre-sentence report.  Defence counsel submitted that if he had the means to pay compensation he would.  It appears from the report that he does not have the necessary means. 

22.	In the pre-sentence report the offender states that he was threatened by the deceased’s father at the court house on three occasions.  Whilst the family’s grief is understandable, this would of course be unacceptable.  The matter does not appear to have been raised with deceased’s father, however, by Probation Services and there is no suggestion that the situation is similar in nature or severity to that in Tobiyala, supra.  Nevertheless, it is clear that the family is frustrated by the offender’s failure to attempt reconciliation to date.

23.	In determining sentence it is also relevant to my mind that it has taken more than 4 years for the matter to be determined through no fault of the offender.  Trials were unavoidably vacated on two prior occasions before being referred to this court. 

24.	Defence counsel submitted that a sentence of 2 years’ imprisonment wholly suspended might be appropriate.  

25.	There are, however, a number of aggravating factors present in this case.  In my view it is a serious one having regard to the failure of the accused to have proper and safe regard to vulnerable road users, namely pedestrians, in particular children, in the vicinity of a school.  Furthermore, he failed to keep a proper lookout for pedestrians at the crossing.   The offence occurred on a straight stretch of road with an unimpeded view of the crossing.  Of particular significance to my mind is the fact that the offender did see the taxi stop at the pedestrian crossing and yet failed to heed that warning. He failed to sufficiently reduce his speed or stop and instead proceeded to drive through the crossing.  The speed at which he drove, whilst within the official speed limit, was clearly dangerous in all the circumstances.  The fact that the offender was a long serving police officer at the time, and should have been well aware of the risks to vulnerable road users, only serves to compound the seriousness of the offence in my view.  As I found at trial this was not a case involving gross negligence.  Nor, however, can it be described as a case of simple incompetence, or mere momentary lapse of judgment.

26.	Moreover, the offence resulted in the tragic and premature death of a 14 year old girl, with her whole life in front of her.  She was doing what any child of her age should have been able to do safely; cross the street near her school using the pedestrian crossing provided for that very purpose.    

27.	The impact of the offence on the deceased’s family, as evidenced by the pre-sentence report, and her father’s victim impact statement, has been profound.  Understandably, they continue to experience pain and suffering, both emotional and financial, which impacts their lives every day.   I have no doubt that Stephanie Kirrio, who witnessed her sister’s death at just 10 years of age, will be haunted by that day for the rest of her life.

Sentence

28.	The offence of dangerous driving causing death carries a maximum penalty of 5 years’ imprisonment. It is well established that the maximum penalty should usually be reserved for the worst instances of the offence and the court has discretion to impose a lesser sentence pursuant to s. 19 of the Criminal Code having regard to the circumstances of the case: Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92.

29.	Whilst not of the most serious kind, for the reasons stated above the offence in this case is serious. The offence is prevalent and this case calls for both general and specific deterrence.   There is nothing exceptional about the case that should preclude the imposition of a custodial term.

30.	Having regard to all of the matters discussed above, I sentence the offender to 3 years’ imprisonment in light labour.

31.	This case is unfortunately a stark reminder of the serious responsibility undertaken by all drivers when they get behind the wheel, and the terrible consequences for both them and the victims, their families and the community at large in the event that death is caused by their dangerous driving. The offender did what appears to happen far too often.  He drove through a pedestrian crossing, even when another vehicle was already stopped there.

32.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 

33.	I agree with Toliken J that suspension may also be appropriate if it will achieve reconciliation and restoration of damaged relationships.  It does not appear that is possible in this case having regard to the pre-sentence report.  Again, this may be due to the lapse in time since the offence. Rehabilitation of the offender is not an issue in this case.  

34.	Having regard, however, to the advanced age of the offender, and the delays associated with the matter, one year of the sentence will be suspended.

35.	The State has also asked for the offender’s licence to be revoked absolutely.  The offender is not a young man and has served the RPNGC faithfully for most of his life, driving both in the city and in rural locations.  I see no reason why he should be barred from holding a driving licence when he is released from prison, assuming he is assessed as suitable.  A licence may in fact be important to facilitating his return to normal life with his family and in the community.

36.	The Court orders that:

a.	The offender is sentenced to 3 years’ imprisonment in light labour less one month spent in pre-sentence detention.
b.	The offender will serve 1 year, 11 months in prison with the balance suspended on condition that upon discharge he enter into his own recognisance to be of good behaviour for the balance of his term.
c.	Bail monies are to be refunded.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner