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State v Kotapu (No.2) [2019] PGNC 27; N7704 (20 February 2019)

N7704

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1133 OF 2016

THE STATE

V

DANLEY KOTAPU
(NO.2)

Alotau : Toliken, J.
2019: 15^th, 20^th February

CRIMINAL LAW – Sentence – Dangerous driving causing grievous bodily harm – Three counts – Conviction after trial – Prisoner carrying detainees to court – Speeding – Ran off road to avoid colliding with vehicle turning onto his lane at a safe distance – Not Worst case – No total abandonment of moral responsibility to life, safety and health of other road users – Case of mis-judgment and carelessness – Mitigating and Aggravating factors considered –Appropriate sentence – 18 months for each count – One-transaction rule applied – Concurrent sentence – Additional penalty – K1000 fine for each count - Criminal Code Ch. 262, ss 19 (1)(b),328(2)(5).

SENTENCE – Suspension – Principles and authorities for – Considered – Pre-sentence Report not favourable – Court not divested of discretion - Suspension appropriate – Sentence of imprisonment wholly suspended on condition – Criminal Code Ch. 262, s 19 (1)(d).

SENTENCE – Compensation – Not awarded – No Means Assessment Report – Criminal Law (Compensation) Act 1991, s 5.

Cases Cited

Avia Aihi v The State (No. 3) [1982] PNGLR 92
Karo Gamoga v The State [19981] PNGLR 443
The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Sima Kone [1979] PNGLR 294
The State v Alphonse Naulo Raphael [1979] PNGLR 47
The State v Norton Malko (2018) N7606
The State v Hoivo (2012) N5175
The State v Philip Iparu (2005) N2995
The State v Joseph Muir Kaur; CR 80 of 2017 (unreported and unnumbered judgment of 26^th July 2017)
The State v Gama Deilala; CR 474 of 2017 (Unreported and unnumbered judgment of 26^th July 2017)
Nick Milibur v Anton Tepu (2010) DC 1052

Counsel:

L Rangan, for the State
P Palek, for the Accused

SENTENCE
20^th February, 2019

1. TOLIKEN J: The prisoner Daniel Kotapu was convicted after trial on 25^th October 2018 for three counts of dangerous driving causing grievous bodily harm pursuant to Section 328 (2)(5) of the Criminal Code (the Code).
   
2. The brief facts for the purpose of sentencing are that on 09^th November 2015, the prisoner who is a police officer, was transporting detainees from Giligili Corrective Institution into Alotau for their court appearances in the District Court on a Police Toyota Land Cruiser (10 Seater) between 9.00 a.m – 10.00a.m. He was accompanied by two other officers, one sat in front with him while the other sat at the back guarding the three detainees with a gun. The detainees were Kepas Mote Kevandi, Paul Patrick and Milary Eric.
   
3. As he approached the Gurney Airport Junction, still at high speed, a vehicle coming from the opposite direction, turned right onto the prisoner’s lane onto a feeder road leading into the nearby oil palm plantation. Seeing this, the prisoner veered off the road in order to avoid colliding with the turning vehicle and ran into a ditch. He narrowly missed the other vehicle which by then was almost completely off the main road.
   
4. The prisoner did not slow down or apply his brakes when approaching the turning vehicle which was in his full sight as there was nothing to obstruct his view. As a result of his dangerous driving the three detainees sustained grievous bodily harm.
   
5. The offence of dangerous driving carries a maximum penalty of 5 years imprisonment. Section 328 (2)(5) of the Code relevantly provides:
   

(1) ...

(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.
...
(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.

6. It is, however, trite that the maximum penalty is usually reserved for the worst instances of a particular offence. The Court has discretion to impose a lesser sentence, though, if the circumstances of the case warrant it pursuant to Section 19 of the Code: (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92).
   

ISSUES

7. The sentencing issues then are; (1) Is this a worst case that must attract the maximum penalty?, (2) if not, what then should be an appropriate sentence for the prisoner?, and (3) is this an appropriate case to warrant suspension of the sentence, whether wholly or partially?
   

ANTECEDENTS

8. The prisoner is a Policeman attached to the Alotau Police Station. He is 27 years old and comes from Rogoma village, Kagua, Southern Highlands Province. He is married with 2 children. He is the last born in a family of five siblings. Both of his parents are deceased. He is a member of the Lutheran Church and educated up to 12^th Grade. He has no prior conviction.
   

ALLOCUTUS

9. The prisoner apologised to the victims and to the Court. He said the other vehicle blocked his way and he had to run off the road to avoid a collision and went into the ditch. He said he is a first time offender and since he did not mean to hurt the victims Court should show him mercy.
   

SUBMISSIONS

10. Mr. Palek submitted on behalf of the prisoner that a starting point for dangerous driving causing grievous bodily harm or death ought to be 2 ½ years. And an appropriate sentence in this case ought to be between 6 to 18 months.
    
11. Mr. Palek submitted that the prisoner had his blinkers and headlights on and travelling at high speed as he was approaching the Gurney Airport Junction, but the oncoming vehicle suddenly turned into the feeder road instead of giving way. The prisoner had to swerve off the road to avoid colliding with the other vehicle ran into the ditch and as a result the three detainees suffered minor injuries.
    
12. I cannot say that I entirely agree with Mr. Palek on these points. There was no evidence at trial that prisoner had his headlights and blinkers on. May be he did, but such was not put to the State’s witnesses or into evidence for that matter. Be that as it may, this is a neutral factor which may be appropriately given due weight in favour of the prisoner.
    
13. The prisoner’s Pre-sentence Report does not recommend probation supervision. I note, however, that the victims had requested compensation. Kepas Mote Kevandi and Milary Eric each asked for K10000 compensation. Paul Patrick has been discharged after serving his sentence and could be contacted by the Probation Officer Mr. Joel. The prisoner on his part offered to pay K500 compensation to Kepas Mote Kewani and K300 each to Milary Eric and Paul Patrick.
    
14. While asking for a sentence in the suggested range, Mr. Palek also submitted that alternatively the Court can impose a fine of K2000 and place the prisoner on good behaviour.
    
15. Mr. Rangan, on the other hand submitted on behalf of the State that three people sustained injuries as a result of the prisoner’s dangerous and careless driving. Further to that the prisoner is a police man who ought to be setting an example of good driving habits to the community and therefore a deterrent sentence is needed. Counsel submitted that because of the multiple victims, hence the three counts, cumulative sentences may be considered, of course taking into account the totality principle.
    
16. Mr. Palek in response said that because the counts were part of the same event the one-transaction rule ought to apply hence sentences ought to run concurrently.
    

SENTENCING PRINCIPLES

17. The primary purpose of sentencing for dangerous driving causing death is deterrence (public and personal), for the protection of road users. In the words of the Supreme Court in The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165 at 168, this is “to assure the public conscience that the Law in the circumstances prevailing in Papua will demonstrate an element of retribution.” And to that end, the Court was of the opinion that for many communities in country, custodial sentences were “the only really effective personal and public deterrent available” and that “sentences of detention appear to be in tune with what public conscience and community feeling would demand in most cases of dangerous driving causing death."
    
18. What this effectively means is that cases of dangerous driving causing death must invariably be visited upon with custodial sentences in the first instance. The only exception would be what the Supreme Court in The Public Prosecutor v Sima Kone [1979] PNGLR 294 described as “the most exceptional of cases” where “the necessity for public deterrence against the offence may be overridden by the circumstances of a particular case, to the extent that the offender is not sentenced to a term of imprisonment” or sparred imprisonment.
    
19. In Gamoga Karo v The State [1981] PNGLR 443, the Supreme Court then held that whilst public deterrence prevails over other factors, the sentence itself remains within the discretion of the Court, which ought to distinguish between cases of heedlessness or recklessness; i.e. between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other.
    
20. Hence, while the Court can have regard to the character, antecedents, age, health or mental condition of offenders, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, these pale into insignificance when considered against the need for deterrence, not out of any concern, that the offender himself might re-offend, but for public deterrence generally. In other words, the individual circumstances of the offender are subordinate to the necessity for public deterrence. Furthermore, the offender is not a criminal who needs to be reformed or rehabilitated. Hence, rehabilitation is irrelevant (The State v Hoivo (2012) N5175).
    
21. The Courts have over the years tried to provide some guidelines as to what factors ought to be considered in sentencing offenders for this offence. The State v Alphonse Naulo Raphael [1979] PNGLR 47, subsequently approved by the Supreme Court in The Public Prosecutor v Sima Kone (supra), set out some factors which may be taken as aggravating the offence. These are –
    
    • Driving without a licence, on an expired licence, with someone else’s licence or in a vehicle not authorized by a licence in fact held.
    • Driving an uninsured and unregistered vehicle.
    • Driving under the influence of alcohol, or whilst drinking alcohol.
      • Driving a mechanically defective vehicle.
      • Carrying passengers for money on a vehicle not licensed to carry passengers for reward.
        
22. The number of deaths may also rightly be taken into account as also aggravating the offence (The Public Prosecutor v Willy Moke Soke (supra). In The State v Bevan Hoivo (supra), I said that other factors may include the following:
    
    • erratic, furious or aggressive driving.
    • episodes of road rage.
    • showing off or competitive driving.
    • running away from a police pursuit.
    • ignoring signs of fatigue when driving long distances.
    • deliberate non-observance of street signs such as stop or give-way signs.
    • running through red lights at traffic lights.
    • driving without being accompanied by a licensed driver while being the holder of Learner’s Permit.
    • talking on or texting on a mobile phone or operating hand-held computers and other electronic devises/gadgets while driving.
      
23. These are factors that have been brought about either by the general trend of deteriorating bad manners, the pressures of modern metropolitan life and advances in technology, which unfortunately have resulted in bad driving habits that now pose grave danger to road users.
    
24. But, what would constitute those “exceptional cases” alluded to by the Supreme Court in Willy Moke Soki and Sima Kone? The Supreme Court in Gamoga Karo (supra) intimated that the term “most exceptional of circumstances” is not the same thing as circumstances uncommonly encountered. There is such a variety and combination of circumstances involved in facts giving rise to the particular charge, which makes it most undesirable for any Court of Appeal to lay down guidelines other than in the broadest sense.” And as Kandakasi, J. said in The State v Philip Iparu (2005) N2995, the circumstances are infinite. It is, therefore, left to the sentencing Court to decide what circumstances may be considered “most exceptional” in each particular case.
    

SERIOUSNESS AND DEGREE OF CULPABILITY

25. The seriousness of a particular offence will depend on the following factors when viewed objectively:
    
    • Whether the prisoner was aware of the risk involved in his manner of driving. This would normally involved prolonged or sustained bad driving.
    • Whether the offender’s judgment and mental faculty were affected by alcohol or drugs.
    • The speed in which the offender was driving. This would include excessive speed, driving above statutory speed limits, driving at a speed that was not be appropriate for the prevailing conditions of the road or cutting corners while speeding.
    • Serious culpable behaviour such as texting or talking on a hand-held mobile phone, or hand-held radio or other devises or media which distracts one’s attention, or aggressive and furious driving, or knowingly driving when suffering from a medical or physical condition that significantly impairs the offenders driving skills, or ignoring signs of fatigue when driving long distances, or knowingly driving mechanically defective or un-roadworthy vehicles including ones with smooth tyres.
    • Driving while only a holder of a learner’s permit.
    • Failing to have proper regard to vulnerable road users. This include driving without proper care, when driving through places like schools, hospitals, residential areas, pedestrian crossings or public market areas.
      

SENTENCING TREND

26. Mr. Palek cited four cases to assist the Court in determining an appropriate sentence for the prisoner – a couple of these are by the District Court matters, of which one only is factually relevant. The other two are unreported matters which I dealt with here in Alotau.
    
27. Nick Milibur v Anton Tepu (2010) DC 1052. There the offender pleaded guilty in the District Court for two counts of dangerous driving causing grievous bodily harm and one count for causing death. He was driving a 25 Seater Toyota bus and was travelling up the Highlands Highway from Lae, heading for Mt. Hagen. On the way he overtook another vehicle at high speed not realising that he was about to come to a corner. When he came to the corner he slowed down to apply his brakes but the vehicle skidded and the front tyre went off the road. The vehicle capsized and rolled over 5 times down the steep road and before it finally came to rest by the banks of a river. Two of the passengers sustained serious bodily injuries and one died. The offender was sentenced to 1 year each for the two counts of causing grievous bodily harm and 2 years for causing death which were ordered to run concurrently.
    
28. The State v Joseph Muir Kaur; CR 80 of 2017 (unreported and unnumbered judgment of 26^th July 2017): The offender there was transporting a patient from Garuahi Health Centre to Alotau General Hospital. As he was approaching the Scratch Market along the Alotau/East Cape Highway just outside of Alotau he came upon passengers disembarking from a PMV bus and were attempting to cross the road to the other side. He tried to avoid the passengers by swerving to the left side of the road but hit a bystander knocking him to the ground occasioning him grievous bodily harm. The offender then assisted the victim to the hospital. The victim recovered but had to walk on crutches for some time. On his guilty plea the offender, a first time offender who had paid for the victim’s medical expenses, I sentenced him to 12 months imprisonment. In addition, pursuant to the Court’s discretion under Section 19 (1)(b) of the Code, I ordered him to pay a fine of K2000. The sentence of 12 months was wholly suspended on condition, which included an order for compensation in the sum of K5000 pursuant to Section 5 of the Criminal Law (Compensation) Act 1991.
    
29. The State v Gama Deilala; CR 474 of 2017 (Unreported and unnumbered judgment of 26^th July 2017). There the offender was driving a motor vehicle owned by the Huhu Local Level Government along the Charles Abel Highway between 7.00p.m and 8.00p.m. He had been drinking alcohol and was speeding along without lights when he swerved and ran off to the right side of the road just outside the Service Delivery Centre and hit a pedestrian who was walking to town with relatives. The offender did not stop after hitting the victim but immediately drove off in fear of his life. He was later picked up by the police. The victim suffered grievous bodily harm, was admitted to the hospital and later discharged. The offender pleaded guilty to the charge. Considering that he was drunk and had been driving without light and also speeding, despite his guilty plea and lack of priors, I sentenced him to 2 years imprisonment and in addition I also ordered him to pay a fine of K600.00. The sentence of 2 years was wholly suspended on condition.
    

CURRENT CASE

30. The current case is by no means a worst case hence it should not attract the maximum penalty of 5 years imprisonment. In other words the offender’s culpability is pretty low. In the circumstances I will set a starting point of 2 ½ years.
    
31. What, then, should be an appropriate head sentence? This will depend on the aggravating and mitigating factors, and the personal circumstances of the prisoner.
    

Mitigating Factors

32. I take into account the following mitigating factors:
    
    • The prisoner is a first time offender.
    • He was of prior good character.
    • The prisoner appeared to be genuinely remorseful even though this is belated.
      

Aggravating Factors

33. I accept the State’s submission that the fact that the offender here is policeman upon whom a higher degree of care is expected for the purpose of sentencing as opposed to the degree of care with respect to criminal responsibility which, of course is impersonal and universal.
    
34. This offence is very prevalent and unfortunately a good number of offenders happen to be members of the Police Force. What then should be an appropriate head sentence for the prisoner?
    

Deliberations

35. Whatever the prisoner’s sentence will be depends primarily on the prisoner’s level of culpability and the purpose of sentencing for this type of offence and his mitigating and aggravating factors. It must be noted, however, that there are no “exceptional circumstances” present in this case that should preclude the imposition of a custodial sentence in the first instance.
    
36. Be that as it may, the prisoner’s culpability is low as I have said. This is not a case where the prisoner has displayed a total abandonment of moral responsibility to the lives, safety and health of other road users and his passengers for that matter. Rather it is a case of bad judgment where the prisoner mistakenly, if not carelessly thought, that getting the detainees to court on time at expense of risking their lives and other road users was more important.
    
37. The prisoner had the opportunity to avoid running off the road as he was approaching the junction and the on-coming vehicle which he saw turn from a safe distance. But he did not slow down lesser still apply his brake. If I may be permitted to mention it, it is also a notorious fact that there is a crossing at the Gurney Airport Junction as there is a bus stop on the other side of the road. These are several meters from the feeder road. These features are so notorious and I take judicial notice of them. That was an additional reason for the prisoner to slow down, but as we have seen he continued on at high speed – in fact around a 100k.p.h.
    
38. The offence of dangerous driving causing grievous bodily harm or death is very prevalent. Thousands of lives have been lost and continue to be lost on our public roads, and hundreds more people lose limb or are maimed either permanently or temporarily due to dangerous driving by both civilians and an increasing number of police officers.
    
39. Commenting on offending by police officers in the case of The State v Norton Malko (2018) N7606 (06 December 2018), a case also involving a colleague of the prisoner here but on a plea of dangerous driving causing death, I made the following remarks which are worth repeating here:
    
    37. A motor vehicle is a dangerous thing within the meaning of Section 287 of the Code. Section 287 (1) imposes a duty on persons in control of dangerous things (including drivers of motor vehicles) to use reasonable care and take reasonable precautions so as not to endanger the life, safety or health of any person when using or controlling dangerous things. A failure in that regard results in criminal liability for any injury sustained, including fatalities.
        
    38. Now what is of concern is an attitude that appears to be increasingly exhibited by drivers in the Police Force. Some officers drive with total lack of precaution for the safety of other road users (and themselves for that matter) and some think that they are the kings of the road and a law unto themselves once they are behind the wheels of a police car. I am not saying for a moment that this was the case in the instant case, but this is the attitude that often results in unnecessary deaths and serious injuries to innocent road users.
        
39. Road deaths often result in huge losses. Relatives of victims suffer immeasurable emotional and financial loss when a loved one, often a bread winner, is unnecessarily and untimely taken from them. The State is often left with a huge financial bill from dependency claims and increasingly whenever an officer of the State (particularly police officers) run down somebody, relatives and others disrupt the smooth flow of traffic and demand exorbitant amounts of compensation from the State and its agencies...
    
40. Now, the purpose of sentencing for this type of offence is primarily punishment or retribution, not rehabilitation for the offender is not a criminal who needs to be reformed as we have seen. Hence the prisoner must expect a custodial sentence in the first instance. Of course this may be tempered with mercy should he have good factors operating in his favour and there is abandonment of moral responsibility to the lives, safety and health of other road users.
    

Appropriate Sentence

41. Considering the circumstances of this case and the prisoner’s mitigating factors, I am of the opinion that head sentences ought to be just below the starting point of 2 ½ years ought to be imposed for each count. Appropriate sentences ought to be 18 months for each. I therefore sentence the prisoner as follows:
    

Count One – 18 months
Count Two – 18 months
Count Three – 18 months.

42. That is a total sentence of 54 months. Applying the one-transaction rule, these sentences will run concurrently, hence the prisoner will serve 18 months. Should I exercise my discretion to suspend the sentence?
    

Suspension

43. Ordinarily a suspension may be considered if it will promote deterrence, reformation or rehabilitation of an offender; promote restitution of stolen property; or if imprisonment will cause excessive suffering to an offender because of bad physical or mental health, and also if it is recommended by a favourable pre-sentence report. (Public Prosecutor v Bruce Tardrew [1986] PNGLR 91; Public Prosecutor v Don Hale (1998) SC 564). In The State v Auduwa (2012) N5169, I said that suspension may also be considered if it will achieve reconciliation and restoration of damaged relationships between parties.
    
44. The Prisoner’s Pre-sentence Report is not favourable. However, I do agree with Mr. Palek that the author of the report took into consideration matters which are irrelevant to the instant case. In particular, he made aspersions and drew prejudicial conclusions regarding the prisoner’s other criminal charges which were then pending trial and for which he had been acquitted at these sittings of the Court. The negative recommendation was therefore unfair to the prisoner.
    
45. But while this case might not be on all fours in respect of the relevant principles on suspension, the Court is not entirely divested of its discretion, despite the pronouncement of the Supreme Court in the cases cited above. As correctly said by the Supreme Court bench in Thress Kumbamong v The State (2008) SC1017, sentencing and guideline tariffs ought not be taken as curtailing the sentencing court’s unfettered discretion under Section 19 of the Code, as the court still retains discretion unless and until such discretion is curtailed or removed by Parliament through legislation.
    
46. I am of the opinion there that this is an appropriate case for me to exercise my discretion to wholly suspend the sentence. I am, however, also of the opinion that a wholly suspended sentence might not have the desired purpose of punishing and deterring the prisoner and so, in keeping with the precedence I have set in the cases of The State v Joseph Muir Kaur (supra) and The State v Gama Deilala (supra) an additional order for payment of a fine will be most appropriate as it will go a long way in punishing the prisoner while at the same time deter him as well. Pursuant to my discretion under Section 19 (1)(b) of the Code I will therefore also impose a fine of K1000.00 for each count which sums shall be paid within 2 weeks in default of which the prisoner will be committed to prison until such time the said fines are paid.
    
47. Furthermore, pursuant to my discretion under Section 19 (1) (d) of the Code, the prisoner’s sentence of 18 months is suspended on the condition that he shall enter into his own recognizance to be of good behaviour for a period of 2 years with a cash surety of K500.00. The prisoner’s bail of K500.00 is converted as payment of his surety. Sureties paid by his guarantors (if any) will be refunded to them.
    
48. Finally, two of the victims have each asked for K10000 compensation. However, in the absence of a Means Assessment Report, I will not consider awarding any compensation. The victims are at liberty though to file proceedings in the appropriate court for civil redress if they so wish.
    

ORDERS

49. My orders are therefore as follows:
    
    1. The prisoner Danley Kotapu is sentenced as follows –
       

Count 1 - 18 months imprisonment

Count 2 - 18 months imprisonment

Count 3 - 18 months imprisonment.

2. The sentences shall run concurrently, hence the prisoner will serve 18 months at Giligili Corrective Institution.
   
3. In addition the prisoner shall pay a fine of K1000 within two weeks for each count in default of which he shall be committed to Giligili Corrective Institution until the said fine is paid.
   
4. The prisoner’s sentence of 18 months is wholly suspended on condition that he shall enter into his own recognizance to be of good behaviour for a period of 2 years with a cash surety of K500.00.
   
5. The prisoner’s bail of K500.00 is converted as payment of his surety for good behaviour.
   
   6. Any cash sureties paid by his guarantors will be refunded to them.
      
50. Ordered accordingly, and the prisoner is at liberty to appeal to the Supreme Court within 40 days if he is aggrieved by his sentence.
    

_______________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner