N8235

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 403 of 2015

THE STATE

v

SAM KWARA

Lae:  Kaumi J
2019: 26th July & 16th December

CRIMINAL LAW – Criminal Code Act 1974-Section 328 (2) (5) Dangerous Driving Causing Grievous Bodily Harm-Sentence-Sentencing Guidelines-Plea of Guilty-Dangerous Driving-Drunk and Lack of sleep-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial in Custody-Should All or Part of the Sentence be Suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report

CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–Compensation paid by Offender and Motor Vehicle Limited-Prevalent Offence

Facts

The offender pleaded guilty to two counts of Dangerous Driving Causing Grievous Bodily Harm and matter for sentence.

Legislation Cited: 

Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Cases Cited:

Alex Yembi v The State SCR 45 of 2003
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Saperus Yalibakut v The State [2008] SC 890
State v Kotapu(No.2) PGNC 27; N7704 
State v Papen (No.2) PGNC 58; N3639 
The Acting Public Prosecutor v Don Hale (1998) SC564
The Public Prosecutor v Willy Moke Soke
The State v Bevan Hoivo Toliken. J
The State v Alphonse Naulo Raphael [1979] PNGLR 47
The State v Gama Deilala CR 474 of 2017 (Unreported and Unnumbered 26/07/17)
The State v. Joseph Muir Kaur; CR80 of 2017 (Unreported and unnumbered judgment of 20/07/17)
The State v Irox Winston [2003] N2347
Tom Longman Yaul v The State [2005] SC803
UreHane v The State [1984] PNGLR 105

Counsel

Ms. Comfort Langtry, for the State
Mr. Colman Balus Boku, for the offender

SENTENCE 

16th December, 2019

1.	KAUMI J: This is a decision on sentence for a man who on the 27th May, 2014 pleaded guilty to two counts of Dangerous Driving Causing Grievous Bodily Harm contrary to Section 328 (2) (5) of the Criminal Code Act Chapter 262.

ISSUE
2.	The relevant issue is what the appropriate sentence in this case.

FACTS
3.	On the night of 26th May 2014, the accused, Sam Kwara, was drinking beer and he didn’t sleep that night.

4.	Around 4pm on 27thMay 2014, he drove his motor vehicle, a Mitsubishi Outlander station wagon, along Busu Road at Malahang and was heading to town. He was accompanied by two passengers at the time.

5.	He drove at between 60 to 80 kilometers per hour. He switched off (fell asleep) and the car veered off course into the other lane and bumped the two complainants, namely, Michelle Piwat and Dinis Aron, who were then aged 14 years and 13 years respectively. One of the complainants was knocked into a drain made of concrete while the other was thrown into a fence.

6.	The offender was immediately taken into police custody and the two complainants were rushed to Angau Memorial General Hospital where they received treatment for their injuries. Michelle Piwat sustained a fractured pelvic bone, a fractured femur, bruises and abrasions and Dinis Aron sustained a fractured fibula and bruises.

ANTECEDENT
7.	The Antecedent Report provided to the Court by the State states that he has no prior convictions.

ALLOCATUS
8.	When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:
“Thank you for allowing me to talk. Firstly, I say sorry to God Almighty, secondly, to you Your Honour, thirdly, to the Independent State of Papua New Guinea for breaching the Constitution. I ask the Court to release me as I have four children in school and family and I have been in custody for a long time. I have a permanent residence and rent house. I ask for a Good Behaviour Bond or a court fine. That’s all.”

OTHER MATTERS OF FACT
9.	The offender pleaded guilty and so I will give him the benefit of the doubt on mitigating  matters raised in the committal depositions, the allocatus and in submission  that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. 

SUBMISSION BY DEFENCE COUNSEL
10.	Mr. Boku for the offender besides the usual matters submitted on sentence i.e. personal details, aggravating, mitigating factors and precedent cases submitted what he considered (based on these factors) to be an appropriate sentence.

11.	He relied on some cases (of which I will refer to later), The State v. Gama Deilala CR 474 of 2017 (Unreported and Unnumbered judgement of 26th July 2017), State v. Kotapu (No.2) PGNC 27; N7704 (20/02/19) per Toliken. J                                                                                                                                                                                                                                                                                                                                                  to submit that a two (2) years sentence wholly suspended conditionally was warranted. 

12.	He highlighted that the offender had paid compensation to both victims and further that both had been paid compensation also by the Motor Vehicle Insurance Limited.

SUBMISSION BY THE STATE

13.	Ms. Langtry for the State submitted that the penalty for this offence suggested that this offence was a very serious crime. And bearing in mind the sentencing range from the cases she cited, she submitted that term of imprisonment between 12 to 24 months was appropriate for DDCGBH.

14.	She highlighted the PSR not suggesting the offender could be supervised if given a suspended sentence. That the views of his community were not ascertained as to their attitude towards him when he returns to his community and submitted that a suspended sentence was not warranted in the present circumstances 

WHAT IS THE MAXIMUM PENALTY? 

15.	In this jurisdiction it is trite law that the maximum penalty prescribed for an offence is reserved for the worst form or a category or offending for that particular offence. Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] 92 and Ure Hane v The State [1984] PNGLR 105.     

16.	Section 328 (2) (5) of the Criminal Code states:

(2) A person who drives a motor vehicle on the road or in a public place dangerously is guilty of a misdemeanor.
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.
(5) If the offender causes the death of a person of orgrievousbodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.’ (emphasis added)

17.	The maximum sentence is 5 years imprisonment. This case does not fall into the category of worst cases however it is serious as two children were seriously injured and one continues suffer pain and disability as a result of the injury she received.

WHAT IS THE STARTING POINT?

18.	The proper starting point forDangerous Driving Causing Grievous Bodily Harm in this case is the midway point of 30 months.

WHAT SENTENCE HAD BEEN IMPOSED FOR EQUIVALENT OFFENCES?

19.	I will consider the sentencing trends in recent history.

20.	The following are National Court sentences forDangerous Driving Causing Death and Grievous Bodily Harm:

(a) State v Papen (No.2) PGNC 58; N3639 (21/05/09) –The offender was convicted of 3 charges, Dangerous Driving Causing Death, Dangerous Driving Causing Grievous Bodily Harm and Unlawful Use of Motor Vehicle. 3 years was imposed for DDCD, 2 years for DDCGBH and 1 year for UUMV all to be served concurrently. Pre-Trial Custody period of 1 year 2 months was deducted so balance of 1 year 9 months and 28 days to be served IHL.

(b)State v Kotapu (No.2) PGNC 27; N7704 (20/02/19) (Toliken. J) –offender convicted of DDCGBH to 3 prisoners. Offender was a policeman driving 3 prisoners to court when accident occurred whilst avoiding an on-coming vehicle.

(c) The State v. Joseph Muir Kaur; CR80 of 2017 (Unreported and unnumbered judgement of 20/07/17) - The offender pleaded guilty to one count of DDCGBH and was sentence to 12 months Imp which was suspended wholly on condition which included an order for compensation in the sum of K5000-00 pursuant to section 5 of the Criminal Law (Compensation) Act 1991.

(d) The State v. Gema Deilala CR 474 of 2017 (Unreported and Unnumbered 26/07/17)– offender pleaded guilty to one count of DDCGBHand was sentence to two years imprisonment in addition to an order to pay a fine of K600-00. The sentence was wholly suspended conditionally.

(e)Alex Yembi v The State SCR 45 of 2003.The offender drove a car at high speed at night time through a crowded area and lost control killing two persons and injuring two others.The offender was sentenced to 3 years imprisonment for each DDCD count and 2 years for each DDCGBH count to be served concurrently and half the term suspended The Supreme Court found the sentence lenient, quashed the appeal but upheld the sentence.

21.	I note from the cases above that the sentence range forDangerous Driving Causing Death is 2 to 3 yearsand forDangerous Driving Causing Grievous Bodily Harm generally the sentence range is 1 to 2yearson a plea of guilty and suspension of these periods have depended on the peculiar circumstances of the matter and with conditions attached. 

WHAT IS THE HEAD SENTENCE?

22.	In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.

23.	There are a number of mitigating factors in the matter, the prisoner pleaded guilty, has no prior convictions, co-operated with the police investigators when he made early admissions, expressed genuine remorse in allocatus, paid compensation of K1, 500.00 to each victim soon after the accident, Motor Vehicle Insurance Limited paid K18, 000.00 each to the victims, his motor vehicle was burnt by opportunists, and he lost his business and vowed to reconcile with the victims.

24.	The aggravating factors against the prisoner are matters the court also must take into consideration and I make mention of them; first, the offender was drunk and driving,The State v Alphonse Naulo Raphael [1979] PNGLR 47; second, he was driving dangerously; third, I note that he was driving without due care and attention,The State v Bevan Hoivo Toliken. J and fourth, he caused serious injury to the two pedestrians (victims)The Public Prosecutor v Willy Moke Soke. 

25.	The mitigating factors outweigh those in his aggravation.

26.	Considering the circumstances of this matter and the sentencing trend in the case the head sentence should not be above the starting point of thirty months,therefore it will be 2 years for each count to be served concurrently.

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

27.	Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:
There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.
28.	This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

29.	I do not deduct any time spent in pre-trial custody.

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

30.	Suspension of sentence is primarily the discretion of the Court and is stipulated under Section 19(6) of the Criminal Code that after a court has sentenced an offender to a term of years, it may order a portion of the sentence to be served and the remaining sentence to be suspended. 

31.	In terms of any suspension of sentence I find that there is, firstly, there is a PSR, secondly, it has a recommendation for suspension of sentence and thirdly, the recommendation that is for suspension of sentence has been substantiated. The Acting Public Prosecutor v. Don Hale (SC564) and The State v Irox Winston (N2347) [2003] Kandakasi. J (as he then was)

32.	In consideration of whether the recommendation for suspension was substantiated I note (and contrary to what the counsel for the State has contended) that the views of the offender and Mr. Murray Bobsoe a community leader from the offender’s area of Talair Compound was obtained andhe was willing to assist the Court in supervising Michael to ensure he abides by any orders the Court imposes, Mrs. Jenny Sekum, an aunt of the offender, Ms. Vicky Kwara his sister, Mr. Piwat Munge one of the victims’father, Mrs. Martha Piwat one of the victims’mother, both parents wanted more compensation paid on the basis of the injury and pain the victim continues to experience and medical reports. The aggregate view is that Sam is a suitable candidate for Probation Supervision and therefore I impose a suspension of sentence. People make mistakes in life and this is natural and as such people should be allowed a second chance in life to prove that they are better persons so having said that I am suspending the whole of the head sentence but conditionally so as to promote the personal deterrence, reformation or rehabilitation of the offender.Public Prosecutor –v- William Bruce Tardrew[1986] PNGLR 91

33.	I suspend the whole concurrent sentence of two years subject to the following conditions:
(a) 	Upon release the offender will keep the peace and be of good behaviour for the period of the suspended his suspended sentence (2 years);
(b) 	The offender shall reside at his residence at, Talair Compound, Kamkumung, Lae, Morobe Province;
(c) 	The offender shall not leave Morobe Province without the written approval of the National Court;
(d) 	The offender shall not associate himself with criminals;
(e) 	The offender shall attend his local church for service on every day of worship;
(f) 	The offender shall perform 500 hours of unpaid community work in his community, under the supervision of Mr. Murray Bobsoe (Talair Compound community leader).
(g) 	If the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. (see Tom Longman Yaul v The State (2005) SC 803)

SENTENCE

34.	The orders of the Court are as follows:
Length of Sentence imposed	2 years for each count to be served concurrently	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served 	2 years	
Amount of sentence to be suspended	2 years 	
Time to be served in custody	Nil	
Bail	Not Applicable	

Sentence accordingly.

_______________________________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender