N8942

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 259 & 260 OF 2019

THE STATE

v

JUNIOR MICHAEL GILIO & FRANCIS KARAWA

Kimbe:  Numapo, J
2021:  17th June & 16th July

CRIMINAL LAW – Particular offence – operating a small craft in a reckless, dangerous and careless manner – s. 27 (1) (a) & (2) Small Craft Act – dinghy capsized due to gross overload – Analogy to be drawn to dangerous driving causing death in motor vehicle.

Held:

(i)	The intention of the legislature is made clear for the offence of operating a small craft in a reckless, dangerous or careless manner with a heavy penalty prescribed for those who offend.

(ii)	Prisoners were careless and reckless to take the boat into the open sea past the 3 nautical miles range acceptable for safe travelling of small crafts. 

(iii)	The two prisoners were negligent and reckless by not taking on board sufficient number of safety gears and equipment and for not taking heed of the warning on the strong winds and high waves.  

(iv)	The prisoners were responsible for the safety of their passengers which is paramount however, both were the first to ‘abandon ship’ and did not raise any alarm or made any effort to return and rescue the passengers after they reached the shore. They have no regard for the safety of their passengers.

(v)	Public and societal interest demands custodial sentence in the first instance as a public deterrence.

(vi)	Prisoners each and severally sentenced to six (6) years IHL.

(vii)	Two (2) years to be suspended upon payment of compensation in the sum of K5000 each to the nine (9) victims and their families within 3 months pursuant to s 5 of the Criminal Law (Compensation) Act 1991.

(viii)	Prisoners to serve the balance of four (4) years IHL if compensation is paid.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Willy Moke Soke [1977] PNGLR 165 at 168
The Public Prosecutor v Sima Kone [1979] PNGLR 294 
Karo Gamoga v The State [1981] PNGLR 443

Counsel:

A. Bray, for the State
J. Kolowe, for the Defence

SENTENCE

16th July, 2021

1.      NUMAPO J: This is a decision on sentence. The prisoners MICHAEL GILIO JUNIOR and FRANCIS KARAWA both pleaded guilty to one count of carelessly operating a small craft pursuant to section 27 (1) (a) & (2) of the Small Craft Act. Section 7 of the Criminal Code is also invoked.

A.	FACTS

2.     The brief facts pertaining to the charge were that; on the 27th September 2018 at Kandrian, West New Britain Province, the prisoners overloaded a 23 foot outboard motor dinghy with nine (9) passengers including the two crew members, a total of eleven (11) people altogether on board, plastic fuel drums, cargoes and an outboard motor engine loaded onto the boat. Prisoner Michael Gilio Junior was the skipper whilst prisoner Francis Karawa was his crew. 

3.     After loading the dinghy they departed Kandrian Station at around 6:30am bound for Kimbe. They did not follow the shoreline which is the normal route taken by small crafts within the 3 nautical miles from the shore to avoid the swells of the open sea. They instead took a direct route heading for Pililo Island which requires them to travel out into the open sea. On the way they encountered some bad weather with high sea swells. The prisoners stopped in the middle of the sea and attempted to redistribute weight equally in the boat when a big wave crashed into the boat and filled it up with water forcing it to capsize and sink. One passenger Helen Gideon Kokote died instantly after she hit her head against the side of the boat and three other persons namely; David Monam, Kenneth Til and Naomi Bahai went missing and their bodies were never found. The other passengers survived by holding onto  the floating plastic drums, wooden planks and anything they can get hold of including clinging onto the side of the capsized dinghy. They floated in the open sea one full day and one full night until they were found and rescued in the early hours on the next morning by the villagers from the nearby islands.

4.    The State alleges that the prisoners were careless, reckless and negligent in the manner they operated the 23 foot dinghy and furthermore, there were no safety gears or equipment on board. The route they travelled on was not the usual route for small crafts.  

B.	THE LAW

5.    Section 27 of the Small Craft Act reads:

Offence to operate a small craft in a reckless, dangerous or careless manner.

(1)	A person who –
(a)	Operates a small craft in a reckless, dangerous or careless manner, or
(b)	Being the owner or the captain of a small craft, allows a person to operate the craft in a reckless, dangerous or careless manner, 
Is guilty of an offence.

Penalty:	a fine not exceeding K100, 000.00 or imprisonment for a term not exceeding 2 years, or both.

(2)	Where a person is injured or dies as a result of the commission of an offence under Subsection (1), the penalty for the offence is a fine not exceeding K500, 000.00 or imprisonment for a term not exceeding 10 years, or both.

C.	SUBMISSIONS ON PENALTIES

6.   In their respective submissions on sentence, Counsels submitted that there is no known reported case law on accidents involving small crafts under the Small Craft Act and this could be the first of its kind. Consequently, in terms of comparable case laws, there is very little to go by and urged the Court to, by way of analogy, apply the same principles used in motor vehicles for dangerous driving causing death (DDCD) under s. 328 of the Criminal Code for the reason that the elements of the charge is similar to that of motor vehicle as it involves recklessness, carelessness and negligence in the operation of the small craft. The only difference is that the penalty prescribed for DDCD is very small compared to the penalty prescribed for offences committed under the Small Craft Act. 

7.    With respect to the sentencing guidelines in dangerous driving causing death, Mr Bray referred to the Supreme Court decision in the case of The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165 at 168:

“…to assure the public conscience that the law in the circumstances prevailing in Papua New Guinea will demonstrate an element of retribution.”

8.     And to that end, the Court was of the opinion that for many communities in the 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.”

9.     In effect what the Supreme Court is saying in this case is that, custodial sentence is preferred in the first instance once a person is convicted of dangerous driving causing death because of a loss of life. Public and societal interest demands custodial sentence for public deterrence. The only exception would be what the Supreme Court said in The Public Prosecutor v Sima Kone [1979] PNGLR 294;

“..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.”

10.    However, in Karo Gamoga v The State [1981] PNGLR 443; the Supreme Court 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.” 

11.     As I stated earlier, references was only made to DDCD by way of an analogy hence, I do not intend to use the case laws that were cited as case precedence in deciding what should be an appropriate penalty to impose for the case that is now before me for reason that the nature of the offence and its factual circumstances is quite different to that of a DDCD. If anything, the only link between DDCD and the accident on the high seas is the use of the similar words in the respective legislations that created the offence and I am referring to the words; carelessness, recklessness and negligence under both the Criminal Code and the Small Craft Act. Another marked difference is that the penalties prescribed under the Small Craft Act is much higher than that for the DDCD under the Criminal Code. Furthermore, unlike the motor vehicle accidents where there is a compulsory third party insurance cover, there is no such cover for dinghies, boats and other small crafts going out to the sea. That could probably explain why the penalty is high however, I cannot speculate on the intention of the legislature other than to read the law as I found it.

12.     I reiterate once more that there is no known reported case law on deaths caused as a result of careless and reckless operation of a small craft under the Small Craft Act.

D.	PRESENT CASE

13.     In the present case, the evidence in the committal depositions revealed that the 23 foot dinghy powered by a 40 horse power was grossly overloaded with people and cargoes. The boat crews were negligent, careless and reckless firstly, by not taking on board sufficient number of life jackets and other safety equipments and secondly, by overloading the dinghy beyond its prescribed maximum load capacity and thirdly, by taking it out into the open sea past the 3 nautical miles range acceptable for safe travelling of small crafts. The boat was 5 nautical miles outside of the safe zone when it capsized. The chances of survival and getting rescued is very minimal from such distance. Finally, there was a severe weather warning on that day but the prisoners failed to took heed of the warning.

14.    The dinghy capsized and sank around 8:00am on the 27th September 2018 when it was hit by two big successive waves. The passengers jumped into the sea and clung onto the side of the boat including onto floating fuel containers, woods, and anything they could hold onto. The only safety equipments were two life jackets worn by two passengers when the boat capsized. The boat skipper Junior Michael Gilio and his crew Francis Karawa demanded the two passengers to take off the life jackets and give it them for them to swim ashore and get help but both never return back with help. They both have no consideration whatsoever for the safety their passengers who were left floating in the sea. Those that survived the ordeal were rescued later by some fishermen from the nearby islands after they spent 18 hours floating in the sea. Two of the passengers died and three went missing presumed dead. Their bodies have not been found. 

15.     Counsels referred the Court to the Supreme Court decisions in Goli Golu v The State [1979] PNGLR 653; Avia Aihi (No.3) v The State [1982] PNGLR 92 and Ure Hane v The State [1984] PNGLR 105 and submitted that maximum penalty prescribed by law is reserved only for the worst type offences. 

16.     Both the State and the Defence submitted that the present case does not fall under the category of worst type offence and submitted for a sentence of between 2-3 years imprisonment with some compensation to be paid to the victims including relatives of those that perished at sea pursuant to the provisions of the Criminal Law (Compensation) Act 1991.

17.     The factual circumstances of this case, in my view, places it near the category of worst type offence. The appropriate penalty will be determined having regard to the nature of the offence and the circumstances under which it was committed. 
 
E.	AGGRAVATING AND MITIGATING FACTORS AND CIRCUMSTANCES AND EXTENUATING CIRCUMSTNACES

18.     The aggravating and mitigating factors and circumstances of the present case are as follows:

1.	Aggravating factors and circumstances:

(i)	Offenders were reckless, careless and negligent in the operation of the dinghy;

(ii)	One passenger died and three went missing and are presumed dead;

(iii)	Offenders abandoned their passengers in the ocean and made no attempts to find help to rescue them;

(iv)	Deterrence is needed to comply with safety guidelines in the operation of small crafts.

2.	Mitigating factors are:

(i)	First time offenders

(ii)	Pleaded guilty early

(iii)	Expressed remorse.

F.	PRISONER’S BACKGROUND AND ALLOCUTUS

19.     The prisoner Michael Gilio Junior is 41 years and comes from Aviklo village, Kandrian Coastal LLG, West New Britain Province. He is married with 3 children and is currently separated from his wife.

20.     In his allocutus, prisoner Junior Michael Gilio said:

“I want to apologize to the families of the victims. I have no intention to cause this problem. I ask the Court to give me a suspended sentence so I can serve my term outside. That is all.”

21.     Prisoner Francis Karawa is 34 years old and comes from Aviklo village, Kandrian Coastal LLG, West New Britain Province. He is married with 3 children.

22.     In his allocutus, he said:

“I want to say sorry and apologize to the families of the victims. This accident was unintentional and happened due to bad weather. I ask for the Court’s mercy to give me a suspended sentence. That is all.”

G.	APPROPRIATE SENTENCE 

23.    Firstly, the intention of the legislature is made clear for the offence of operating a small craft in a reckless, dangerous or careless manner with a fine of not exceeding K100,000.00 or a term of imprisonment for 2 years, or both under s 27 (1) of the Small Craft Act. However, where a person is injured or dies as a result of the commission of the offence, the penalty is a fine not exceeding K500, 000.00 or a term of imprisonment for a term not exceeding 10 years, or both under s 27 (2) of the Act.  In the present case, one person died and three are still mission presumed dead. Hence, the penalty prescribed under Subsection (2) applies. 

24.     I considered this case as serious in nature. The ordeal and sufferings the victims have had to endure for 18 hours out in the open sea that resulted in one death and three still missing presumed dead is very traumatizing to the families.  The conduct of the prisoners as boat crews was totally unprofessional and leaves a lot to be desired. It is obvious that both were reckless and careless and operated the boat in a dangerous manner. One thing that I find difficult to comprehend is that both prisoners took the only two life jackets on board worn by two passengers and abandoned the ship with the promise to find help but never did so. The Seaman’s Rule No 1 is that the captain and the crews are to be the last to abandon a sinking ship however, this did not happened in this case. The actions of the two prisoners can be best described as selfish and self-centered as they do not seem to care about the safety and well-being of their passengers. In that regard, both were negligent and displayed a no care attitude towards their passengers.

25.     Although, there are no reported case of a similar nature in the past, what is obvious is the non-compliance of the safety laws in the operation of the small crafts. Too many of these small crafts are operating without proper safety gears and equipments on board. Overloading of small crafts is becoming too common with little or no regard to safety. Too many people are missing in our waters simply because people are being careless when going out to sea. This practice must stop.  

26.     An appropriate sentence is determined from the factual circumstances of the case being; the aggravating and mitigating factors and the extenuating circumstances. In the present case, I find that the aggravating factors rendered the mitigating factors completely insignificant. 

H.	DECISION

27.     I make the following Orders:

(i)	I sentence the prisoners Michael Gilio Junior and Francis Karawa to Six (6) years imprisonment each and severally.

(ii)	I further order that a sum of K5000 each to be paid to the nine (9) victims and their families as compensation, a total of K45,000, within three (3) months from the date of this Order pursuant to section 5 of the Criminal Law (Compensation) Act 1991 under the supervision of the Police or Probation Office.

(iii)	Two (2) years of the total term of imprisonment to be suspended if compensation is paid to the victims leaving a balance term of Four (4) years imprisonment term to be served. Failing to pay the compensation within 3 months period will result in the prisoners serving their full term of six (6) years IHL. 

(iv)	As there is no third-party insurance cover under the Small Craft Act, the families of the deceased persons are at liberty to pursue further compensation claim for loss of life in separate civil proceedings, if they so wish.

(v)	Bail monies to be refunded forthwith.

Orders accordingly.

Public Prosecutor:		Lawyers for the State
Public Solicitor:  		Lawyers for the Applicant