N8963

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1293 OF 2019

BETWEEN:
THE STATE

AND:
ELVIS MANGA

Maprik:  Rei, AJ
2021:  8th, 24thMarch

PRACTICE AND PROCEDURE – Criminal Law – Dangerous Driving causing death – What is the appropriate sentence – Section 328 of the Criminal Code Act - Actions of the prisoner dangerously causing death to two people - Sentence of 3 years is suspendered with good behaviour bond - driving license suspended - Plea.

Cases Cited:

The State -v- Kupo Nepo [2016] PGNC 10; N6178	
The State -v- William Kuwoh [2019] PGNC 453; N8232
The State -v- Philip Iparu [2005] PGNC 11: N2995	
The State -v- Kim Ondu [2014] PGNC 136; N5747
The State -v- Danley Kotapu (No.2) [2019] PGNC 27; N7704	
The State -v- Iparu [2005] PGNC 11; N2995
The State -v- Uwantuna [1989] N726
CR 1247 of 2013; The State -v- Martin Pano
The State -v- Paina [2015] PGNC 12 or N5867
Public Prosecutor -v- Dan Hale [1988] SC564
Public Prosecutor -v- Keru [1981] PNGLR 8
Mase -v- The State [1919] PNGLR 88

Counsel	

Ms. T. Aihi, for The State
Mr. S. Parihau, for the Defendant

24thMarch, 2021

1.	REI, AJ: BACKGROUND: This matter came before the Court on 8th March 2021.

2.	An indictment was then presented in which the offender was charged with three counts of dangerous driving resulting in the death of two (2) people; Sam Walepa & Ben Sala and causing grievous bodily harm to a Dorcus Heptem.

3.	The charges are laid under Section 328(2) and (5) of the Criminal Code Act.

4.	The contents of the indictment were read to the offender together with the statement of facts who was then asked to enter a plea.

5.	The offender pleaded guilty to the charge and a provisional guilty plea was entered.

6.	I then perused the committal file on the matter and confirmed the guilty plea.  I also noted from the committal file that this attitude was shown to the committal court throughout the proceedings there; a plea of guilty.

B.	ALLOCUTUS

7.	The prisoner made a speech from the dock in which he said he was remorseful and regretted what happened.

8.	He said it was unfortunate that two (2) people died as a result of the accident and one sustained grievous bodily harm.

9.	The prisoner also said he paid K17,000 to the relatives of the deceased Sam Walepa and offered K10,000 to the relatives of the other deceased person Ben Sala but they refused.

10.	He then asked that the court shows leniency in imposing a sentence.

C.	THE ACCIDENT

11.	From a quick perusal of the Committal file, I note that the accident occurred when the brakes of the vehicle gave way.

12.	The motor vehicle which was then ascending a hill rolled backwards resulting in the death of the two (2) deceased persons and causing grievous bodily harm to another.

13.	It is not a situation where the vehicle is deemed to have been involved in a head on collision resulting from negligent control or management of the prisoner.  It is also not a case where the motorist was under influence of liquor or was driving the vehicle at a dangerously high speed.

14.	It was caused by mechanical failure which was not directly known to the motorist prior to embarking on the journey.
		
15.	That, however, should not excuse the prisoner from his duty to ensure that the motor vehicle is road worthy as it is a dangerous machine and if not properly maintained, its unroad worthiness can cause accidents resulting in deaths or causing grievous bodily injuries.

D.	MITIGATING FACTORS

16.	The prisoner is a married man with five children, owns and runs a small-scale business, loading garden produce to the market for sale.

17.	He was an asset to the community whose hands were involved in helping the community by way of providing transport to help them sell their garden produce at the market to earn money for daily sustenance.

18.	The prisoner made an early guilty plea which saved time and money.

19.	He voluntarily paid compensation of about K17,000.00 to the relatives of Sam Walepa deceased and offered to pay a further sum of K10,000.00 to the relatives of Ben Sala the other deceased but was refused for some unknown reason(s).

E.	AGGRAVATING FACTORS

20.	The prisoner drove a motor vehicle on a public highway with people on board without ensuring it was mechanically roadworthy.

21.	The lives of two (2) innocent people were lost and another received grievous bodily harm.

22.	Prevalence of the crime.

F.	SUBMISSIONS ON SENTENCE

23.	Section 328(2) and (5) of the Criminal Code provides that: 

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

	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 or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years”.

24.	Mr. S. Parihau for the prisoner recommended a term of imprisonment of 3 years to be wholly suspended because of the mitigating factors.

25.	Ms. T. Aihi for the State recommended a term of 2 years to 6 months but should a non-custodial sentence be imposed, an order be made that his licence be suspended and the prisoner pays compensation to the relatives of the deceased Ben Sala.

26.	I have had the opportunity of perusing the submissions filed by Counsels in which I was referred to previous similar cases.

27.	I reproduce some of them in a summary highlighting the relevant facts and sentences imposed in each case.

28.	The State -v- Kupo Nepo [2016] PGNC 10; N6178 Madang: Cannings J
2015: 10 December&2016: 4 and 12 February

The offender pleaded guilty to 2 counts of dangerous driving causing death of two passengers while driving along the Bruce Jephcott Highway in Madang.

The offender dangerously drove a Toyota Land Cruiser by driving too fast and failing to keep a proper look out.  He failed to see the road sign that indicated a road diversion and drove straight ahead.  The result being that he drove the vehicle into a dead end stretch of road requiring a sudden application of brakes on loose gravel.  The vehicle overturned.  The offender and all seven passengers on board were injured and two of the passengers died.

The prisoner was sentenced to 5 years imprisonment with no suspension.  Each count carried an imprisonment term of 21/2 half years.  Since there were two different victims.  

In this case the court held that the starting point for the offence of dangerous driving causing death upon a guilty plea is 30 months (21/2 years) imprisonment for each offence.

29.	The State -v- William Kuwoh [2019] PGNC 453; N8232 Lae: Kaumi J
2019: 26, July and 16 December

The prisoner drove dangerously and collided with an on-coming vehicle.  The driver of the other vehicle sustained injuries to his right leg. The prisoner was under the influence of alcohol.

The prisoner was sentenced to 24 months imprisonment with hard labour.  Further he was fined K1,000.00 to be paid within 2 weeks.  The imprisonment term was wholly suspended on the condition that he enters into his own recognizance and be of good behaviour for a period of 2 years with cash surety of K1,000.00.

In this case the court was of the view that the starting point was midway point of 30 months.

30.	The State -v- Philip Iparu [2005] PGNC 11: N2995 Wabag: Kandakasi J
2005: 11th and 18th October.

The prisoner pleaded guilty to one count of dangerous driving causing death. That he caused deaths of four persons.  He was unlicensed, inexperience and drove under the influence of alcohol.

The prisoner drove dangerously a motor vehicle namely Toyota Land Cruiser, Registration number TAB 044 along the Okuk Highway.

The prisoner approached a curve and lost control of the vehicle causing it to travel at high speed.  He lost control of the steering wheel and failed to slow down.  As a result, the vehicle went off the road for about 30 metres before plunging into Lai River, where it landed on a big stone.

31.	The State -v- Kim Ondu [2014] PGNC 136; N5747 Mendi: Kassman J
	2014: 4 June and 19 September
	
The prisoner pleaded guilty to 3 counts of dangerous driving causing death.  The prisoner was driving along the Okuk Highway from Mount Hagen to Mendi.  He was driving a Mazda Titan Dyna.  The two deceased persons were sitting in the cabin with him.  Two other passengers were sitting outside the vehicle.

The vehicle was travelling at high speed.  When the vehicle approached a corner, the prisoner lost control and ran into another vehicle that was parked on the road side. The prisoner’s vehicle hit this parked vehicle which in turned hit a pedestrian killing him instantly.

The prisoner’s vehicle then ran into another parked vehicle before skidding to the opposite side of the road.  The two deceased persons sustained serious leg injuries and could not be saved at the scene.  They died of their injuries.

The prisoner was sentenced to an imprisonment term of 3 years for each count.  Which were to be served concurrently.

32.	The State -v- Danley Kotapu (No.2) [2019] PGNC 27; N7704 Alotau: Toliken J2019: 15, 20 February

The prisoner was convicted after a trial for 3 counts of dangerous driving causing grievous bodily harm.

At the material time, the prisoner was a policeman.  He was transporting detainees from Giligili Correctional Institution into Alotau for their court appearances in the District Court on a Toyota Land Cruiser.  He was accompanied by two other officers. One sat in front with him while the other sat at the back guarding the 3 detainees with a gun.

The prisoner approached Gurney Airport Junction at high speed.  A vehicle coming from the opposite direction turned right onto the prisoner’s lane onto a feeder road leading into a 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 road.

The prisoner did not slow down or apply his brakes when approaching the turning vehicle which was in his full sight without any obstruction of his view.

The 3 detainees sustained various injuries to their  bodies.

The prisoner was sentenced to 18 months (1 and half years) for each count.  This totaled to 54 months.  In applying the one transection rule, these sentences were to be served concurrently.  Hence the prisoner was to serve 18 months.

The court exercised its discretion to wholly suspend the 18 months with conditions, one been payment of compensation of K1,000.00 each for the three counts within 2 weeks in default of which he be committed to Giligili Correctional institution.  Further that he enter into his own recognizance and be of good behaviour for 2 years and cash surety of K500.00.

33.	One of the most serious case of Dangerous Driving Causing Death is the case of State -v- Iparu [2005] PGNC 11; N2995, The driver was unlicensed inexperience and driving under the influence of alcohol at that time.  The vehicle ran off the road for 30 about meters before plunging into Lai River where it landed on a big stone instantly killing four (4) passengers.  The driver in that case was at fault when he failed to control or stopped the accident from happening thus was considered a worse case of dangerous driving causing death.  In  that case, his Honour Kandakasi  J, sentenced the prisoner to 3 years IHL after considering the mitigating factors that the prisoner pleaded guilty, he was a first time offender, and has paid customary compensation.

34.	In the State -v- Uwantuna [1989] N726, the prisoner who was a highway truck driver drove a truck on the wrong lane and collided with a 15 seater bus killing 12 people.  Driving on the wrong side of the road without duty of care and the prisoner was sentenced to 2 years with hard labour by His Honour Woods J. Causing the death of more than one person is considered aggravating and very serious.

35.	Another serious or aggravated type of case which was recently dealt with in Wewak was that of CR 1247 of 2013; State -v- Martin  Pano.  In that case, the prisoner drove a Hino passenger Truck down the Koiken Mountain in Wewak when the brakes fail and he lost control of the vehicle which eventually went of the road to a cliff and killed 11 people who were all passengers at that time.  In that case, the prisoner was sentenced to 2 years imprisonment in light labour.

G.	DECISION ON SENTENCE

36.	This is not a murder case as provided for under Sections 252 or 301 of the Criminal Code where dangerous or offence weapons were used to inflict wounds, resulting in death or bodily injuries.

37.	It an offence committed from the improper management of a public motor vehicle as such no intention to kill or to cause bodily injuries was involved.

38.	The prisoner showed remorse resulting in him paying a K17,000.00 to the   relatives of one of the deceased.  See State -v- Paina [2015] PGNC 12 or N5867 per Cannings J.

39.	While lives were lost, I am convinced of the fact that the relatives of the deceased persons and the one who sustained serious injuries would appreciate that the prisoner did not cause what happened through any intention of his.

40.	The cases which I have referred to in this judgement all involve motor vehicles having accidents whilst the motor vehicles were moving forward or were being driven forward, as opposed to reversing or were being driven at high speed and the motorists failed to exercise due care and attention in the management and control of the motor vehicles.

41.	This case involves brake failure which caused it to reverse and, the accused took steps to avoid what was going to happen as he stated in the pre sentence report that “many lives could have been lost if he did not steer (the vehicle) to the drain at the side of the mountain but he prevented it and only two (2) lives were lost and one sustained grievous bodily harm”.

42.	Conversely if the vehicle was being driven down  a hill, many lives could have been lost and grievous bodily harm sustained.

43.	These revelations convince me that an appropriate non-custodial sentence should be imposed because a pre sentence report has been presented on behalf of the prisoner – Public Prosecutor -v- Dan Hale [1988] SC564 where the Supreme Court of Justice said that a non-custodial sentence is not to be imposed if a pre sentence report is not available.

44.	I therefore impose a head sentence of 3 years to be served in prison.  The time in custody is not be deducted.

45.	As two people died, the sentence is imposed for both deceased persons to be served concurrently in the light of the reasons for decision in the case of Public Prosecutor -v- Keru [1981] PNGLR 8 and Mase -v- The State [1919] PNGLR 88.

46.	However considering the fact that the prisoner pleaded guilty to the three (3) counts and has paid K17,000 to the relatives of the deceased Sam Walepa and is willing to pay some more compensation to the relatives of the deceased Ben Sala and offered to give a fermentary kit, I order that the whole of the sentence be suspended upon the following conditions:

(i)	that the prisoner be of good behaviour for the period of the suspendedsentence;
(ii)	that his driver’s licence is suspended for twelve months as from today;
(iii)	that on the basis ofequity and fairness to the relatives of the deceased Ben Sala, the prisoner pays the sum of K5,000 be paid to his relativeswithin the period of suspension;
(iv)	that the prisoner informs the Probation and Parole Officer of Maprik of the payment(s) made to the relatives of the deceased Ben Sala as and when made;
(v)	that he pays a fine of K1,000.00within 7 days from today;
(vi)	The Probation Parole Officer of Maprik to keep receipt(s) and give details to the Registry of the National & Supreme Court of Justice, Wewak.

47.	The whole of the period is suspended upon the above conditions.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant