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State v Pokiap [2023] PGNC 410; N10561 (15 March 2023)

N10561

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 129 OF 2023

THE STATE

V

KAPIN POKIAP

Lorengau: Batari J
2023: 15^th June

CRIMINAL LAW – sentence – dangerous driving causing death – offender drove over the victim sleeping in the middle of the road in circumstances falling short of managing the vehicle with reckless regard for the lives and safety of other road users.

Cases Cited
The State v Kevin Marcellin Daniel (1980) N283
The State v Win Picinon Thomas (un-numbered NC Judgment) CR No. 837 of 1994
The State v Bluey Hanua (1997) N1625
The State v Paul Kalu (2011) N5270

Counsel
Mr Pondros Kaluwin, for the State
Mr Kusunan Pokiton, for the Accused

SENTENCE

15^th March 2023

1. BATARI, J: An indictment presented against Kapin Pokiap on 13 June 2023 charged that he drove a motor vehicle dangerously and thereby caused the death of another person. He pleaded guilty. This is his sentence.
2. The facts which also form the basis of the sentence are brief. On the night of 15 April 2021 between the hours of 11.00 pm and 12.00 midnight at Lorengau, Kapin Pokiap drove his Toyota Hilux double-cab motor vehicle along a street road towards his residence. Roadside revellers shouted at him to switch off his LED flood lights. He responded and continued driving with his emergency lights and ran-over the deceased Alfred Thomas who was then on the road, lying asleep with his head towards the middle of the road.

The Charge of Dangerous Driving Causing Death

3. The offence of dangerous driving causing death, also commonly known by the acronyms, DDCD is set out in s. 328 (2) and (5) of the Criminal Code. It is an indictable offence triable summarily, with the maximum penalty of five years imprisonment. Section 328 (2), (5) reads:

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

(5) If the offender causes the death of or grievous bodily harm to another person, he is liable on conviction on indictment to imprisonment to a term not exceeding five (5) years.”

4. The prescribed maximum term is not mandatory. Section 19 of the Code gives the Court wide discretion to impose the maximum penalty or use one or a number of the sentencing options open to the Court.

Background and Circumstances of the Offender

Custody

5. The essence of time in custody is the experience the offender would have learned not to reoffend, because of the severe restrictions on his rights and freedom of choices in lawful confinement. The Court has discretion to deduct any pre-trial custody period from the head sentence or take the pre-trial custody into consideration in deciding the head sentence. In this case, time spend in custody was six weeks.

(ii) Assistance to the Police

6. The relevance of this factor is the co-operation with police in investigating a case that might have proven difficult due to the lack of lead evidence or due to the complex nature of the offence.
7. In this case, it is a simple case of DDCD. But it could have proven difficult for the police to investigate had the offender denied and not cooperated in the police investigation. The incident happened in the night, and he could choose not to make early admissions. It is also assumed that the deceased was still alive lying in the middle of the road.

(iii) Plea of guilty

8. It is settled, the fact of a guilty plea ought to result in some discount in practical terms. The outcome in the sentence ought to reflect the merit of pleading guilty. That effect can itself, be an incentive to plead guilty. Too, what is apparent in the sentencing result should dispel any reservations that a reference to, ‘take into account, the guilty plea’, is mere verbiage.
9. In, The State v Win Picinon Thomas (un-numbered NC Judgment) CR No. 837 of 1994, Los J considered that:

"... an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and taken into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment."

10. I have adopted the same approach in dealing with the plea factor, following what I had earlier stated in, The State v Bluey Hanua (1997) N1625, that with the increasing length, complexity, and costly criminal trials at public expenses, it is important, guilty persons be encouraged to enter honest pleas of guilty at the earliest opportune time. The incentive must of course come from what is apparent on the final sentence of the Court. (See also, The State v Paul Kalu (2011) N5270).
11. I will sentence the offender on the basis of his guilty.

(iv) Personal circumstances

12. The offender is 32 years old, married man with two children ages 8 and 11 years. His wife is expecting with their third child. He comes from Tavi Village, Lorengau, Manus Province.
13. The family sustains itself from a canteen earnings operated from its residence at Ward 7, Lorengau town and general street sales.
14. The offender follows Evangelical Church of Manus (ECOM) Faith and has a good character reference from the Church’s Senior Pastor and National Superintendent of ECOM, Andrew Kupesan. This is his first conviction.

(v) Remorse

15. Kapin Pokiap expressed remorse when asked if he has anything to say on sentence. Following the commission of the offence he cooperated with the police and made early admissions. His conduct adds credit and value to his allocutus statement. This factor is in your favour.

(vi) Conduct following the Commission of the offence

16. The offender helped to rush the victim to the hospital. He then reported the incident and made admissions to the police. He also paid compensation in excess of K8, 000.00 in cash and kind to the relatives of the deceased.

Considerations

17. The offence of DDCD usually presents some difficulty in sentencing because the element of death gives the perception of every unlawful killing being the most serious irrespective of the underlying circumstances and cause of death. It is trite, any unlawful killing is always a very serious matter.
18. However, in my view, the offence of DDCD cannot be treated or equated with unlawful killings like wilful murder, murder, manslaughter, and infanticide. Those unlawful killings involve the element of intent to cause death or intent to cause grievous bodily harm, or the degree of culpability is reduced by reason of provocation or where death resulted from breach of duty of care under s. 287 of the Criminal Code.
19. The offence of DDCD on the other hand involves negligence which prosecution must prove beyond the civil standard required to establish negligence but not to the higher standard required for manslaughter killing: The State vs. Kevin Marcellin Daniel (1980) N283.
20. The intention of the legislature in s.328 is clearly, that deaths arising out of negligent, reckless, irresponsible or culpable driving is a less serious offence, though it may be treated as manslaughter where high degree of negligence or recklessness or culpable driving is present.
21. Against the offender are the following facts:
    • (i) Unregistered vehicle

(ii) Driving without lights in the night in the area where other road users including pedestrians are expected.

22. In his favour:
    • Only one person was killed,
    • He was sober,
    • Assisted his victim,
    • Reported the incident and cooperated with police,
    • Made early admission to police,
    • Pleaded guilty,
    • Expressed remorse,
    • First offender,
    • Good background.
23. Both counsel cited a number of comparative cases on DDCD sentencing mostly by the National Court. I bear in mind too that DDCD cases are primarily in the domain of the District Court and District Magistrates. The sentencing cases from the District Courts are also relevant points of references.
24. The cases both counsel rely on, involved in most cases, persons committing the offence of DDCD whilst under intoxication. Sentences within the range of two to five years imprisonment are considered appropriate with three years being the most common term being imposed.
25. Mr Pokiton submitted a term of six months to 12 months would meet the justice of the case before this Court. Public Prosecutor, Mr Kaluwin submitted a suspended sentence would be deserving on the facts.
26. The offender is sentenced to 18 months imprisonment. I also order that:
    1. His driving licence be suspended and that he be suspended from driving for 2 years.
    2. He takes immediate steps to remove the LED lights fittings on vehicle and revert back to the factory-made low beam and high beam light fittings for all occasions the vehicle is operational and road worthy.
    3. Immediately register the vehicle if it is still unregistered.
    4. Within one month of these orders, he surrenders the vehicle to the police and the MVIL office in Lorengau for inspection and confirmation of compliances with the court orders.
    5. The probation office shall file with the National Court Sub-registry in Lorengau, a report on compliances with these orders by the offender.
27. The whole term is suspended and the offender be placed on a good behaviour bond to keep the peace and be of good behaviour for two years.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused