N10856

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 489 OF 2023

THE STATE

v

JOE MANGAIA

Kimbe:  Numapo, J
2024:  11th & 13th June

CRIMINAL LAW – Particular offence – operating a small craft in a reckless, dangerous and careless manner – s. 27 (1) (a) & (2) Small Craft Act – passengers tossed over-board due to sudden and dangerous turn– Analogy to be drawn to dangerous driving causing death in motor vehicle.

Held:

(i)	Prisoner was careless and reckless in operating the small craft without due consideration of the safety of his passengers.  

(ii)	Prisoner is the skipper of the small craft is therefore, responsible for the safety of his passengers however, he had no regard whatsoever for the safety of his passengers in the manner he was operating the boat.

(iii)	Prisoner is sentenced to four (4) years IHL. 

(iv)	Term of imprisonment to be suspended with conditions.

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
State v Michael Gilio & Ors (2021) N8942

Counsel:
A. Bray, for the State
N. Loloma, for the Defence

SENTENCE

13th June 2024

1.      NUMAPO J: This is a decision on sentence. The prisoner JOE MANGAIA 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 to which the prisoner pleaded guilty were that; on the 22nd of June 2022 at around 3pm, between Garu and Kilenge village, the prisoner was operating a small 40 horse Yamaha outboard motor.  Prisoner was carrying some passengers on board and was travelling at a full speed. His cap flew off his head and he swerved the boat suddenly to pick up his cap from the water. The sudden turn caused the deceased to fell over-board into the sea. He fell directly towards the propeller side of the boat and was hit on the head. He died almost instantly. 

B.	THE LAW

3.    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

4.     In their respective submissions on sentence, Counsels referred to a similar case I did in 2021 State v Michael Gilio & Ors (2021) N8942 and submitted that the similar sentence be imposed in this case. In terms of case authority, there is very few in between relating to small craft accidents under the Small Craft Act. Counsels often urged the Court 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 somewhat 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. 

5.     With respect to the sentencing guidelines in dangerous driving causing death, there are some Supreme Court decisions that makes imprisonment as the most preferred option of punishment for dangerous and reckless driving.(See: The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165 at 168) where the court held:-

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

6.     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.”

7.     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.”

8.     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.” 

9.     Similar words are used in the Small Craft Act and the Criminal Code Act such carelessness, recklessness and negligence in the operation of a small craft or a vehicle. It could mean therefore, that it attracts the same level of responsibility however, the penalties under the Small Craft Act is much higher than that prescribed for 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.

D.	PRESENT CASE

10.    The facts of the case showed that the prisoner was careless and reckless in the way he operated the outboard motor. Prisoner was operating the boat on a high speed and wasn’t seem to be too concerned about the safety of his passengers on board. His cap flew off and he made a sudden turn which caused the deceased to fell over-board and straight onto the motor of the boat that killed him almost instantly.

11.    Both Counsels submitted that this is not a worse type offence and the Court should not consider the maximum penalty prescribed by law but consider a lesser sentence. Counsels asked the Court to take note of 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.

12.     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 2-5 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.

E.	AGGRAVATING AND MITIGATING FACTORS AND CIRCUMSTANCES AND EXTENUATING CIRCUMSTNACES

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

1.	Aggravating factors and circumstances:

(i)	  Offender was reckless, careless and negligent in the operation of the out-board motor;

(ii)	   A passenger has died from the injuries he sustained from falling over;

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

2.	Mitigating factors are:

(i)	    First time offender

(ii)	     Pleaded guilty early

(iii)	Expressed remorse.

F.	PRISONER’S BACKGROUND AND ALLOCUTUS

14.     Prisoner is 34 years old and comes from Kilenge village Gloucester, West New Britain Province.  He is married with two children. He completed his training at Kimbe Technical College but is unemployed. He lives in the village as a subsistence farmer.

15.     In his allocutus, the prisoner said:

“I apologize to the family of the deceased. This was an accident, I have no intention to cause his death. I ask the Court to give me a suspended sentence so I can serve my term outside. That is all.”

G.	APPROPRIATE SENTENCE 

16.     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, a person has died.

17.     I said this before and will say it here again that, it is becoming too common these days that many of these small crafts are operating without proper safety gears and equipments on board. Overloading of small crafts is becoming a big problem with little or no regard to safety of passengers. Too many people are missing in our waters simply because people are being careless when going out to sea. This practice must stop.  

H.	DECISION

18.    I make the following Orders:

(i)	  I sentence the prisoner Joe Mangaia to Four (4) years IHL.  

(ii)	    I further order that a sum of K5000 to be paid to the family and relatives of the deceased within 3 months of this Order pursuant to section 5 of the Criminal Law (Compensation) Act 1991 under the supervision of the Police or Probation Office.

(iii)	One (1) year of the total term of imprisonment to be suspended if compensation is paid to the victims leaving a balance term of Three (3) years imprisonment term to be served. 

(iv)	I further deduct One (1) year and Ten (10) months for the pre-trial custody period.

(v)	     Prisoner will serve a balance of Two years and Two (2) months IHL.

(vi)	If compensation is paid, the total remaining term to be served would be One (1) year and two (2) months IHL.

Orders accordingly.

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