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State v Kange [2024] PGNC 245; N10912 (17 July 2024)

N10912

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 906 OF 2024

THE STATE

V

JERRY KUA KANGE

Minj: Miviri J
2024 :10^th & 17^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – DDCD S 328 (2) (5) CCA – Tyre Placed on Edge of Road – Vehicle Overturned Off Road – Deceased Passenger On Vehicle Over Loaded – Negligent Driving – First Offender – Guilty Plea – K 19000.00 Compensation Paid – Unnecessary Loss of Life – Custodial Sentence – Part Suspension.

Facts
Accused was the driver of a Toyota Landcruiser Open Back Utility driven dangerously on a public road. He placed the tyre of the vehicle to the edge of the road and overturned the vehicle down a cliff because the vehicle was overloaded. The deceased was a passenger. She suffered internal injuries and died as a result.

Held
Guilty Plea
First Offender
Negligent Driving
Unnecessary loss of Life
Part Custodial Part Suspension.

Cases Cited:
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020)
Gamoga v The State [1981] PNGLR 443
State v Kibikibi [2024] PGNC 174; N10822 (24 May 2024)

Counsel:
F. K. Popeu, for the State
D. Pepson, for Defence

SENTENCE

17^th July 2024

1. MIVIRI J: This is the sentence of Jerry Kua Kange who has pleaded guilty that he on the 16^th day of July 2023 at Koinamba road in Jimi District, Jiwaka drove a Toyota Landcruiser open back upon the public road there dangerously causing the death of Juliet Kola.
   
2. On the 16^th day of July 2023, prisoner was the driver of a Toyota Landcruiser open back registered number HAZ 818 upon that road overloaded and heading to Banz. Along the way at the edge of a cliff he put the tyre towards the edge where rain had softened the underneath of the road. The ground gave way. His vehicle capsized off the road tilting with the passengers down that cliff coming to a rest after a fall of 4 to 5 meters.
   
3. He was indicted pursuant to section 328 of the Criminal Code of dangerous driving causing death. Which section is in the following terms: -

(1) For the purposes of this section–

“driving a motor vehicle on a road or in a public place dangerously” includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including–

(a) the nature, condition, and use of the road or public place; and
(b) the amount of traffic that–

(i) is on the road or in the public place at the time; or

(ii) might reasonably be expected to be on the road or in the public place;

“public place”–

(a) includes every place of public resort open to or used by the public as of right and any field, ground, park, reserve, garden, wharf, pier, jetty, market, passage or any other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, whether or not it is at all times so open; but
(b) does not include a track that is used for the time being as a course for the racing or testing of motor vehicles, and from which other traffic is excluded at the time.

(2) A person who drives a motor vehicle on a road or in a public 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.

(3) If the offender has been previously convicted, on indictment or summarily, of an offence against Subsection (2) he is liable on summary conviction to a fine not exceeding K400.00 or to imprisonment for a term not exceeding 12 months, or both.

(4) If the offender has been twice previously convicted, on indictment or summarily (or once on indictment and once summarily) of an offence against Subsection (2), the court shall, on conviction, impose, as the whole or part of the punishment, imprisonment.

(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.

4. The offender admitted the offence upon presentation of the indictment. He was a first offender is 28 years old married with two children aged 6 and 3 years old originally from Wara Minimb in South Waghi, Jiwaka Province. A first offender he has had formal education to the primary school level in Kudjip Primary School. He earns his keep by driving as was the case on this day. Occasionally he sustains life on sale of coffee cherries from his sales from his own land. But that is in the coffee season.
   
5. Driving is the way he sustains usually when he is paid about K200. That he uses to sustain life for his family including his wife and children. He is also looking after his siblings, two sisters who were married but whose spouse have left them with their four children, he looks after together with their mother.
   
6. Presentence report was ordered by this court initially when he pleaded guilty to on the 10^th July 2024 which report confirms the details set out above including that payment of K 20,000.00 was made and 13 pigs valued at K2000 each to the family of the deceased and relatives. He does not have any more savings left if ordered to pay further including any court fine if ordered. That payment of the compensation has left he with his family obligations to pay back to those who have helped in that compensation payment. He will not be able to pay further should orders be made in that regard.
   
7. And it is a lot of money by the prisoner to settle what he has caused. Criminal Compensation is only K5000: Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020) under the Criminal Law (Compensation) Act. Here K19, 000.00 in cash with 13 live pigs valued at K2000 each. It is a reflection of the goodness of the heart of the prisoner. He has taken responsibility for the offence. Not only has he stepped out to make the payments. But has followed with a guilty plea. The totality of his conduct deserves leniency given that the matter is now at peace between the parties. Which is confirmed material by the views of the husband of the deceased in the presentence report. I take due account of that fact.
   
8. A life has been lost unnecessarily because of negligence that went beyond the prudence of a driver given his driving on that road. The vehicle is fair new and does not appear to have any mechanical defects set out by the photographs attached to the file and its mechanical report. It is clear that the prisoner was simply negligent. He overstepped the mark of a prudent driver. But a life has been lost, medical report from the Mt Hagen Provincial hospital dated the 16^th July 2023 under hand of Doctor Glen James confirms that the deceased died from a cervical spine injury in that accident.
   
9. The maximum penalty prescribed by law is 5 years maximum under section 328 (5) of the Code set out above. The sentence here will fall part custodial part suspension because of the death involved and negligence set by the prisoner in driving. It is a winding road and care should have been exercised in the loading of the vehicle. It contributed in the way he failed to negotiate the bend and ended in that way leading to the death. Vehicles will continue to be used but care must always be taken in the driving by all drivers. Passengers like wise must not contribute to their demise. They must and ought to help safe transport.
   
10. This is a guilty plea and leniency must be exercised particularly considering the compensation that has been paid effects of which are upon the prisoner currently repaying the debts together with his family. I consider that this is a heedless driving not careless over and beyond diligence given: Gamoga v The State [1981] PNGLR 443. In my view it is less serious than the recent case seen by this Court of State v Kibikibi [2024] PGNC 174; N10822 (24 May 2024) drawing 3 years IHL. I am not imposing custodial term here. By his facts he is entitled to leniency and I consider that a sentence at the mid-range would be justified.
    
11. I consider in all the circumstances that a fair justice and proportionate sentence given here would be 2 years imprisonment in Hard labour. He will spend 1 year 6 months IHL in jail. Remaining 6 months will be suspended on a 1-year GBB.
    

Orders Accordingly
__________________________________________________________________
Office of the Public Prosecutor : Lawyer for the State
Office of the Public Solicitor : Lawyer for the Defendant