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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 2197 OF 2023
BETWEEN
THE STATE
AND
SAM PAUL KAMI
Offender
Wewak: Makail, J
2024: 04th, 11th & 12th April
SENTENCE – Plea – Guilty – Dangerous driving causing death – Aggravating and mitigating factors considered – Guilty plea – Cooperation with police during investigations – Youthful offender – First time offender – Remorsefulness – Compensation – Loss of life – Offender driving at high speed – Collision of three motor vehicles – Loss of support to children – Loss of service to province - Statutory limit of compensation of K5,000.00 – Purpose of compensation – Purpose of punishment – Personal and public deterence – Criminal Code – Section 328(2)&(5) – Criminal Law (Compensation) Act, 1991 - Section 5(3)(b)
Cases Cited:
Goli Golu v. The State [1979] PNGLR 659
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Eric Papen (No 2) (2009) N3639
The State v. Mero Jim Goroa (2010) N4175
The State v. Beven Hoivo (2012) N5157
The State v. Keving Jiki (2013) N5379
The State v. Jerry Javingut (2015) N6016
The State v. Kupa Nepo (2016) N6178
The State v. Willie Walia (2019) N7961
The State v. Bernard Boski (2020) N9706
The State v. Richard Fairinguma (2021) N9096
The State v. Karo Gamoga [1981] PNGLR 443
The Public Prosecutor v. Sima Kone [1979] PNGLR 294
Counsel:
Ms D Ambuk, for State
Mr A Kana with Mr A Koraino, for Offender
SENTENCE
12th April 2024
1. MAKAIL, J: The offender pleaded guilty to, and was accordingly convicted of one count of dangerous driving causing death of one Yane Salle contrary to Section 328(2)&(5) of the Criminal Code.
Brief Facts
2. On arraignment, he pleaded guilty to the following facts, sometimes between 8:00 am and 9:30 am on 21st May 2023 the offender was returning from Brandi Secondary School and was approaching the Moem and Brandi intersection. The offender was driving a white Five Door Landcruiser with red and black stripes and bearing registration no: WAH 421 belonging to the River Rest Hire Car Limited.
3. At the Moem and Brandi intersection, the vehicle was travelling at high speed and the offender lost control of it and it crashed into another vehicle a maroon Open Back Toyota Landcruiser bearing registration no: JAB 637.
4. Realizing that he had crashed into a vehicle, the offender attempted to steer his vehicle to the other side of the road, however, due to the speed at which the vehicle was travelling, the vehicle crashed into another vehicle also a Five Door Toyota Landcruiser bearing registration no: PAF 337.
5. The impact of the crash caused the vehicle bearing registration no: PAF 337 to flip several times before landing on its head. The driver of the vehicle one Yani Salle was seated in the vehicle at the time of impact. As a result of the impact, he died. It was later discovered that the offender had fallen asleep behind the wheel of the vehicle he was driving and caused the vehicle to run off.
Prescribed Penalty
6. According to Section 328 of the Criminal Code, the offence of dangerous driving causing death carries a maximum penalty of five years term of imprisonment. The maximum penalty
is reserved for a worst case: Goli Golu v. The State [1979] PNGLR 659.
7. Section 19 of the Criminal Code also confers discretion on the Court to impose a penalty less than the prescribed maximum penalty. In deciding whether the offence falls into the worst category or one where a lesser penalty might be appropriate to impose, each case must be considered on its own peculiar facts and circumstances: Lawrence Simbe v. The State [1994] PNGLR 38.
Allocutus
8. The offender expressed remorse for his actions to the Court and the family of the deceased. His actions were not done on purpose but purely accidental. He plans to return to school to complete his education and pleaded for a non-custodial sentence.
Antecedent Report
9. The State tendered an antecedent report. There are no prior convictions relating to the offender in the antecedent report.
Pre-Sentence Report
10. On the offender’s application, the Probation Services has provided a pre-sentence report. Except for one contentious point in relation to compensation, the majority aspects of the report favoured a non-custodial sentence.
11. In addition, it outlined the personal details of the offender as being 23 years old single male from a mixed parentage of Autonomous Region of Bougainville father and East Sepik Province mother and has been educated up to Grade 11 at Bamasaka Secondary School in 2021.
12. Due to a permanent injury to his right-hand ring finger when it was severed in an attack by a mentally unstable person, he left school and was taken in by his uncle to drive for his River Rest Hire Cars business. He also works at his own garage workshop as a mechanic and services motor vehicles. He stopped drinking after the motor vehicle accident.
13. His father is a pastor with the Seventh Day Adventist Church and District Director responsible for the West Coast area of Wewak District while his mother works at Water Aid as Operations officer. He lives with his parents at Yawasoro in Wewak.
Mitigating Factors
14. It is common ground between the parties that the offender’s plea for leniency is supported by him pleading guilty, cooperation with the police during investigations, being a first-time offender, a youthful offender and his remorsefulness. Additionally, the offence was committed by the offender when he fell asleep while driving as opposed to being drunk and driving.
Aggravating Factors
15. Against those, the offence is aggravated by a loss of life, the offender drove at high speed, accident occurred on a public road, collision between three motor vehicles, loss of support for children of deceased, loss to the province because the deceased was a public servant serving in East Sepik. Added to these, the offence is prevalent in the country.
Compensation
16. The prime objective of criminal law and criminal sanctions is to punish the offender for the wrong committed as opposed to compensation. Compensation is a means to restore peace and harmony between the offending party and the injured party. Under Section 5(3)(b) of the Criminal Law (Compensation) Act, a statutory limit of up to K5,000.00 is fixed for that purpose.
17. However, it has been the case that the offending party has paid monetary compensation over and above the statutory limit of K5,000.00 at the discretion of the Court under Section 5(3) of the said Act. Whether a sum over and above the statutory limit may be considered as an extenuating circumstance is open to debate but it is the case here that a sum of K10,000.00 was paid to the deceased family.
18. This is where the parties are divided. The offender maintained that he has paid compensation to the deceased’s family while the children of the deceased led by eldest son denied receiving the money. The latter claiming that out of K10,000.00, K5,000.00 was for funeral expenses and the balance was given to the deceased brother and work colleagues. There appears to be no serious contest to the latter’s claim.
19. On a strict application of the purpose of compensation as one of restoring the injured party to the original position as far as money can do, it is not a complete compensation because the children of the deceased who depend on his support for daily living and education received nothing from the K10,000.00 that was paid by the offender.
Sentencing Range
20. It is also common ground that a starting point for the sentence is 2 years and 6 months. It was submitted for the State that given the presence of aggravating factors, they outweighed the mitigating factors, and the starting point of 2 years and 6 months should be imposed. As to suspension of the sentence in part or wholly, the State remained open.
21. The offender’s counsel submitted for a wholly suspended sentence placing weight on the payment of compensation as evidence of restoration and peace between the parties. However, as noted, out of the sum of K10,000.00, K5,000.00 was for the purpose of funeral expenses and the other half did not reach the children of the deceased.
22. The sentencing trend for this offence based on past cases such as The State v. Eric Papen (No 2) (2009) N3639, The State v. Mero Jim Goroa (2010) N4175, The State v. Beven Hoivo (2012) N5157, The State v. Keving Jiki (2013) N5379, The State v. Jerry Javingut (2015) N6016, The State v. Kupa Nepo (2016) N6178, The State v. Willie Walia (2019) N7961, The State v. Bernard Boski (2020) N9706 and The State v. Richard Fairinguma (2021) N9096 starts from custodial to non-custodial sentences and between 2 to 4 years term of imprisonment.
Prevalence of offence
23. Additionally, there is no question that based on the cited reported cases above and many more not referred to in the judgment, the offence is prevalent nationwide and in this province. This will attract a strong deterrent sentence.
Recklessness
24. Another relevant factor is the cause of the motor vehicle accident. One of the causes is the driver driving at high speed and losing control of the motor vehicle at some point before the accident. Another is the driver being drunk and driving before losing control of the motor vehicle resulting in the accident. A failure to stop at a give way point to allow on coming motor vehicle with right of way to pass is another cause of accidents.
25. This case falls into the first group of cases because the offender was driving at high speed before colliding with a second motor
vehicle and its impact caused his motor vehicle to run off the road and into the deceased’s stationary motor vehicle. The
impact of the collision caused the deceased’s stationary motor vehicle to flip several times before landing on its head resulting
in the death of the deceased.
26. While it is accepted that the offender had no intention to cause the death of the deceased because he blamed it on fatigue due
to driving for long hours before the accident, his own admission of driving at high speed will be held against him. It was reckless
driving as opposed to heedlessness or inadvertence: The State v. Karo Gamoga [1981] PNGLR 443 and The Public Prosecutor v. Sima Kone [1979] PNGLR 294.
Deterrence
27. Wholly suspended sentences were imposed in The State v. Kupa Nepo (supra) due to poor road condition which caused the accident. Even wholly suspended sentences were imposed in cases where the offender
was drunk and driving. Significant sum of money was paid in compensation to the deceased’s family appeared to persuade the
Court to wholly suspend the sentences as was the case in The State v. Bernard Boski (supra) and The State v. Richard Fairinguma (supra).
28. However, it is a useful reminder that in criminal proceedings, the statutory limit for monetary compensation is K5,000.00 under
Section 5(3)(b) of the Act (supra). A monetary compensation more than K5,000.00 must not be automatically treated as a special extenuating
circumstance favouring the offender such that the offender, in the eyes of the public, for whom the State represents, would view
the offender as escaping punishment. Because the criminal law is to punish the offender, and compensation should not be used to
relieve the offender from being punished for the commission of the offence.
29. The punishment must correspond to the offence and where there is loss of life due to reckless driving, as in this case, it must be reinforced that the sentence must have that deterrent effect on the offender and the wider community. A life is lost for eternal perpetuity and the children who were once supported and dependent on the deceased find themselves without one. The people of the province of East Sepik feel and expressed similar sentiments as those of deceased’s children. Life onwards for them must and will be without the deceased. There is room for the offender to make restitution to the children of the deceased, at the very least to compensate them for the loss of their father. This will be in the form of cash money and in addition to the sum of K10,000.00 paid initially. The Court will fix a sum of K5,000.00.
Conclusion
30. For these reasons, the State’s submissions that the starting point of a sentence of 2 years and 6 months term of imprisonment be imposed as head sentence is upheld. From this, part of the sentence will be suspended because of the offender’s guilty plea, cooperation with the police during investigation, being a first-time and youthful offender, being remorseful and because of his impressive positive personal attributes and characteristics. Given this, a term of 1 year and 6 months is suspended, leaving a balance of 1 year term of imprisonment for the offender to serve. There will be no deduction from the balance of 1 year for time spent in pre-trial custody because the offender was on bail. The term of 1 year and 6 months is suspended on the conditions as set out in the final order hereunder.
Order
31. The orders of the Court are:
(a) The offender shall pay a sum of K5,000.00 to the children of the deceased within 6 months of this order which shall be by Friday 11th October 2024.
(b) The offender shall file proof of payment with the Assistant Registrar of the Wewak National Court and Probation Officer forthwith.
(c) The offender shall be placed on good behaviour bond for the duration of the suspended sentence.
(d) The offender shall report to the Probation Officer on the first Monday of each new month.
(e) The Probation Officer shall prepare a report to submit to the Court at the end of each six-month period on the progress of compliance with the above conditions and rehabilitation of the offender.
(f) If the offender fails to comply with or breaches any of these conditions of suspension, he shall be arrested and returned to prison to serve period of the suspended sentence of 1 year and 6 months.
________________________________________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender
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