Kilo v Amos [2007] PGDC 13; DC532 (14 March 2007)

DC532

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 81 of 2006

BETWEEN

DAVID KILO
Informant

AND

ALBERT AMOS
Defendant

Goroka: M Gauli, PM
2007: March 02, 14

CRIMINAL- Particular offence – Dangerous driving causing death – Defective vehicle – Driving under the influence of alcohol – Driving on expired license – Plea – Guilty – First offender – Compensation.

Cases Cited
State –v- Manga Kinjip [1976] PNGLR 86
State –v- Dela Tamu [1971] PNGLR 59
Karo Gamoga –v- State [1981] PNGLR 443
State –v- Sima Kone [1979] PNGLR 294
State –v- Alphonse Nanta Raphael [1979] PNGLR 47
State –v- John Peter Kot N2027 (CR.559 of 2000) (Unreported)

References
Criminal Code Act, s. 328 (2) (5), s. 19 (1) (b) (d) (e)
District Court Act, s. 132; s. 199 A
Probations Act, s. 16 (2)

Counsel
Prosecutor – Sergeant Yamuje, Goroka Police Station
Defendant – In Person

14 March 2007

DECISION OF THE COURT

M Gauli, PM: The defendant pleaded not guilty to a charge of dangerous driving causing death, pursuant to Section 328 (2) (5) of the PNG Criminal Code Act, Ch. 262. These provision States and I quote:

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

(3) - - - - -

(4) - - - - -

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

2. The facts to which the defendant has pleaded guilty are as follows. On Friday 24 November 2006 at about 9:00 o’clock at night the defendant Albert Amos drove a motor vehicle towit a Toyota Hiace 15 seater PMV bus registration number P. 137Y from Daulo Pass to Asaro Station along the Okuk Highway. The vehicle is owned by one Miss Margaret. The defendant was drunk. He stopped at Ongorufa village in Daulo District and picked up Michal Asine, Simba Lulue and John David. They proceeded down the steep mountain on third gear and at high speed. As they were approaching a sharp corner the vehicle moved to the right lane. The defendant applied brakes but the brakes failed and the vehicle ran off the road and rolled down the cliff. In that accident, one of the passengers namely John David Laminapo, a male aged 27 years of Asehoga village in Goroka died. The deceased sustained a fracture to the skull and bruises to his right temporal region, right and let side loin area, his right lobe of the liver smashed and the spleen ruptured. At the time of the accident the defendant had a Provisional Class One licence. That licence has expired in about June 2003 and that it was lost at the time of the accident. The defendant was drunk at the time of driving the vehicle up to the time of the accident. He became aware of the defective brakes earlier that day.

3. I then read through the contents of the statements and the Record of Interview in the file tendered to Court. Having considered the contents of these documents as presented I find that the defendant had made his plea of guilty in plain and clear terms. His Honour O’Leary AJ, said in The State –v- Manga Kinjip [1976] PNGLR 86 AT 87 that:

“It is well established that a judge should only accept a plea of guilty to a charge if it is made in plain, unambiguous and unmistakable terms. If it is not, he should direct that a plea of not guilty to be entered and that the case be allowed to go to trial in the usual way”.

4. The defendant in his statement said and I quote:

“I do not dispute the facts, the facts are true. I have paid K9, 000.00 cash plus four pigs as compensation. The two pigs were live ones. The value of the two pigs were K800.00 and K1, 000.00 respectively. I am a villager and married with two children, the elder child been three years old. I am a subsistence farmers supporting my family”.

5. From his statement in defence it is obvious that he made his plea in plain and clear terms and there is no ambiguity in his plea, I am satisfied that it is safe to accept his plea of guilty, to the charge. I found him guilty of dangerous driving causing death. I then adjourned the case for sentencing on 14 March 2007.

6. In considering the sentence I take into account of the followings. The vehicle the defendant drove was a PMV bus for which he did not have a proper valid driving license that is a class six driving license. All the defendant had or alleged to have was a provisional class one driving licence. Secondly he was drunk at the time of driving the vehicle. It is possible that he was driving while under the influence of alcohol. Thirdly his foot brakes were defective while knowing he had defective foot brakes, he was driving down a steep descend at high speed on third gear.

7. It is well established law in Papua New Guinea that in charges of dangerous driving causing death, the manner of driving must not only be dangerous but that there is some fault on the part of the driver, The State –v- Dela Tamu [1971] PNGLR 59 and Karo Gamoga –v- The State [1981] PNGLR 443 referred. In the case of Karo Gamoga (above), the Supreme Court on hearing the appeal held that: “_ _ _ in dangerous driving causing death the test to be applied is an objective one which apart from the question whether the driving constituted a danger must include a fault on the part of the driver causing the situation. Such fault to involve a failure or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case”.

8. From the facts as stated above I am satisfied that the defendant’s driving at the time was dangerous and that he was at fault in that he drove the PMV vehicle without a driving licence, he was driving under the influence of liquor and he was driving down a steep hill at high speed with a knowledge that his brakes were defenctive. He became aware of the faulty brakes earlier that day. He continued to drive the vehicle without having to have the defective brakes fixed first. I find that the defendant was at fault.

9. I consider defendant’s mitigating factors. He is 21 years old and married with two children. He is a villager. He has pleaded guilty to the charge thus saved awful lot of time and costs than if the case had gone into trial. He is a first offender and he has paid compensation to the deceased’s relatives. To an ordinary villager, the payment of K9, 000.00 cash plus four pigs worth about K3, 000.00 in my view is quite substantial. I take all these mitigating factors into account in considering the sentence.

10. The penalty for dangerous driving causing death is a term of imprisonment not exceeding five years, pursuant to Section 328 (5) of the Criminal Code Act. The Court does have powers to impose other forms of sentence apart from imprisonment as allowed by Section 19 (1) (b) (d) (e) of the Criminal Code Act. Under these provisions the Court could impose a fine up to K2, 000.00 or discharge the offender on entering into his own recognizance. And under Section 132 of the District Courts Act, the Court has the power to dismiss the charge though the offender is found guilty or discharged him conditionally on entering him into his own recognizance. Better still he could be placed on community work pursuant to Section 199A of the District Courts Act or even suspend the sentence or defer the sentence and place him on probation pursuant to Section 16 (2) of the Probation Act, Chapter 381.

11. However both the National Court and Supreme Court of Papua New Guinea have held in a number of cases that in dangerous driving cases the Court must impose custodial sentences. In the case of State –v- Sima Kone [1979] PNGLR 294 the accused pleaded guilty to the charge of dangerous driving causing death of his wife and son who were in the veicle with him. At the time he was under the influence of alcohol. The National Court placed him on two years own recognizance. The Supreme Court, in upholding the appeal by the Public Prosecutor against inadequate sentence, held that:

“In dangerous driving causing death only in most exceptional cases that imprisonment should not be imposed”.

The Supreme Court then substituted the sentence to eight months imprisonment. The Supreme Court did not state what the exceptional cases would be. In my humble view the exceptional case would be a situation where the driver is somewhat forced to drive the vehicle by another person who has knowledge that the driver is unlicensed or does not have a proper driving licence, that the driver was drunk or that the vehicle was mechanically defective. And secondly that deceased person has knowledge of these facts immediately before he boards the vehicle. In such a situation I would consider it to be an exceptional case and would consider none custodial sentences.

12. In the case of The State –v- Alphonse Naula Raphael [1979] PNGLR 47, the National Court in sentencing the accused to three years imprisonment for dangerous driving causing death, held that: “the sentence should be severe because of the prevalence of serious driving offences in Papua New Guinea.” There are more deaths resulting from dangerous driving than from the other causes each year in Papua New Guinea and so the higher Courts in Papua New Guinea called for custodial sentences which I do agree to.

13. In dangerous driving offences, there are certain factors that will make the offence to be one of a serious nature. These factors are laid down in the case of State –v- Alphonse Naula Raphael [1979] PNGLR, 47 which are that:

1. Driving without licence or on expired licence,

2. Driving uninsured and unregistered motor vehicle,

3. Driving under the influence of liquor or while drinking alcohol,

4. Driving a mechanicalyl defective vehicle, or

5. Carry passengers for reward on a motor vehicle not licences to carry passengers for reward.

14. I find that in our present case the factors 1, 3 and 4 above are present and so I consider this charge to be one of a very serious offence. And the sentence that is to be imposed must be a severe one because of its seriousness nature. The circumstances of our present case are similar to the case of State –v- Alphonse Naula Raphael (above). In that case the accused was sentenced to three years imprisonment. However I do consider that in our present case the defendant has paid substantial amount of compensation. Although precious life lost cannot be restored by the compensation payment given, I do take compensation as a mitigating factor in sentencing. In the case of State –v- John Peter Kot N2027 (CR.559 of 2000) (Unreported), the accused who stoned his wife to death paid K6, 500.00 cash plus 25 seater bus valued K67, 000.00 compensation to the deceased’s relatives. His Honour Gavara Nanu J considered the substantial amount of compensation paid and so he imposed a lesser term of imprisonment than he would have otherwise imposed. I will follow the same in this case.

15. The sentence I would impose here would be in the vicinity of two years. Having considered that the defendant has pleaded guilty to the charge and that he has paid substantial compensation to the deceased’s relatives I impose a custodial sentence of twelve months. And I convict and sentence the defendant to a term of twelve months imprisonment in hard labour. His bail money be refunded.

Verdict: Guilty, convicted and sentenced.

Prosecutor - Sergeant Yamuje of Goroka Police Station
Defendant - In Person