Kalinau v Kerai [2007] PGDC 135; DC718 (3 January 2007)

DC718

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

GFCr 45 of 2007

BETWEEN

TONY KALINAU
Informant

AND

PETER KERAI
Defendant

Goroka: M Gauli, PM
2007: January 03

CRIMINAL - Particular offence – Dangerous driving causing death – Plea – Guilty – First offender – Mitigating factor – Paid compensation – Sentence – Suspended sentence.

Cases Cited:
1. The State –v- Manga Kinjip [1976] PNGLR 86
2. The State –v- Elias Subang (No. 2) [1976] PNGLR 179
3. Public Prosecutor –v- Sima Kone [1979] PNGLR 294
4. The State –v- Alphonse Naula Raphael [1979] PNGLR 47
5. Public Prosecutor –v- Willy Moki Soki [1977] PNGLR 165
6. The State –v- Paulus Non Pable [1999] PNGLR 468

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person

03 January 2008

SENTENCE

M Gauli, PM: You have pleased guilty to a charge of dangerous driving causing death pursuant to Section 328 (2) (5) of the Criminal Code Act.

2. The facts to which you have pleaded guilty are these. On the 17 of August 2007 you were driving a motor vehicle towit a Toyota Coaster PMV bus blue and white in colour, registration number P.0753A upon a public road namely the Huwavenagu road along Okuk Highway at Daulo Pass dangerously. You had passengers on board your vehicle. You were driving down the slope at high speed and when you approached a sharp corner, you applied brakes but the brakes failed and you ran off the cliff which resulted in the death of three of your passengers and a number of other passengers sustained injuries. The three who died are Patricia Seine Kiri, Bii Lily Jeffery and Benjamin James.

3. You are the owner of the said vehicle involved in the accident. The vehicle could not be retrieved from the cliff and it is still there. The vehicle is wright off. There is no mechanical report of the vehicle to ascertain the conditions of both the brakes and the steering wheel as it is impossible to pull the vehicle out of the cliff. The statement of facts and the statements contained in the file showed that you were driving down hill at very high speed immediately before the accident. In your statement of defence you said that as you approached the sharp corner, you changed to low gear and applied the foot brakes but the brakes failed. You also pulled the hand brake but that also failed to engage and it resulted in your running off the road and down the cliff.

4. You are very familiar to this part of the highway because you travel up and down this highway almost every day. You also had passengers on board your vehicle at the time. And you were descending the slope at very high speed. You only changed to low gear and applied the brakes when you were very close to the corner. And it was too late for you to do anything when you realized your brakes failed to engage. This resulted in the death of three of your passengers and several others sustaining injuries I am satifised that your driving was the substantial cause of the death of the three people but not that it was the only substantial cause – The State –v- Elias Subang (No. 2) [1976] PNGLR 179 applied.

5. I considered that it is safe to accept your plea of guilty. It is a well established law in our jurisdiction in the case of The State –v- Manga Kinjip [1976] PNGLR 86 at page 86 where Justice O’Leary AJ said: “that a judge should only accept a plea of guilty to a charge if it is made in plain, unambiguous and unmistakable term.” I am satisfied that you made your guilty plea in no uncertain terms. I therefore find you guilty as charged.

6. Sentencing

The penalty of the charge of dangerous driving causing death under Section 328 (2) (5) of the Criminal Code Act carries a term of imprisonment not exceeding five years. The prosecutor submitted that the Court should consider Section 19 (1) of the Criminal Code Act as alternative sentence to imprisonment. This provision allows the Court to impose either fine or own recognizance instead of imprisonment where the offence carries a term of imprisonment. I am also empowered by Section 132 of the District Courts Act to either discharge the offender without conviction or to allow the offender on his own recognizance to keep the peace and be of good behaviour with or without sureties instead of imprisonment. I have considered these provisions but I do also consider the seriousness of the offence as well.

7. In the case of The Public Prosecutor –v- Sima Kone [1976] PNGLR 294, the National Court on a plea of guilty placed the accused on his own recognizance for two years for dangerous driving causing the death of his wife and his son while driving under influence of alcohol. On appeal by the Public Prosecutor for inadequacy of sentence, the Supreme Court held that:

(1) Only in most exceptional cases may the necessity for public deterrence against the offence be overridden by the circumstances of the case to the extent that the offender is not sentenced to a term of imprisonment.

(2) Where multiple deaths occur from dangerous driving causing death that may be considered a factor in sentencing.

(3) In the circumstances the recognizance was quite in adequate and a sentence of imprisonment with hard labour for eight months should be substituted.

8. This case called for custodial sentence where multiple deaths result from dangerous driving. Some of the factors to be considered in sentencing for dangerous driving cases are set out in the case of The State –v- Alphonse Naula Raphael [1979] PNGLR 47. These factors includes driving without license or driving on expired license, driving unregistered and uninsured vehicle, driving under the influence of liquor, or driving a mechanically defective vehicle. If any of these factors are present then the sentence should be severe. In the present case none of these factors are present. The defendant’s driving licence was lost during the time of the accident. And so I have no information on whether he had a current and valid driving licence at the time of the accident. There is no evidence that the vehicle had its registration and insurance current or expired at the time of the accident. In the absence of any of these factors the need for a severity of sentence may not be of any assistance.

9. In the case of Public Prosecutor –v- Willy Moki Soki [1977] PNGLR 165, the accused was placed on 12 months good behaviour by the National Court for dangerous driving causing death to six people. On appeal, the Supreme Court substituted it to six months imprisonment. In the present case three people died and several others sustained serious injuries. I consider that a sentence of imprisonment less than 12 months for dangerous driving causing multiple deaths is quite inadequate.

10. I do also consider your mitigating factors. You are a single man, unemployed and you are the eldest child in the family. Your father is disabled and you are the only one taking care of the family. You are a first time offender and you have pleaded guilty to the charge. Your plea of guilty has saved both time and costs for this Court, Police and even yourself. You have also paid compensations to those who were injured and also those who have died in varying amounts.

11. Although payment of compensation can never restore precious lives been lost, payment of compensation is a mitigating factor that could assist the Court in sentencing The State –v- Paulus Non Pable [1999] PNGLR 468. You have been very co-operative both to the police during their investigations and even to this Court whilst residing in Chimbu Province, you have been faithfully attending Court in Goroka in the Easter Highlands since your release on bail from August 2007. I take all these mitigating factors to your advantage. And so I consider a suspended sentence would be quite appropriate in taking all these circumstances.

12. Accordingly I convict your and I sentence you to 12 months imprisonment in hard labour. However I suspend the whole of your sentence and you are placed on your own recognizance to keep the peace and be of good behaviour for a period of two years with sureties of K300.00. Your bail is converted to your sureties. I further make an order that you are disqualified from driving and or from obtaining a driving license for a period of 12 months from the date of this order.

For the Prosecution – Senior Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person