Laua v Neinama [2008] PGDC 66; DC728 (5 May 2008)

DC728

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

GFCr 06 of 2008

BETWEEN

WILFRED LAUA
Informant

AND

ISMAEL NEINAMA
Defendant

Goroka: M Gauli, PM
2008: May 05

CRIMINAL – Particular offence – Dangerous driving causing grievous bodily harm – Hit the victim in a public place – Injury to the leg – Plea – Guilty – Sentence – Aggravating factors – No driving licence – Driving under influence of liquor.

Cases Cited:
1. The State –v- Sabarina Yakal [1988-89] PNGLR 129
2. Public Prosecutor –v Yapaun Kaso [1977] PNGLR 209
3. The State –v- Manga Kinjip [1976] PNGLR 86
4. The State –v- Alphonse Naula Raphael [1979] PNGLR 47

References:
Nil

Counsel:
For the Prosecution – Senior Sergeant Mark Yamuje
For the Defendant – In Person

05 May 2008

SENTENCE

M Gauli, PM: You have pleaded guilty to the charge of dangerous driving causing bodily harm pursuant to Section 328 (2) (5) of the Criminal Code Act of Papua New Guinea. These provisions state and I quote:

“328 Dangerous driving of a motor vehicle

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

(3) If the offender causes 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.”

2. The facts to which you pleaded guilty to are as follows. On the 10 of October 2007 you drove a motor vehicle towit a Mazda utility double cabin white in colour, registration number LAA 609 in a public place namely West Goroka Primary School premises. You drove in there to use your sister’s toilet. Your vehicle went into a small drain near the classroom. You were with one other person. You could not reverse out of the drain. It was raining lightly. One of the student namely Kaupa Keware came to assist you and your off-sider and pushed the vehicle out of the drain. As Kaupa was just walking away the vehicle rolled down and bumped into him on his left leg which broke the leg with the bone sticking out of his trousers. At the time of the accident you wee under the influence of alcohol and you did not have a driving license. You then rushed the victim to the hospital.

3. You have indicted that you have nothing to say. I have read through the contents of the statements of the witnesses and the Record of Interview to assist the Court whether it is safe to accept your plea of guilty. In the case of The State –v- Sabarina Yakal [1988-89] PNGLR 129, the National Court held that:

“Depositions may be used on sentence on a plea of guilty provided the facts are not challenged and are within the bounds of reasonable possibility.”

4. You have admitted the facts stated as above and you did not dispute them. The purpose of this Court using these depositions is not to try the case on the facts but to assist the Court the propriety of the Court in accepting your plea – Public Prosecutor –v- Yapaun Kaso [1977] PNGLR 209 followed and applied. I am satisfied that you made your plea of guilty in plain and with no uncertain terms. And I am satisfied that it is safe to accept your plea. It is well established law in Papua New Guinea that a Court should only accept a plea of guilty to a charge if it is made in plain, unambiguous and unmistakable term – see The State –v- Manga Kinjip [1976] PNGLR 86 at 87.

5. When the vehicle was pushed out of the drain you were still seated behind the wheels in the driver’s cabin. As the victim was walking away the vehicle moved forward and hit the victim breaking his left leg bone. You said the wheels did not grip so the vehicle rolled forward. This happened because you were under the influence of alcohol that you were not able to control the vehicle. I accept your plea and I find you guilty as charged.

6. Sentence

The offence that you have been charged with carries a term of imprisonment not exceeding five years. You are married with four children. You are unemployed. At the time of this incident you were driving under the influence of alcohol and you did not have a driving licence either. You were convicted of driving a vehicle without licence by Goroka District Court in November 2007 and fined K300.00. In sentencing for dangerous driving causing death or bodily harm, the following factors have to be taken into consideration – driving without licence or with expired licence; driving unregistered and uninsured vehicle; driving under influence of alcohol, driving a mechanically defective vehicle – see The State –v- Alphonse Naula Raphael [1979] PNGLR 47. In this case the Court held that if an injury is suffered by some person as a result the Court should consider custodial sentence. And if one or more of the above mention factors are present then the Court should consider custodial sentence. In the present case you drove the vehicle while you were under the influence of alcohol and you were without a driving licence. The fact that the tyres of your vehicle lost grip indicates that either the tyres were smooth or the brakes were defective, an indication that the vehicle was defective. I consider that I must apply the case of The State –v- Alphonse N. Raphael [1979] PNGLR 47 in sentencing.

7. For the reasons alluded above I consider a custodial sentence to be imposed as a deterrence to those who drive into school premises need to take extra caution. You are therefore convicted and sentenced to twelve (12) months imprisonment in hard labour. Your bail to be refunded.

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