State v Kariango [2009] PGDC 31; DC886 (14 May 2009)

DC886

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

GFCr 14 of 2009

BETWEEN

THE STATE
Informant

AND

JACK KARIANGO
Defendant

Goroka: G Madu, PM
2009: February 3, 18
April 8, 16, 24,
May 14

CRIMINAL LAW: Dangerous driving causing death – plea – sentence – Criminal Code Act Section 328 (2) (5) Chapter No. 262.

CRIMINAL LAW: Sentence – matters for consideration – first offender – failed to observe traffic rules – failed to consider other road users – compensation as mitigating factor – criminal liability is not excused by compensation – custodial sentence where life is lost.

Cases cited

The State –v- Manga Kinjip [1976] PNGLR 86.
The State –v- Elias Subang (No.2) [1976] PNGLR 179.
The State –v- Jim Jobaga Ilivitaro [1977] PNGLR 259.
The State –v- Alphonse Naule Raphael [1970] PNGLR 47.
Public Prosecutor –v- Sima Kone [1979] PNGLR 294.
John Elipa Kalabus –v- The State [1988-89] PNGLR 193.
State –v- Betty Kondai CR 553 of 2000 (unreported )
State –v- John Peter Kot N2027 (CR 559 of 2000) (unreported)
Public Prosecutor –v- Willy Moki Soki [1977] PNGLR 165.

References:

Criminal code Act, Ss 328 (2) (5), 19 (1) (e) (f)
District Court Act, Ss132 (1), 199A
Probation Act, S.16

Counsel:

For the State: Senior Constable Pipi.
For the Defendant: In Person.

14 May 2009

JUDGEMENT ON SENTENCE

G Madu, PM: The accused pleaded guilty to driving a Hyundai truck along junction of Okuk Highway and Edward Street roundabout by taking a short cut by driving through one way and failed to observe the pedestrians walking and the traffic flowing in the opposite direction. In doing so the accused drove into a pedestrian hitting him who later died at the hospital.

2. The accused was charged under section 328 (2)(5) of the Criminal Code Act, Chapter 262. This provision states and I quote:

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

(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.

3. The facts to which a plea of guilty was entered are that on 17th October 2009 the accused was a driver of a blue Hyundai truck registration number CAQ. 225 and had travelled from Watabung along the Okuk Highway. The accused came to the Goroka market roundabout and instead of keeping to his left by going around intending to travel to West Goroka gave a short cut driving on the right side of the roundabout and bumped the pedestrian, a thirteen year old boy crossing from the right side of the roundabout. The boy was rushed to the hospital for medical attention but died from lose of blood as a result of heavy bleeding caused by the impact.

4. The facts were admitted by the accused that he realised that he had caused a fatal accident, resulting in the death of an innocent pedestrian. He was in an emergency situation and was rushing to the hospital to attend to his mother who was dying. The accused said that when he saw the right lane was clear and free then he drove on that lane of the Goroka Market roundabout but the victim ran into the vehicle and was tragically knocked down.

5. In his defence the accused gave his explanation stating due to the emergency situation of his mothers who was in critical condition at the hospital he took the right lane in haste and tragically knock down the child. He was sorry for causing a fatal accident and taking a life of an innocent boy.

6. He told the court that he paid compensation to the deceased relatives in the following:

- K 10,000.00 in cash

- 2 live pigs valued at K 1,000.00 each

- 1 live goat valued at K500.00

- Accused also assisted the relatives to claim basic protection compensation from the Motor Vehicle Insurance Trust and received payment of K 5,000.00

7. The accused said that it is true the compensation payment cannot replace life that he is responsible however he had to do this to reduce the pain and discomfort for loss of the loved one. He expressed by saying he was sorry for what he did resulted in the death of the deceased.

8. I considered the accused plea of guilty and I am satisfied that he entered his plea of guilty in plain, unambiguous and unmistakable terms and therefore it safe to accept his plea of guilty. In The State –V- Manga Kinjip [1976] PNGLR, 86 at 87 O’Leary AJ stated: " 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 refuse to accept it and should direct that a plea of not guilty be entered and that a case be allowed to go to trial in the usual way."

9. The accused in admitting his guilt responded that he took the right lane of the roundabout because of his mother who was in a critical condition at the hospital and was rushing to see her. At that material time the right lane was clear when he drove but the victim ran into the vehicle when he was crossing the lane. However it is clear and the facts shows that the accused failed to keep to his left and therefore was at fault. I perused the file and read the depositions tendered by the Prosecution. There is nothing that would convince me to change the plea and therefore accepted the plea of guilty.

10. In dangerous driving causing death there must be same fault on the part of the driver as held in The State –v- Elias Subang ( No.2 ) [1976] PNGLR 179 and The State –v-Jim Jobaga Ilivitaro [1977] PNGLR 249. In the present case the accused failed to observe the roundabout and to keep to his left by swiftly go around the traffic island and caused the accident by bumping the victim who later died at the hospital. The accused under no circumstances could have been excused to short cut by taking a left lane by going the opposite direction of the roundabout. By doing so he was exposed to the risk of causing accident to the oncoming traffic and pedestrians. Under the prevailing circumstances I find the accused at fault and guilty as charged.

11. The penalty for dangerous driving causing death carries a term of imprisonment not exceeding five years .Dangerous driving causing death is prevalent offence along the Highlands Highway and is a monthly occurrence. Where offences are prevalent and multiple deaths result from dangerous driving a custodial sentence must be imposed. This view was considered and applied in the cases The State –v- Alphonse Naule Raphael [1970] PNGLR 47 and The Public Prosecutor –v- Sima Kone [1997] PNGLR 294.

10. In mitigating the sentence the accused is a first time offender as he had no record of prior conviction. He is a married man with four children and is self employed. The accused expressed his remorse by saying he was deeply sorry for what he did that resulted in death to the young and innocent life and this experience will haunt him live for a long time. In John Elipa Kalabus –v- The State [1988] PNGLR 193 at 197,Kidu CJ as he then was stated "remorse and contrition are factors weighed in the matter of sentencing in favour of the accused persons, particularly if they are manufactured in a plea of guilty. Whether remorse or contrition is shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse and contrition after the committing of the offence, the more favourable it will be for the accused. I consider that where the accused express his remorse, he showed how deep he is sorry for what he did and regrets that he should have never done what he did, I believe the accused is genuine regretful". In the case before me the accused in my view has demonstrated that he is deeply sorry for what he has caused and was regretful. For this reason he paid substantial amount of money in compensation and even assisted to claim third party insurance which the relatives received.

12. On the issue of compensation I wish to draw my mind to following cases, The State –v-Betty Kondai, CR 553 of 2000 (Unreported) and The State –v-John Peter Kot N2027 CR 559 of 2000 (Unreported). Justice Injia in the former case and Justice Gavera Nanu in the latter case held that in any form of crime where life is lost no amount of compensation could restore life and custodial sentences were imposed despite huge amount of compensation were paid.

13. District Court can exercise power to impose non custodial sentences under Section 19(1) (e) (f) of the Criminal Code Act, and Section 132(1) of the District Courts Act to either upon conviction discharge the offender on entering into recognizance with or without sureties. This court can even place the offender on community work order under Section 199A of the District Court Act, or probation under Section 16 of the Probation Act. I have taken into consideration all the sentencing option that is available to this court to impose. I hold the strongest view that were lives are lost and in prevalence cases such as dangerous driving causing death a custodial sentence could not be avoided.

14. The Supreme Court ruled in number of dangerous driving causing death cases that sentences such as good behaviour bond were inadequate because of the prevalence of such offences. The Supreme Court on appeal have substituted the good behaviour bond for custodial sentence in the following cases, The Public Prosecutor –v- Sima Kone [1979] PNGLR 294, a custodial sentence of eighteen months was imposed for driving at high speed whilst under the influence of liquor. In the case of Public Prosecutor –v- Willy Moki Soki [1977] PNGLR 165, a custodial sentence of six months was imposed in substitution for twelve months good behaviour bond. The case laws discussed clearly calls for custodial sentences for the dangerous driving causing death offences.

15. In the present case the accused drove in a manner that he failed to observe the traffic rules and the fore most is to keep to his left by going around the roundabout or sometime known as traffic island. His action of driving directly on the right lane exposed danger to the pedestrians and oncoming vehicles using the right lane. Though the facts may not be similar to the cases I have discussed however I find that the circumstances under which the offence was committed and the seriousness of the offence. I find that this offence is less serious than the cases I have cited in this judgement. I consider a term of imprisonment appropriate and sentence the accused to nine months in hard labour. I order that his bail money be refunded.

___________________

For the State: Police Prosecution
For the Defendant: In Person