Milibur v Tepu [2010] PGDC 27; DC1059 (28 January 2010)

DC1059

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
IN THE GRADE FIVE CRIMINAL JURISDICTION]
GFCr 31-33 of 2010

BETWEEN

NICK MILIBUR
Informant

AND

ANTON TEPU
Defendant

Goroka: G Madu, PM

2010: May 6, 31 July 7, 29
: August 19 September 15
: October 6, 22 November 10
: December 1, 9, 10 January 28

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

CRIMINAL LAW: Sentence – matters for consideration – mitigation factors considered – aggravation factors - death and serious injured resulted – driver at fault – failed to consider the condition of road and his visibility - first offender – compensation as mitigating factor – criminal liability is not excused by compensation – custodial sentence where life is lost and serious injury sustained.

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 ] 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: Jasinafa
For the Defendant: In Person.

28 January 2010

JUDGEMENT ON SENTENCE

G Madu, PM: The accused pleaded guilty to two counts of dangerous driving causing grievous bodily harm and one count of dangerous driving causing death under Section 328 (2) and Section 328(5) of the Criminal Code respectively.

2. Upon reading the evidence in the hand-up brief, including the record of interviews for each counts, I informed you in Court that the evidence supported your guilty plea and convicted you of the three (3) charges laid against you. Your lawyer then made a submission on sentence whilst the police made a reply. I then reserved my decision on sentence pending consideration of the submissions.

3. The facts as they appear from the material in the deposition and put to you during your arraignment are these on Friday 2nd of April 2010 at around 2.30am you were a driver of a 25 Seater Toyota Coaster bus registration No. P.0967E hired by PNG Bible Church youths attending the Youth Camp at Mt Hagen.

4. It departed Lae heading to Mt Hagen travelling along the Markham Highway and had a brief stopover at Yaieng creek for about 30 minutes. After that they drove off and continued their journey to Mt Hagen. On the way the bus crew was instructing the driver to speed and slow at the corners, bends and straight parts of the roads. At one specific location before Raipingke the bus crew instructed the driver to speed up to 140 km/ph and then down to 12km/ph. At that time they were travelling at a very high speed. They passed Barola heading towards Komperi valley at high speed at about 100km/ph.

5. When negotiating corners and bends before the accident, the vehicle was imbalance and almost capsized several times. As accused drove towards Ababe the road was fairly flat and straight so he over took a Toyota Land Cruiser on high speed not knowing that there was a corner ahead of him. To his surprise at a short distance he saw the corner was just there and slowed down to turn by suddenly applying brakes, and the vehicle skidded and the front left tyre went off the road and the vehicle capsized and rolled down the stiff road five times until it finally rested near the river side.

6. Upon the first impact the passenger namely Malcolm Yanda was thrown out of the bus and the bus rolled over him injuring his spinal cord. The other passenger Ambros Babang Peter was thrown out of the bus and the bus finally rested on him injuring his chest internally whilst the other passengers sustained minor injuries. The female passenger Jenny Soti Pele sustained head injuries on impact and died on the way to the Goroka Base Hospital.

7. In his defence the accused made a confessional statement stating that when he was driving along Ababe, Okuk Highway, the fog was very thick and he could not see when he was approaching a sharp corner. He was surprise when the front left tyre went off the road so he applied hard brake to stop or slow down the vehicle but skidded off the road and rolled six times and landed beside the river with six tyres up in the air. Later he was informed that two passengers were seriously injured and one died upon impact.

MEDICAL REPORT

8. Separate reports were compiled by three different doctors involving the three passengers and these are:

Malcolm Yanda was a passenger in a PMV bus on 02/04/010 and consequently suffered from a spinal fracture.

This fracture has caused permanent transaction (cut) of the spinal cord at Thoracic level number 12 with catastrophic sequelae of the following;

1.) Permanent paraplegia (loss of use of both lower limbs.

2.) Permanent loss of bladder (urination) and bowel (defacation) function.

Ambrose Peter was a passenger in a Motor Vehicle (PMV) that ran off the road and was thrown out of the vehicle onto the road side by the impact of the accident.

He was rushed to Accident & Emergency Department where he was later Diagnosed with sever Pneumonia and thus was admitted to our Medical Ward(3).

Other histories, examinations and investigations were unremarkable.

He was treated with antibiotics and was discharged after full recovery.

Jenny Soti was a passenger in a PMV bus a young female of 15 years old died at Henganofi at the site of the Motor Vehicle Accident on 02-04-10.

She was also noted to have bled from mouth, nose and ear.

Resuscitation attempted but was unsuccessful and she died.

POST- MORTEM EXAMINATION
Head

➢ Old blood in left upper ear lobe
➢ Right lower eye lid laceration approximately 7cm(length)
➢ Bilateral conjunctival haematoma
➢ Old blood in left ear canal
➢ No skull fractures or depressions

Chest

➢ Right flank abrasions
➢ No signs of fractures or internal bleeding or bruises.
➢ Neck: NAD
➢ Back: NAD
➢ Abdomen: NAD
➢ Pelvic: NAD
➢ LIMBS: NAD

Cause of the death

The cause of death was due to bleeding from within the brain (cerebral haemorrhage) as a direct result of motor vehicle accident.

MECHANICAL REPORT

9. The mechanical report by the mechanic on the bus revealed that the body of the bus was badly smashed and damaged and was beyond repair and is a write – off. The conclusion that can be made is the accident was a serious one resulting in serious injuries and death and consistent with the evidence.

SENTENCE

10. On the question of punishment on the accused part in the offence committed, I had the benefit of hearing the lawyer for the defendant. In his submission, he asked court to consider certain matters. I have taken note of some of them and consider some as pertinent. I also noted what the Prosecutor had to say about the offence and the accused role in committing the offence..

11. The accused is 47 years old married with three children attending primary and high school. He is a third born from family of six (6) however the younger brother died recently. The accused is from Kiripa village, Tambul Nibilyia District, Western Highlands Province. He is educated to grade 6 level and has been employed as a PMV driver by many private individuals and has been driving for well over 27 years. The accused belongs to Catholic Church Faith.

12. I note that you did not intent to kill the deceased and injure the victims. The death of the decease and injuries sustained by the victims arose from an accident in which the vehicle ran off the road. The morning fog and the mist from the tar affected the accuse visibility and could not see clearly but was surprise to see the sharp bend but was late to apply brake and the momentum forced the vehicle forward and went off the road.

13. The accused was not under influence of liquor and co-operated well with the authorities including police during the record of interview and made early admissions.

14. The accused pleaded guilty to the three (3) counts of Dangerous Driving and is consistent with his free admissions he made to the police. This has the beneficial effect on the State in saving time, effort and expense in bringing witnesses to Court to prove the case against him.

15. The accused is first time offender who has not been in trouble with the law before and has no prior convictions.

16. The accused had express genuine remorse in court towards the two victims, the deceased relatives for the pain and suffering which he caused to them by his action.

17. The accused and his clans have paid hefty customary compensation packages to the two (2) victims and to the deceased's relatives. For deceased relatives K32,300.00 was paid whilst for the two victims K4,000.00 was paid to Malcom Yanda and K2,000.00 was paid to Ambros Babong Peter however Malcom rejected the payment made to him.

18. The accused has a family of four including his wife and three (3) sons and is the only salary earner for the family who depend on him especially for school fees.

19. The aggravating factors against the accused are:

(i) a death resulted from the accident.

(ii) victims sustained serious physical injuries.

(iii) driver was at fault in his driving.

20. On the issue of a death resulting from the accident, the defence submitted that although the offence is a serious crime which prescribes maximum penalty under s.328 (2) and (5) of the Criminal Code of 5 years however s.19 (1) (a) (b), S.19 (6) of the Code confers discretionary sentencing powers on the Court to impose sentence to a lesser term or other alternative form of punishment depending on the circumstances of each case.

The counsel submitted that maximum sentence of 5 years in any Dangerous Driving case is reserved for the worst category of the case as held by Justice Makail in James Warep v The State (2009) N3579 In this case the judge attempted to give some examples of some factors that would contribute to a worse case where he said; " A worse case of Dangerous Driving would be one that might have factors like, the driver of motor vehicle driving at excessive speed; over loaded with passengers; driving under the influence of alcohol; driving without licence or expired licence; driving a mechanically defective motor vehicle which was known to the driver"

21. The defence submitted that the circumstances does not fall into the worse category of Dangerous Driving because the accused was not under the influence of alcohol, the vehicle had no mechanical defects which were known to the driver, not travelling at excessive speed at the spot as the morning fogs made the situation difficult to clear sight to have driven faster and only one death was resulted from the incident.

22. The prosecution submitted that the circumstances of the instant case falls under the category of Dangerous Driving case because the accused drove at an excessive speed; he overtook another vehicle before him while there was a sharp corner in front; driving under another person's instruction and control and he was driving a PMV bus loaded with passengers.

23. The Prosecution made some statement extracted from Motor vehicle law in New South Wales 3rd Edition by P.A. Leslie & M.G. Briths. He submitted that the accident was due to excessive speeding. He cited the case of Rankin-v- Richards (1906) 8 W.L.R. 50 in which it was stated that "the rate of speed at which a vehicle is travelling is an essential factor to be taken into account in determining whether a driver has been negligent, but it is necessary to consider in conjunction with speed the amount of traffic present or which may be present on the road and the nature and condition of the road at the particular time".

24. He further made reference to the case of Harrison –v- Public Trustee ( [1922] SAStRp 59; 1922) S.A.S.R. 501 which stated "if the driver of a motor vehicle travels at an excessive speed the mere fact that immediately prior to an accident he applies brakes or swerves in an attempt to avoid collision does not overcome his original negligence. The Prosecution in conclusion submits that the accused is negligent for driving at an excessive speed resulting in bus overturning and injuring and killing the passengers".

25. The prosecution further submitted that the accused was negligent in his driving which was indicated by skid mark. In the case of Hunter –v- Wright (1938) 2 All E.R.621 it was held " It will be necessary to examine the fact of the skid in relation to the speed of the vehicle, and road condition at the time to determine whether there is evidence of negligence on the part of the driver, for while it may suggest that he was driving too fast or applied his brake suddenly in the circumstances, it may be due to inevitable accident or negligence on the part of a third party" and in Richley v Faull; Richley (Third Party) ( 1965) 1 W.L.R. 1454 it was held that an unexplained and violent skid may itself be evidence of negligence.

26. The prosecution submitted that the cause of the accident is due to excessive speeding and the court should find the defendant negligent and impose a harsher penalty to deter others from committing similar offences.

27. In what the prosecution has highlighted to the courts shows clearly that the accused was at fault and caused the accident. The facts showed that the accused drove at a high speed even though he was aware that the road was covered by fog and mist and that his visibility was not clear. Secondly he failed to exercise care by over taking the vehicle under the foggy condition and not seen what was ahead or coming in the opposite direction. The law is well established in the case of Doreen Rose –v- Gosney (1971) 55 CR. APP R.502 which is accepted and adopted in our jurisdiction in the following cases –

The State –v- Elias Subang ( No.2 ) [1976] PNGLR 179 and State -v- Delma Tami [1977] PNGLR 57 that there must be some fault on the defendant driver. In the instant case the accused was at fault when he overtook another vehicle when the road was covered with fog limiting his visibility.

28. In the case of The State –v- Aina Uwantuna N726 ( 14 June 1989) Woods J held " Failure does not necessarily mean driving at high speed. Failure simply means failing to do something the driver should have done to prevent the accident from occurring. The failure includes the driver not applying brakes, changing to low gears or swinging the vehicle away to avoid the collision and so forth".

I find that there was fault on the part of the driver. A reasonable and an experienced driver would not have done what the accused did by over taking the other vehicle in a foggy condition with limited visibility and therefore was at fault and must be found negligent for his action.

29. The other aggravating factor is that the accident resulted in one death and two serious physical injuries. The facts cannot be disputed because the medical reports concluded one victim died due to bleeding from within the brain (cerebral haemorrhage) as a direct result of Motor Vehicle Accident whilst the two victims were injured one had permanent loss of use of both lower limbs and loss of urination and defacation function.

30. The accident had cost a life of innocent and cannot be restored back and even the huge sums of money as compensation cannot pay sufficiently for the life lost because it is prestigious and is more valuable than the money or wealth can by refer The State –v- Betty Kondai CR 553 OF 2000 (Unreported) and The State –v- John Peter Kot N2027, CR559 (Unreported). Compensation payment in large amount does not reduce or excuse the offender from criminal responsibility and for this case the accuse is criminal lky responsible for his action.

31. Counsel on behalf of defendant submitted to the court to consider a head sentence of 3years and 2 years respectively for the three offences because the circumstances under which the accused committed the offence was such that that the death of the deceased and the injuries sustained by the victims arose purely from an accident in which the vehicle ran off the road. This affected the driver's visibility and could not see clearly the sharp bend because it was foggy.

32. The counsel further submitted for court to exercise discretionary powers under s. 19(1) (a), 19 (1) (d) and 19 (6) of the Criminal Code and should consider suspended terms.

33. In considering the mitigating and aggravating factors the appropriate penalty to be imposed in the instant case is a custodial sentence ranging between 2 years and 5 years. The following case are used as a guide: In the case of The State –v- Philip Iapru (2005) N2995 The offender got drunk while driving and ran off the road at Wara Lai near Wapenamanda in the Enga Province where four passengers sitting at the back trail of the truck were thrown off and fell onto the big rocks in the river. The sustained severe head injuries and died instantly. His Honour Kandakasi J, sentence the offender to a custodial sentence of 3 years imprisonment in hard labour after pleading guilty.

34. In the case of The State –v- Eric Papen (No.2) (2009) N3639 . In this case the prisoner without the consent of the owner of the motor vehicle drove it in a dangerous manner under the influence of an alcohol and it ran off the road and into a steel gate of a fuel service station near Pogera. As a result, the deceased, who was a passenger in the cabin sustained injuries and died and the other passenger also sustained very serious multiple bodily injuries and was hospitalised. The aggravating circumstances were that the use of the motor vehicle without the consent of the owner; got drunk while driving, a death was resulted and the victim sustained severe injuries. The mitigating factors were that, hefty customary compensation at the sum of K400.00 with 60 pigs was paid. Makail J Following a guilty plea imposed a head sentence of 3 years for the dangerous driving causing death of one person and 2 years for causing grievous bodily harm to another. The court ordered the prisoner to serve a concurrent sentence of 3 years because the offences were committed simultaneously and was resulted out of a single transaction and none of the sentence was suspended.

35. In the case of The State –v- Aina Uwantuna (1989) N726 the prisoner was driving a large FUSO Highway truck along the Highway near Aviamp out of Hagen when he stayed across to the wrong side of the road and collided head-on with a PMV, A 15 seater Isuzu bus. In the collision the truck pushed the bus backward for 22 metre where 12 passengers in the PMV were killed.

36. The three cases mentioned differ from the instant case because the aggravating factors are that the drivers were under influence of liquor and that the numbers of deaths were more than the deaths in the instant case. In view of the cases cited I sentence the defendant to two years in hard labour for charge of dangerous driving causing death. I sentence the defendant to one year each for two counts of dangerous driving causing grievous bodily harm to be served currently with one charge of dangerous driving causing death. Defendant is sentenced to serve two years with hard labour at Baisu Goal Mt. Hagen WHP.

_________________________________
Lawyer for the Prosecution: Police Prosecution
Lawyer for the Defendant: In Person