Police v Magum [2017] PGDC 59; DC4087 (18 May 2017)

DC 4087

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (GRADE 5 COURT) JURISDICTION]

GFC: 01 of 2017

BETWEEN

Police

Informant

AND

Gordon Magum

Defendant

KOKOPO: SLavutul

2016: 02^nd, 19^th August, 18^th, 22^nd, 24^th November, 13th December,
2017: 09^th, 16^th, 23rd February, 16^th March, 25^th April, 02^nd, 16th, 18th May

CRIMINAL PRACTICE AND PROCEEDURE – Dangerous Driving Causing Death- Section 328 (2) (5) CCA – Plea of Guilty- Submissions on Sentence – Criminal Responsibility falls between heedlessness and recklessness. Sentence – matters for consideration, Mitigating factors – first offender – Guilty plea- Cooperated with Police- failure to consider other road users –-compensation as mitigating factor – criminal liability is not excused by compensation – custodial sentence – additional orders – suspension of driving license.

Cases Cited

Ito Memairi v Nelson Guia & William Jiwaiba v Nelson Guia [1984] PNGLR 66

Fred Nup v Chris Hambuga [1984] PNGLR 206

R v Himson Mulas [1960- 70] PNGLR 1

Karo Gamoga- v- The State [1981] PNGLR 443

Goli Golu v The State [1979] PNGLR 653
The State –v- Sabarina Yakal [1988-89] PNGLR 129

The State –v- Elias Subang (2) [1976] PNGLR 179

The State –V- Jim Jobaga Ilivitaro [1977] PNGLR 249.

References

Criminal Code Act

Counsel

Inspector Boas Binauli for Prosecution.

Mr. Paul Yange for the Defendant.

Sentencing

18^th May 2017

SLavutul. PM. The defendant Gordon Magum was charged under Section 328 (2) (5) of the Criminal Code Act for Dangerous Driving Causing Death. It was alleged on the 09^th of April 2016 along ToBaining Drive; Kokopo Town the defendant did drive a motor vehicle to wit, a Mazda BT50, grey in colour bearing Registration Number ZPD. 444, dangerously and thereby caused grievious bodily harm to one Exson Rukua.

Facts

2. It was alleged that on Saturday 09^th day of April 2016, between 8.00 pm and 9.00 pm, the defendant now before the court, namely Gordon Magum was driving a police vehicle, to wit a Mazda BT50 dual cabin utility, grey in colour, bearing Registration Number ZPD. 444 along ToBaining Drive, Kinabot Stage 3, Kokopo, East New Britain Province.

3. It was alleged the defendant was travelling at high speed when he tried to execute a band situated next to Kokopo Primary School when he ran off his lane further to his right taking up the other land for the on-coming traffic.

4. The victim/complainant was approaching the bend when he sighted the defendant’s vehicle coming directly towards him on his right lane knowing he was going to be hit within seconds so he slammed on his brakes and his vehicle came to a sudden stop and lean towards the offside seat for his own safety when the defendant’s vehicle crashed into his vehicle head-on.

5. On Wednesday, 17^th of August 2016, the defendant was brought in for questioning at the Kokopo Police Station where he admitted committing the offence but disagreed with the charge.

Plea

4. The defendant did on23rd of February 2017 changed his earlier plea of not guilty of the 13^th of December 2016 to guilty. Defence did not any issues with the content of the Hand Up Brief containing witnesses statements and exhibits after it was tendered by prosecution.

Verdict

5. Charge was proven plea and defendant was found to be guilty as charged.

Address on Sentence

Defence

7. Defence on behalf of the defendant sought the assistance of Community Based Corrections Office to compile a Pre-Sentence Report and Means Assessment Report towards their submission pursuant to Sections 13 and 25 of the Probation Act (Amended 1990) and Section 4 of the Criminal Law (Compensation) Act, 1995 which states;

“The Chief Probation Officer or his delegate many provide the Court with a Pre- Sentence Report and a Means Assessment Report to assist the Court to make orders for the convict to either pay compensation to the victim or be placed on a probation order or both”.

8. Defence draws the attention of the Court to parts of the report provided by Community Based Correction, in that the defendant;

a. Has 7 dependents currently living with him as well as several others who are living in the Autonomous Region of Bougainville;

b. The defendant has a great career record with the police force as indicated by all his superiors in the Provincial Police Headquarters and he is a former Catholic Seminarian.

c. The defendant has no prior criminal convictions,

d. The defendant earns K1, 000.00 per fortnight and he could afford a compensation amount up to K2, 000.00.

9. Defence also reiterated the defendant in his Allocutus, right after pleading guilty to the offence; he stated that he was sorry for what he had done and that it was unintentional and he asked for the Court’s mercy.

10. Defence further alluded to the law under Section 328 (2) (5) of the Criminal Code Act;

328. DANGEROUS DRIVING OF A MOTOR VEHICLE.

(1) For the purposes of this section–

“driving a motor vehicle on a road or in a public place dangerously” includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including–

(a) the nature, condition, and use of the road or public place; and
(b) the amount of traffic that–

(i) is on the road or in the public place at the time; or

(ii) might reasonably be expected to be on the road or in the public place;

“public place”–

(a) includes every place of public resort open to or used by the public as of right and any field, ground, park, reserve, garden, wharf, pier, jetty, market, passage or any other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, whether or not it is at all times so open; but
(b) does not include a track that is used for the time being as a course for the racing or testing of motor vehicles, and from which other traffic is excluded at the time.

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

Penalty: Subject to the succeeding provisions of this section–

On summary conviction–a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.

On conviction on indictment–a fine not exceeding K1, 000.00 or imprisonment for a term not exceeding two years, or both.

(3) If the offender has been previously convicted, on indictment or summarily, of an offence against Subsection (2) he is liable on summary conviction to a fine not exceeding K400.00 or to imprisonment for a term not exceeding 12 months, or both.

(4) If the offender has been twice previously convicted, on indictment or summarily (or once on indictment and once summarily) of an offence against Subsection (2), the court shall, on conviction, impose, as the whole or part of the punishment, imprisonment.

(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.

10. Counsel continued the District Courts Act gives guidelines to the type of sentences this court may impose on the defendant in particular non- custodial sentences.

11. Counsel posed the question; “Can we utilize Section 132 of the District Courts Act and record “Release on Condition” along with conditions including Community Work Orders in terms of Section 199A of the District Courts Act?

12. Or can we send the defendant to a prison term of six months to five years wholly suspended along with conditions that;

a. To be on Good Behavior Bond for one (1) year and not breach any of the country’s laws for that period

b. Failing any of the above, he is to serve 6 months in custody

13. Counsel also hinted, as to the considerations under Section 132 of the District Courts Act, Pratt J in the Ito Memairi v Nelson Guia & William Jiwaiba v Nelson Guia [1984] PNGLR 66, in the headnotes stated that;

“In considering the application of section 138 (section132) of the District Courts Act of 1963 to a charge before the court, a magistrate is required to be satisfied;

1. That the charge is proved
2. That one of the three matters (character, nature of the offence, and extenuating circumstances) is applicable

100. That there are special features about the matter which cause him to believe that it would not be a proper or expedient to inflict punishment or more than nominal punishment, or that the offender should be released on probation”

14. Furthermore Counsel hinted, in the case Fred Nup v Chris Hambuga [1984] PNGLR 206, Justice Bredmeyer similarly held that;

(1) One or more of the factors mentioned in s. 138 (now s. 132) must be established before the court may impose the punishment provided therein;

(2). “Character refers to the positively good character, as shown by for example a voluntary work in the church or community; it means more than simply than absence of prior convictions

(3) “Antecedents” refers to prior convictions, if any, the existence of which would preclude application of the section

(4). The “trivial nature of the offence” is to be ascertained separately from the place which the criminal conduct might occupy in the seriousness of crimes of that type

(5) “The extenuating circumstances under which the offence was committed” are circumstances which lessen the seeming magnitude of guilt by partial excuse and my include;

(a) Provocation which is not sufficient to constitute the defence of provocation;

and/or

(b) Domestic or emotional stress

15. Counsel added, from a public policy perspective, we consider that it would be unreasonable to give a custodial sentence on the basis that the offender has several strong mitigating factors on his side and he is not the type of offender who needs rehabilitation from corrective institutions.

16. Counsel submits on behalf of the defendant;

a. It is our submission that this is one case where the circumstances surrounding the defendant, including all mitigating factors warrant a non- custodial sentence;

b. Furthermore, we submit that the court could give a probationary order for the defendant to be on good behavior bond of one year based on the Probation Office’s Pre- Sentence Report; and

c. Lastly, we submit that this Honorable Court could order the defendant to pay K2000.00 as compensation to the victim based on the Probation Office’s Means Assessment Report

Prosecution

17. Prosecution’s in it submission stated; they take into account the defendant’s following mitigating and aggravating factors;

Mitigating Factors

(a) Guilty plea on arraignment

(b) A single father of five school aged children

(c) His remorse in court

Aggravating Factors

(a). he is a repeated offender (see attached Certificate of Conviction dated February 2016, marked as 4.1) where he was cautioned and discharged

(b). intoxication

(c). high speed

(d). failure to keep a proper look out

18. Prosecution added the defendant is a repeated offender in that he was involved in a similar accident involving the same vehicle he drove at the time of the accident in the current case in 2015, where he was charged with driving without due care and attention. He was found guilty, convicted, cautioned and discharged by the Kokopo District Court on the 15^th of February 2016. (See attached Certificate of Conviction – marked as Exhibit 4.1)

19. Furthermore Prosecution referred the court to the witnesses’ statements labelled as Exhibits No.2.6 and 2.7 by Mr. and Mrs. Gigi did not disclose consumption of alcohol at their residence as opposed to the defendant’s reply to Question 28 in his Record of Interview in which he disclosed he had drank six SP Stubbies. Prosecution reiterated his admission then confirmed the witnesses’ statements of Emmanuel Saun, Belden Itak, Terence Henry, Alice Kaite, Alice Vual and John Rusiat marked with figures; 2.4, 2.5, 2.9, 2.10, 2.11, 2.12 and 2.13 hand up brief ; they all observed the defendant and his female friend were under the influence of alcohol at the time of the accident.

20. Prosecution added the extent of the impact clearly shows that the defendant was travelling at high speed and this is confirmed by witness statement no.2.8 by Robert Tudungan, who said he observed the manner in which the defendant drove at high speed from Bitavavar all the way to the scene of the accident resulting in the accident.

21. Prosecution added the defendant is a senior police commissioned officer and the vehicle involved is a police marked vehicle; and in his capacity as a law enforcer his actions are uncalled for as it sets a very bad precedent for his subordinates and paints a bad picture on the image of the Constabulary.

22. Prosecution then submits penalty provision for the offence of Dangerous driving causing death/ grievious bodily harm is a serious and prevalent offence. It added they take into account the defendant cooperated well with police during the course of investigation and pleaded to the court for leniency.

23. Prosecution reiterated the court must consider the fact that the defendant is a repeated offender and most importantly the serious nature of the offence in that an innocent human life was unnecessarily put at risk by the actions of the defendant. The victim sustained serious injuries to his cervical vertebral spine in that it resulted in a C6 Spinous process fracture. As a result the victim a Heavy Equipment Fitter and can no longer carry out the normal activities he used to do prior to the accident.

24. Prosecution further submits in R v Himson Mulas [1960- 70] PNGLR 1 states, evidence of prior consumption of liquor is admissible provided it really bears to a significant extent upon his or condition at the time of the alleged offence. Prosecution submits the Court may infer from the circumstances leading up to the head – on collision in that prior to the accident the defendant was under the influence of alcohol and that may be confirmed by the speed by which he was driving that resulted in him crossing over to the opposite lane. The point of impact was on the victim’s right lane.

25. Prosecution further submits the distinction between heedlessness and recklessness basically involves cases of incompetence and error of judgment on one hand and on the other it involves circumstances of aggravation which characterizes the more serious breaches of the section (such as high speed, intoxication, overtaking in the face of oncoming vehicle, cutting corners and other such examples of recklessness involves in deliberately taking unjustifiable risks) on the other hand as per the view in Karo Gamoga v The State [1981] PNGLR 443.

26. It submits that the offence of dangerous driving and grievious bodily harm has been prevalent in recent years in Papua New Guinea and this call for a deterrent sentence.

27. Prosecution added in the present case the complainant suffered permanent injuries to his neck and as a Fitter Machinist he can no longer perform his normal duty duties. It submits that the penalty to be imposed must be proportionate with the seriousness of the case. It submits in Goli Golu v The State [1979] PNGLR 653 it was held that;

“In sentencing, the basic principle to be observed is that the punishment to be awarded should be strictly proportionate to the gravity of the offence”

28. It also added for the Court to consider the latest Medical Examination Report by Dr. Felix Diaku as attached with their submission which self- explanatory dated the 06^th of February 2017.

29. Moreover, Prosecution submits that in addition to whatever penalty the Court may deem appropriate under Section 328 (2) (5) the Criminal Code Act, compensation pursuant to Section 2 (1) Criminal Law (Compensation) Act, 1991 may also be considered. Section 2 (1) of the Criminal Law (Compensation) Act 1991 states;

“Notwithstanding that payment of compensation is not specified as punishment for an offence, a court may, in addition to any other punishments imposed, order an offender to pay compensation in accordance with this Act”.

30. In conclusion Prosecution submits that taking into account the prescribed five years sentence under this section a deterrent sentence is one appropriate in this matter and in addition the court if deems fit consider an award for compensation for the injuries sustained by the victim.

Deliberations On Sentence
31. I have given careful consideration to both submissions and the facts laid before me. Having read and considered both submissions I am left with the question, “What is the appropriate sentence to be given to the defendant?” So from the outset there is authority for the use of depositions to extract the relevant facts for sentencing purposes as per the view in The State –v- Sabarina Yakal [1988-89] PNGLR 129

32. In the matter before me defendant Gordon Magum was driving up ToBaining Drive through Kokopo Primary School; drove onto the right lane of the oncoming vehicle and crashed on to it as confirmed by photographs 3.10 and 3.11. Whilst photographs 3.12 & 3.13 confirmed the damages to both vehicles. The Hand up Brief containing the statements of police witnesses confirmed the defendant was travelling at high speed and drove under the influence of alcohol. The photographs shows the defendant loss control of the vehicle he was driving and crashed onto the oncoming vehicle on the right lane. And as per the confirmation by Dr. Felix Diaku’s assessment and medical report dated 06^th of March 2017 on victim Exson Rukua; the victim sustained serious injuries to his cervical vertebral spine in that it resulted in a C6 Spinous process fracture and from Doctor’s opinion it is permanent. Thus the victim won’t be able to fully utilize his full potential as prior to the accident.

33. In mitigation the defendant is currently employed as a commissioned police officer with the RPNGC based in Kokopo. He has been with the police force for19 years. The defendant was married with 5 children however his wife passed away and he is now living with Inspector Julie Palakai as per the information in the defendant’s Pre-sentence Report. The defendant is well recommended by his superiors; Deputy Assistant Commissioner Paul Kamutai and Assistant Commissioner for Police Anton Billie. He is also well spoken of by his sister Ms. Anastasia Lega and Inspector Julie Palakai his current partner.

34. The offence which the defendant committed was aggravated by the fact he was travelling at high speed whilst he was under the influence of alcohol and demonstrated no concern for other road users at the time of the accident. Despite the non -disclosure by the defendant, his lawyer and the Community Based Correction Officer the court noted from Prosecution’s submission and confirmed from the attached Certificate of Conviction the defendant is a repeated offender. He was charged for negligent driving pursuant to section 17 (1) of the Motor Traffic Act; involving the same vehicle he drove on the night of the accident. He pleaded guilty to the charge and was cautioned and discharged by the court on the 15^th of February 2016.

35. I remind myself in sentencing each case must be decided on its own merit based on its own factual circumstances; however the court have a duty to ensure deterrence to others from committing a similar offence and taking into account and consideration of the prevalence of such a particular crime or offence.

36. The maximum penalty for Dangerous Driving Causing Death or Causing Grievious Bodily Harm pursuant to section 328 (5) of the Criminal Code is 5 years, however, this is subject to section 19 of the Criminal Code Act for the court not to impose the maximum penalty but reserve it for the worse type of case; as reaffirmed by the Supreme Court in the case of Goli Golu –v- The State [1979] PNGLR 653

37. And in dangerous driving causing death or (causing grievious bodily harm) cases there must be some fault on the part of the driver as in this case as per the view in The State –v- Elias Subang (2) [1976] PNGLR 179 and The State –V- Jim Jobaga Ilivitaro [1977] PNGLR 249.

38. As in the present case Defendant Gordon Magum was at fault. He knew he was intoxicated with alcohol yet he allowed himself to drive on the night of the accident. He also failed to take extra precaution and failed to consider other road users on the night of the accident; as he was travelling at high speed. Thus, demonstrating that the defendant was ready to bear the consequences of his own ignorance and recklessness.

39. I wish to reiterate the Certificate of Conviction issued by the Kokopo District Court on 22^nd of the April 2016 against the defendant is evident that the defendant is not a first offender. However the defendant totally failed to appreciate the benefit of being cautioned and discharge from his previous offence after entering a guilty plea. I wish to remind the defendant and others that a caution in the first instant by any Court is basically a reprimand or warning both to be careful and not to reoffend; and to act responsibly at all times. The defendant totally failed to observe such warnings.

40. I agree with Prosecution; the distinction between heedlessness and recklessness basically involves cases of incompetence and error of judgment on one hand and on the other it involves circumstances of aggravation which characterizes the more serious breaches of the section (such as high speed, intoxication, overtaking in the face of oncoming vehicle, cutting corners and other such examples of recklessness involves in deliberately taking unjustifiable risks) on the other hand as per the view in Karo Gamoga v The State [1981] PNGLR 443.

41. With the facts and aggravating factors laid before me the defendant’s case falls between heedlessness and recklessness and more so towards recklessness as evident the defendant was driving under the influence of alcohol and was travelling at high speed and cutting a corner. Recklessness could also be seen as irresponsibility, unruliness, thoughtless, wildness and carelessness.

42. I also consider that the offence of dangerous driving causing death and causing grievious bodily harm stands a prevalent offence since 2012 to 2017 as per the number of cases being registered and dealt with by this court; this calls for deterrence.

43. I acknowledge Defence submissions for a non- custodial sentence and plea for a probationary order for good behavior bond including compensation to the sum of K2, 000.00; including the mitigating factors as opposed to Prosecution’s plea for a custodial sentence.

44. However due to the prevalence of this type of offence I am of the view a custodial sentence would best suit the crime the defendant has committed. As it would stand as a deterrent against not only the defendant but other members of the Royal Papua New Guinea Constabulary and those of us who are law enforcers and the community at large. I am convinced the least the community expects of us is breaking the very laws which we are expected to uphold. And not only that the defendant is a very senior officer in the police force in which he is expected by the rank and file to set a higher standard for other young officers. Although I sympathize with the family, public and community interest must be given prominence.

45. I also refuse the submission for compensation. I will leave that to the proper forum for determination and assessment.

46. I therefore convict and sentence the defendant to 12 months in hard labour; however I will suspend 6 months of the defendant’s sentence in lieu of his earlier guilty plea. The defendant’s driving license is suspended for a period of 12 months, suspension to commence after the defendant’s discharge from custody pursuant to section 330 (2) (a) & (b) of the Criminal Code. And defendant’s bail is to be refunded.