Police v Waldiat [2017] PGDC 60; DC4089 (8 June 2017)

DC 4089

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (GRADE 5 COURT) JURISDICTION]

GFC: 25 of 2016

BETWEEN

Police

Informant

AND

Luke Waldiat

Defendant

KOKOPO: SLavutul

2015: 30^th September, 16^th, 30^th October, 11^th. 25^th November, 09^th December

2016: 21^st January, 11^th, 20^th, 25^th October, 13^th, 20^th December

2017: 17^th, 19^th January, 14^th, 15^th, 28^th February, 06^th, 23^rd March, 02^nd, 04^th,

30^th May

CRIMINAL PRACTICE AND PROCEEDURE – Dangerous Driving Causing Death- Section 328 (2) (5) CCA – Plea of Not Guilty- Submissions on Sentence – Criminal Responsibility falls between heedlessness and recklessness.

Cases Cited

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

References

Criminal Code Act

Counsel

Sgt Elizabeth Munap for Prosecution.

Defendant Appeared In Person.

Sentencing

08^th June 2017

SLavutul: The defendant Luke Waldiat was charged under Section 328 (2) (5) of the Criminal Code Act for Dangerous Driving Causing Death. It was alleged the defendant did on the 25th of August 2015 between Kerevat Market and Kerevat Police Station, East New Britain province; Papua New Guinea drove a motor vehicle to wit a Mitsubishi Canter Truck, white in colour registration number P.0208 K upon a public street, to wit Kerevat Road dangerously and thereby caused the death of one namely, Dorcas Savese, contravening Section 328 (5) (2) of the Criminal Code.

Facts

2. It was alleged the defendant did on the 25^th of August 2015 between 5.30 am and 6.00 am driving along the Kerevat Town Road between the market and police station. The deceased Dorcas Savese was walking along the left side of the road heading towards the police station. It was alleged she was hit by the defendant’s vehicle and died instantly.

Plea

4. The defendant did on the 17^th of January 2017 pleaded not guilty to the charge in that he did not hit nor ran over the deceased; but she did in fact bumped onto the right side of his vehicle.

5. The matter was then set for trial from the 14^th and 15^th of February 2017. Prosecution called four (4) witnesses namely, Police Investigator and Police Traffic Officer Kevin Bapa, Policeman Terry Talu of Kerevat Police Station, Mrs. Joyce Talu and Steven Wara. After the court ruled that there was prima facie evidence and that the defendant had a case to answer; the defendant was accorded the right to be head and call witnesses of his choice. The defendant and his only witness namely; Mr. Joe Tauling who was also the defendant’s crew at the time of the accident gave sworn evidence. The court also had the opportunity to visit the scene of the accident together with the defendant, his witness including police prosecutor and its witnesses.

6. Despite the defendant’s evidence and contention the court found from the evidence the defendant was travelling at high speed, he failed to take proper care, lookout and consideration of other road users as in this case the deceased. There is no evidence to demonstrate the defendant’s view was obstructed from seeing the deceased ahead; according to the defendant’s evidence he told the court as he was driving down he saw the deceased girl walking on the left side of the road ahead. The deceased was in clear view. It was a fine morning there was no evidence to show it was a rainy or cloudy morning. Furthermore, from the inspection of the scene of the accident; the court drew from the physical surrounding there were no trees or physical structures on the left side of the road which could have hindered the defendant’s view and contributed to the accident.

7. The court found the defendant could have avoided the accident had he decided to reduce speed and also having seen the deceased from a distant he would have sounded his horn to warn the deceased but he totally failed as in most cases of responsible and defensive driving. The defendant at the time of the accident was also in charge and in control of a dangerous item which was the truck he was driving. He totally failed to take precaution and reprimand.

8. Based on its findings the court then on the 04^th of May 2017 found the defendant guilty of dangerous driving causing death.

Address on Sentence

The defendant in addressing the court on sentence he submitted;

(a) I would like to say sorry to the relatives of late Dorcas Sevese, especially her mother and father, if they are present in the court room;
(b) I have paid to the relatives of the deceased K3, 000.00 and they accepted the money as form of compensation and we have come to good terms;
(c) I would also ask the court to take into consideration that my two daughters are studying in two different private institutions in Port Moresby and their education fees are too excessive. My first born is studying at International Training Institute and her fees are K7, 600 per year. My second born is studying at the Institute of Business Studies and school fees are K24, 000.00 per year. Their mother and I contribute to fund their educational fees. It will be very, very difficult for their mother to support or secure funds for continuing their education if I am sentenced or jailed.
(d) I am also a leader at our Ward, mainly involving myself with our youths. I organize sports and spiritual activities to keep the Youths out of trouble. The law and order issues have decreased dramatically since the introduction of the above activities
(e) Lastly, I want to mention to this court that this is my first offence and to be prosecuted in the court of law and I now kindly asked the court for leniency.

7. In its reply prosecution poses the question what is the appropriate penalty; which the court could impose on the defendant? Prosecution reiterated the defendant Luke Waldiat is from Takekel village and was employed as a driver when he committed the offence. He pleaded not guilty on arraignment where a full trial was conducted in which the court found him guilty based on the evidence before the court.

8. Prosecution further stated the maximum penalty for Dangerous Driving Causing Death pursuant to Section 328 (2)(5) of the Criminal Code is an imprisonment term not exceeding 5 years. Thus the penalty provision indicates the offence of Dangerous Driving Causing Death is serious and a prevalent offence.

9. Moreover prosecution submitted the aggravating circumstances are;

1. High Speed

2. Failure to keep a proper look out for other road users

3. Failure to keep the vehicle under proper control

4. Failure to act responsibly when an accident was imminent

10. It also added in cross examination the following questions were put to the defendant and I quote;

“Q1. How many kilometres were you travelling at that time?

1. 70 – 80 kilometres per hour”

“Q2. Is it correct that you were travelling at that speed to Liaga to pick up some market ladies?”

“A. Yes”

“Q3. How far away were you travelling when you sighted the deceased in the middle of the road?”

“A. 50 metres”

“Q4. Did you use the horn to signal the deceased that you were travelling at her back?”

“A. No”

11. Prosecution submitted the questions asked and answers given by the defendant confirms the aggravating factors that were corroborated by reliable state witnesses to confirm the speeding, failure to keep proper lookout, failure to keep the vehicle under proper control and failure to act reasonably when an accident is imminent as the elements involved in the present case.

12. It added according to the evidence before the court, the portion of the road was free of obstructions at the material time that could have caused distraction to the defendant. It further argued it was pure negligent on the part of the defendant that caused the accident; he was speeding and unable to keep his vehicle under proper control when he first sighted the deceased at about 50 metres ahead of him; walking on the left hand side of the road.

13. Furthermore it added the defendant admitted that he never used his horn as a warning device to warn the deceased that he was driving at her back. It submitted this was an act of recklessness and heedlessness as it involves circumstances of aggravation which is characterizes the more serious breaches of this section (such as high speed, intoxication, overtaking in the face of an 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 the case of; Karo Gamoga v The State [1981] PNGLR 443. It reiterated the defendant saw the deceased prior to the impact and being a driver in charge of a dangerous thing he failed to comprehend the danger as stipulated under section 287 of the Criminal Code which state;

Section 287 - DUTY OF PERSONS IN CHARGE OF DANGEROUS THINGS.

(1) It is the duty of every person who has in his charge or under his control any thing, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.

14. It further submitted they take into account the mitigating factors in favor of the defendant, however he has committed an offence and he should be punished.

15. Finally prosecution reiterated, having outlined the above it submitted that a deterrent penalty would be one appropriate not only to punish the defendant but to bring the message across to other drivers that the court won’t be lenient on them and that a custodial sentence would be appropriate.

Deliberations on sentence

16. The content of the above submissions draws the court to “what is the appropriate sentence to be given to the Defendant?” Firstly the maximum penalty for Dangerous Driving Causing Death pursuant to section 328 (5) 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.

17. The defendant is a first offender, married with children who are at school and a community leader as he stated in his submission. The defendant has also paid K3, 000.00 to the relatives and family of the deceased. Thus is an early sign of remorse.

18. I also consider the aggravating factors in that the defendant was travelling at high speed and despite having sighted the deceased from a distance of 50 metres he failed to reduce speed and use his horn which was working at the time of the accident to at least give some warning to the deceased. Thus it was the defendant’s own carelessness which resulted in the accident and death of Dorcas Sevese.

19. I agree with prosecution Dangerous Driving Causing Death is serious offence and is also now a prevalent offence as evident by the number of cases that has been registered before this court. Thus the court has a duty to ensure safety of the general public and deterrence is given paramount consideration in sentencing; in order to send a message and warning to the public and especially those who are drivers to understand that they owe a duty of care to the other road users whilst they are out on public road.

20. I consider custodial sentence would suit the offence the defendant is charged with.

Court Orders;

1. The defendant is convicted and sentence to 12 months in Hard Labor
2. However 6 months of the entire sentence be suspended without conditions and the defendant to serve the remainder of six months in custody.
3. Defendant’s driving license is suspended for a period of 12 months, suspension to commence from the date of release from custody
4. Defendant’s bail monies to be refunded forthwith.

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