Tup v Sahoto [2018] PGDC 22; DC3067 (2 March 2018)

DC3067

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (GRADE FIVE) JURISDICTION]

GFCr 62 of 2017
BETWEEN

GENESIS TUP
Informant

AND

ERIC SAHOTO
Defendant

BUKA: B.TASIKUL

2018: 02^nd March
     

CRIMINAL: Section 328 (2) (5) Criminal Code Act. Dangerous Driving causing death.

Cases Cited:

References:

Counsel:

Lawyer for the Informant: First Constable Cecila Ali

Lawyer for the Defendant: Fidelis Lugabai of Public Solicitor Office

DECISION ON SENTENCE

1. BTASIKUL: PM. The prisoner pleaded guilty to the charge of dangerous driving causing the death of one namely: Peter Channel. The following facts which he pleaded guilty to as follows: On the 25^th August, 2017 the prisoner was a driver of a motor vehicle to wit: an unregistered white Toyota Hilux. The prisoner was carrying copra bags transporting them to Kokopau to sell. On board the vehicle was the deceased who was standing at the back trailer. As the prisoner was driving out of the bush track towards the main highway road the deceased called out to the defendant to stop as there was another vehicle travelling at high speed along the main highway road.
   
2. The defendant did not stop the vehicle and continued driving on to the middle of the main highway road, as the result obstructed the incoming vehicle. The incoming vehicle which is a Toyota Land cruiser when applying his brake to avoid a pedestrian riding a bicycle on the road swing to the left side of the road and as result hit the defendant’s vehicle. The deceased who was standing at the back of the vehicle jumped off the defendant’s vehicle and landed on the top of the incoming vehicle and was dragged twenty (20) meters out to the road side from the impact point. The deceased died instantly.
   
3. The defendant when ask if he understood the facts as read and accepted them as true and correct, in which he responded and accepted this facts. I therefore confirm his plea of guilty.
   
4. I have also asked both the prosecution and the defence to provide me a brief written submission on sentence, but as of the time in writing this judgment I have not received any of their submissions.
   
5. The penalty for dangerous driving causing death is a term of imprisonment not exceeding five(5) years pursuant to Section 328 (2)(5) of the Criminal Code Act. However, this Court has power to impose a fine or to discharge the offender on entering into his own recognizance, pursuant to Section 19 (1) (b) (d) (e) of the Criminal Code Act.
   
6. A Pre-Sentence and a Means Assessment Report was also submitted by the Probation Officer. The report in itself is very comprehensive which I consider to be fair and balance report. I noted from the PSR that the Prisoner’s family has paid K1800.00 cash,mimis or customary shell money and foods totalling up to K2550.00 to the deceased’s family as kol bel. I also noted from the report that the defendant’s family are blaming the incoming vehicle as responsible forcausing the accident resulting the dead of the deceased.
7. Nevertheless, after police investigation they found that the defendant was responsible that is why he was charged, so I rejected this part of this report.
   
8. The defendant and his family are willing to reconcile with the deceased family to restored peace and harmony between the two families. They are also willing to pay compensation.
   
9. From the outset, let me say this sentencing of person convicted of an offence is the discretion of a judicial officer, which are the Judges or Magistrates, as stipulated under the Criminal Justice (Sentencing) Act, 1986.However, the court should take into account mitigating and aggravating factors and the circumstances of each cases.
   
10. The mitigating factors for the defendant on this case is;
    
    1. He is a first time offender, with no previous conviction;
    2. He cooperated well with the police;
    3. He has expressed remorse;
    4. His family has paid K2550.00 as bel kol.
       
11. On the other hand the aggravating factors are;
    
    1. It is a serious offence;
    2. The offence is prevalent;
    3. An innocent life was lost;
    4. Defendant was driving unregistered and insured vehicle.
    5. He has no driving licence
       
12. Yes, taking into account all of the above factors I now ask myself what would be the appropriate sentence?
    
13. It is important to note that a young life was lost as a result of the defendant’s dangerous driving and no matter how much compensation are paid, that life can never be restored. However, compensation may be taken into account as a mitigation factor in sentencing. It has been highlighted in many cases that compensation cannot be taken as a form of punishment. Customary compensation will only assist the Court to decide whether the defendant should be given higher or lower imprisonment term.
    
14. On the other hand the defendant plea for leniency and a non-custodial sentence.
    
15. Having considered all the mitigating and the aggravating factors. I find that the aggravating factors out weight the mitigating factors. Therefore I think the appropriate sentence would be a two years imprisonment term. The defendant is hereby sentence to two years imprisonment, however, I would suspend one year and six months terms on condition that he be placed on Probation, with the following condition:
    
    1. That the prisoner serve only six(6) months custodial sentence,
    2. After completing the six (6) months term he be placed on one (1) year and six (6) months on Probation;
    3. That he performs a customary reconciliation with the deceased family and witnessed by the Probation Officer, where customary compensation may be paid. The amount of compensation will be agreed upon by the two parties,
    4. During the term of his probation the defendant will refrain from taking any form of drugs or alcohol,
    5. The prisoner is refrain from driving for the next two (2) years and if he wishes to drive after two (2) years he must obtain a driving licence.
    6. To keep peace and good behaviour bond.
    7. Bail is refunded.