State v Soma [2006] PGNC 71; N4480 (23 August 2006)

N4480

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 496 0F 2006

THE STATE

V

DANIEL SOMA

Buka: Cannings J
2006: 17, 18, 23 August

SENTENCE

CRIMINAL LAW – Criminal Code, Division V.4, Offences Endangering Life or Health – Section 328, dangerous driving of a motor vehicle – sentence on plea of guilty – 4 years.

A man pleaded guilty to dangerous driving causing death. He was drunk and speeding and the vehicle he was driving had a steering problem of which he was aware. He ran off the road and killed a pedestrian.

Held:

(1) The starting point for the offence of dangerous driving causing death is 30 months imprisonment.

(2) Mitigating factors are: vehicle was registered and insured; no more than one person killed; gave himself up; co-operated with police; pleaded guilty; expressed remorse; first offender; he was assaulted.

(3) Aggravating factors are: he was drunk; speeding; aware of defect; no good reason for speeding; no other cause of collision; recklessness; no reconciliation; not a youthful offender.

(4) A sentence of four years was imposed; two years of which was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Karo Gamoga v The State [1981] PNGLR 443
Public Prosecutor v Sima Kone [1979] PNGLR 294
Public Prosecutor v Willy Moke Soki [1977] PNGLR 165
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Alphonse Raphael [1979] PNGLR 47
The State v Philip Iparu (2005) N2995
Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville
CR – Criminal
DCJ – Deputy Chief Justice
J – Justice
N – National Court judgments
No – number
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court Judgment
SCRA – Supreme Court Criminal Appeal
v – versus

PLEA

A man pleaded guilty to dangerous driving causing death and the following reasons for sentence were given.

Counsel

R Luman, for the State
P Kaluwin, for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to dangerous driving causing death under Sections 328(2) and (5) of the Criminal Code. He faced the following indictment:

Daniel Soma of Suhin, Buka, Bougainville, stands charged that he on the 16th day of October 2004 at Poposoko ... drove a motor vehicle on a road, Buka Highway, dangerously and thereby caused the death of Naomi Surei.

CONVICTION

2. The accused pleaded guilty to the following facts:

3. He was driving a Nissan Navara utility along the Buka Highway at 6 o’clock in the morning in the direction of Buka town. Approaching Poposoko he lost control of the steering and the vehicle ran off the right side of the road. The vehicle struck a young woman, Namoi Surei, and her mother, who were off the road. Naomi Surei was taken to hospital and died of injuries caused by the vehicle hitting her. Her mother survived. The accused was driving at high speed and dangerously and he was drunk. The vehicle had a problem with its steering, which he knew about prior to the incident.

4. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise for what I have done especially to the family of the deceased. Because of this incident, I will not drive a vehicle again. I did not intend anything like this to happen.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State’s extra resources that would have been committed to the case if a trial were necessary.

Depositions

• The offender was assaulted by onlookers soon after the incident.
  
• The offender made admissions to the police and co-operated in the investigation.
  

Allocutus

• He expressed remorse.
  

PERSONAL PARTICULARS

8. The offender is aged 39 and is married with seven children. His parents are deceased. He is a member of the United Church.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse. He submitted that a sentence of two years would be appropriate and part of it should be suspended.

SUBMISSIONS BY THE STATE

10. Mr Luman submitted that this was a serious case as a life has been lost. He could very well have been indicted for manslaughter, which has a maximum sentence of life imprisonment. A strong deterrent sentence is warranted, as drunken drivers are a menace. It is not appropriate to suspend the sentence. There is no evidence that the offender has reconciled with the deceased’s relatives.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what should the head sentence be?
• step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. The indictment was presented under Sections 328(2) and (5) (dangerous driving of a motor vehicle) of the Criminal Code, which state:

(2) A person who drives a motor vehicle on a 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.

13. The maximum penalty is therefore five years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence).

15. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 30 months as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

16. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be at or near the starting point.

17. The list is based on the sentencing considerations identified in the following cases:

• Public Prosecutor v Willy Moke Soki [1977] PNGLR 165, Supreme Court, Frost CJ, Prentice DCJ, Williams J;
• The State v Alphonse Raphael [1979] PNGLR 47, National Court, Pritchard J;
• Public Prosecutor v Sima Kone [1979] PNGLR 294, Supreme Court, Prentice CJ, Saldanha J, Greville–Smith J;
• Karo Gamoga v The State [1981] PNGLR 443, Supreme Court, Andrew J, Pratt J, Miles J;
• The State v Philip Iparu (2005) N2995, National Court, Kandakasi J.
  

18. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Was the offender not under the influence of alcohol or other drugs? No – he was drunk.
   
2. Was he not speeding? No – he was speeding.
   
3. Was there no problem with the vehicle that the offender was aware about? No – he was aware that the vehicle was mechanically defective – there was a problem with the steering.
   
4. Was the vehicle registered and insured? Yes.
   
5. Was there any good reason for the offender driving the vehicle the way he did, eg was there an emergency he was dealing with? No.
   
6. Was there some other contributing cause of the accident or collision? No – he was trying to avoid a dog on the road but that is a normal traffic hazard.
   
7. Was the accident or collision due to heedlessness (an error of judgment or momentary negligence) rather than recklessness (careless risk taking)? No – it was not a case of a simple error of judgment.
   
8. Was no more than one person killed? Yes.
   
9. Did the offender give himself up after the incident? Yes.
   
10. Did the offender cooperate with the police in their investigations? Yes.
    
11. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in reconciliation, organising counselling and support for the complainant or personally or publicly apologising for what he did? No – he is planning to reconcile but this has not happened yet.
    
12. Has the offender pleaded guilty? Yes.
    
13. Has the offender genuinely expressed remorse? Yes.
    
14. Is this his first offence? Yes.
    
15. Can the offender be regarded as a youthful offender? No.
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes – he was assaulted soon after the incident.
    

19. To recap, mitigating factors are:

• No 4 – vehicle was registered and insured;
• No 8 – no more than one person killed;
• No 9 – gave himself up;
• No 10 – co-operated with police;
• No 12 – pleaded guilty;
• No 13 – expressed remorse;
• No 14 – first offender;
• No 16 – he was assaulted.
  

20. Aggravating factors are:

• No 1 – he was drunk;
• No 2 – speeding;
• No 3 – aware of defect;
• No 5 – no good reason for speeding;
• No 6 – no other cause;
• No 7 – recklessness;
• No 11 – no reconciliation;
• No 15 – not a youthful offender.
  

21. There are eight mitigating factors and eight aggravating factors. However, I consider that the aggravating factors are very serious in this case; especially the facts that the offender was drunk and speeding and he knew about the vehicle’s steering defect. Although the way I have framed the sentencing considerations means that the numbers of mitigating and aggravating factors are equal, the aggravating factors outweigh the mitigating factors considerably. The head sentence will therefore be above the starting point. I impose a head sentence of four years imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

22. The offender has spent two months, one week and four days in custody in connexion with this offence and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in the table below:

TABLE 1: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	4 years
Pre-sentence period to be deducted	2 months, 1 week, 4 days
Resultant length of sentence to be served	3 years, 9 months, 2 weeks, 3 days

STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

23. This is not an appropriate case in which to suspend all the sentence. A life has been lost, unnecessarily. Drunk drivers are a menace to all road users and pedestrians. There is a tendency to too easily regard tragedies like this as ‘accidents’. This was not an accident. It was an unlawful killing of an innocent person by someone who behaved recklessly and irresponsibly.

24. It is useful to refer to what the Supreme Court said almost thirty years ago in Public Prosecutor v Willy Moke Soki [1977] PNGLR 165:

In many areas of this country and with some of its inhabitants, sentences of detention appear to us to be the only really effective personal and public deterrent available. Sentences of detention appear to be in tune with what public conscience and community feeling would demand in most cases of dangerous driving causing death.

25. I think that community sentiments are the same today. People expect that those who kill others by their reckless, dangerous driving of motor vehicles must be punished heavily. They should go to jail. That is the best deterrent.

26. However, in view of the mitigating factors that have been identified – in particular the guilty plea and the remorse shown by the offender – I will suspend two years of the sentence. The offender must serve the first two years of the sentence in custody, ie a further 21 months, two weeks and three days from today. The rest of the sentence will be suspended on the following conditions:

1. must within three months after release from custody pay at least K2,000.00 cash compensation to the family of the deceased and participate in a reconciliation ceremony in accordance with custom;
   
2. must reside at Suhin village and nowhere else except with the written approval of the National Court;
   
3. must not leave Bougainville without the written approval of the National Court;
   
4. must perform at least six hours unpaid community work each week at Suhin United Church under the supervision of Joseph Tom;
   
5. must attend Suhin United Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Church Pastor;
   
6. must report to the senior Correctional Service officer at Buka Police Station every government payweek Friday between 9.00 am and 3.00 pm and sign the register;
   
7. must not drive any motor vehicle;
   
8. must not consume alcohol or drugs;
   
9. must keep the peace and be of good behaviour;
   
10. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of release from custody;
    
11. the person responsible for filing the probation report will be the ARB senior welfare officer;
    
12. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

27. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the ARB senior welfare officer, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Supreme Court, Salika J, Mogish J, Cannings J.)

SENTENCE

28. Daniel Soma, having been convicted of the crime of dangerous driving causing death, is sentenced as follows:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	2 months, 1 week, 4 days
Resultant length of sentence to be served	3 years, 9 months, 2 weeks, 3 days
Amount of sentence suspended	2 years
Time to be served in custody	1 year, 9 months, 2 weeks, 3 days from date of sentence

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused