State v Papen (No 2) [2009] PGNC 58; N3639 (21 May 2009)

N3639

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 347 OF 2009

THE STATE

V

ERIC PAPEN

(No 2)

Wabag: Makail, J

2009: 11th & 21st May

CRIMINAL LAW - Sentence - Multiple counts - Unlawful use of motor vehicle - Dangerous driving causing death - Dangerous driving causing grievous bodily harm - Guilty plea - First offender - Expressed remorse - Prisoner aged 27 - Married with one child - Payment of substantial customary compensation - Death of another person - Serious bodily injuries to another person - Substantial damage to motor vehicle - Deprivation of use of motor vehicle by owner - Maximum penalty of five years imprisonment for each offences - Discretion to reduce sentence - Concurrent sentence - No suspension of sentence - Deduction of one year, two months and two days in pre trial custody sufficient - Prisoner to serve one year, nine months and twenty eight days imprisonment in hard labour - Criminal Code - Sections 19, 383(1)(a) & 328(5).

Cases cited:

Alex Yembi -v- The State: SCRA 45 of 2003 (Unnumbered & Unreported Judgment of 28th November 2003)
The State -v- James Warep (2009) N3579
The State -v- Philip Iparu (2005) N2995
The Public Prosecutor -v- Sima Kone [1979] PNGLR 294
The State -v- Peter Kose Wena [1993] PNGLR 168
The State -v- James Gurave Guba (2000) N2020

Counsel:

Mr. S. Kesno, for the State
Mr. P.Kumo, for the Prisoner

SENTENCE

21 May, 2009

1. MAKAIL J: You pleaded guilty to three different offences before the Court on 11th May 2009. They are:

1. One count of unlawful use of a motor vehicle, a Toyota land cruiser Registration No HAH-108, the property of one Tom Naika contrary to section 383(1)(a) of the Criminal Code;

2. One count of dangerous driving causing death of one James Pera contrary to section 328(5) of the Criminal Code; and

3. One count of dangerous driving causing grievous bodily harm to one David Lopali contrary to section 328(5) of the Criminal Code

BRIEF ALLEGATIONS OF FACT

2. The State alleges that in the early hours of 23rd January 2008 between 4:30 am and 5:00 am, at Porgera Station of the Enga Province, without the consent of one Tom Naika, got into Mr. Naika’s motor vehicle, a Toyota land cruiser Registration No: HAH-108 and drove it. When you drove it, you drove it in a dangerous manner and as a result it ran off the road and into a steel gate of a fuel service station. As a result, James Pera (herein the "deceased") who was a passenger in the cabin with you sustained multiple rib fractures and a ruptured left lung and died on impact. The other passenger, one David Lopali (herein the "victim") also sustained very serious multiple bodily injuries and was hospitalized.

ALLOCUTUS

3. On your allocutus, you told the Court the following:

1. You are grateful to the Court to give you the opportunity to address the Court on sentence before your lawyer could speak on your behalf.

2. At the time of the motor vehicle accident, you, the deceased and the victim were drunk and the deceased, James Pera asked you to drive the said motor vehicle.

3. Had it not been for the deceased giving you the key of the motor vehicle and asking you to drive it, you would not have driven the said motor vehicle and the said accident would not have occurred.

4. You do not know the reason the deceased gave you the key of the motor vehicle and asked you to drive it. It was quite strange that although he is a licenced driver, he asked you to drive it. You suspected that he knew that the said motor vehicle had mechanical defects and did not want to drive it so he asked you to drive it so if there was an accident, he would not be responsible.

5. You drove the said motor vehicle down hill about 110 to 120 meters and when you applied the brakes to slow down, the steering wheels were wobbly and you lost control and it went and crashed into the steel gate of the fuel service station.

6. You are very sorry for causing the death of the deceased and the injuries sustained by the victim. You did not intend to cause the deceased’s death and the victim’s injuries. The death of the deceased and the injuries to the victim occurred as a result of an accident.

7. According to your customary practices and to maintain peace and harmony when one is responsible for the death or injury to another person, you and your line paid hefty compensation to the deceased and also the victim. The community leaders and police witnessed the customary compensation ceremonies. You ask the Court to take the payment of customary compensation into account in its deliberation.

8. You are a first offender and have never got into trouble before. This is your first time to commit these three different offences.

9. You also served 16 months or 1 year and 4 months in pre trial custody.

10. You are 26 years old and had a paid job prior to the commission of the offences.

11. You have a wife and a baby boy aged 2 to care for and ask the Court to take their welfare and interest into account when deliberating on an appropriate sentence.

12. Your in-laws and other family members depend on you for financial support and you also ask the Court to take them into account when deliberating on an appropriate sentence.

13. Finally, given all of the above, you ask that if a custodial sentence is imposed on you, part of it be suspended and you be placed on good behaviour bond or pay a fine.

THE LAW

4. The offences of dangerous driving causing death and grievous bodily harm are found in section 328(2) & (5) of the Criminal Code. It is one of those offences where it can be tried as an indictable offence before this Court or summarily before the District Court by virtue of section 420 and schedule 2 of the Criminal Code at the election of the Public Prosecutor. In your case, after you were charged by the police for these offences, the Public Prosecutor elected to proceed with the charges in the National Court.

5. Section 328(1), (2) & (5) states as follows:

"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) ............

(4) ............

(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". (Underlining is mine).

6. As for the offence of unlawful use of a motor vehicle, it is found under section 383(1) (a) of the Criminal Code and it reads as follows:

"383. Unlawfully using motor vehicles, etc.

(1) In this section, "unlawfully uses" includes the unlawful possession by any person of any motor vehicle or aircraft -

(a) without the consent of the owner or of the person in lawful possession of it; and

(b) with intent to deprive the owner or person in lawful possession of it of the use and possession of it temporarily or permanently.

(2) A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.

(3) This section applies without prejudice to any provision relating to the unlawful use of motor vehicles or aircraft of any other law, but an offender is not liable to be convicted under both this section and such a provision in respect of any one and the same unlawful use". (Underlining is mine).

PARTIES’ SUBMISSIONS

7. Your personal details, according to your lawyer are as follows:

* You are 27 years old and come from Teria village in Koroba of the Southern Highlands Province.

* You are married to one wife and have a child aged 2.

* You completed Grade 12 at Mongol High School in 1997 in the Southern Highlands Province.

* You were employed by Porgera Joint Venture as a Metallurgistical Technician in its Mill Department from 2001 to 2007.

* You are a member of the Christian Brethren Church (CBC).

* You went into custody on 19th March 2008 and have been there for the last 16 months or 1 year 2 months.

8. In mitigation, your lawyer submits that the Court take the following factors in your favour:

* You are a first offender. You have no prior convictions. These three offences are the first offences you have committed and now stand before the Court.

* You pleaded guilty to all three offences, thus saving the Court’s precious time and money to conduct a full trial to determine your guilt.

* You have expressed remorse openly in Court for committing these three offences, especially to the deceased and the victim.

* You freely and fully cooperated with the police during their investigations.

* You and your line paid a hefty customary compensation package to the victim and his line of 60 pigs and K400.00.

* You are not wholly responsible for the death of the deceased and the injuries sustained by the victim because you had all drank beer prior to the said accident and decided to go and buy more beer. The deceased and the victim voluntarily got into the said motor vehicle.

* You did not intend to kill the deceased and injure the victim. The death of the deceased and the injuries sustained by the victim arose purely from an accident. The accident occurred because the said motor vehicle was mechanically defective. This was evident when you drove it down hill and its wheels and steering wheel were wobbly and you lost control and it ran off the road and crashed into the steel gate of the fuel service station.

* Prior to you driving the said motor vehicle, the deceased drove it and parked it facing downhill. When you took over, you simply released the brakes and it moved down hill but you could not control it because its wheels and steering wheels were wobbly and you lost control and it crashed into the steel gate of the fuel service station.

* The distance was very short; between 110 to 120 metres. You could not control the speed because the said motor vehicle must have been mechanically faulty. Further, at that time you were under a state of intoxication. All these mean that there was no deliberate negligence on your part.

* Finally, there was no intention to use the said motor vehicle without the authority or consent of the owner because the owner, you, the deceased and the victim were drinking together and when beer finished, you all agreed to go and but more beer but could not locate the key to the said motor vehicle. When the owner left, you and the others found it and use it to start and drive the said motor vehicle. Since the owner had withdrawn before the key was found, it could mean that the consent to use his motor vehicle was also withdrawn. Nonetheless, there was no intention to lawfully use it.

9. Taking all these mitigating factors into account, especially the mechanically faulty state of the said motor vehicle, your lawyer submits that your case should be given special treatment. He refers to the Supreme Court case of Alex Yembi -v- The State: SCR No 45 of 2003 (Unnumbered & Unreported Judgment of 28th November 2003) (Hinchliffe, Jalina & Davani JJ), where the Appellant appealed a decision on sentence imposed by the National Court for two counts of dangerous driving causing death of two people and two counts of dangerous driving causing grievous bodily harm of another two people. The brief facts of the case were that, the Appellant had driven a motor vehicle at excessive speed at night time through a crowded area and lost control. The motor vehicle ran into the crowd and killed the two deceased and injured the two victims.

10. The National Court imposed three years imprisonment for each count of dangerous driving causing death and two years imprisonment for each count of dangerous driving causing grievous bodily harm to be served concurrently. The National Court suspended half of the sentence and ordered the prisoner to enter into a good behaviour bond for a period of twelve months. On appeal against the excessiveness of the sentence, the Supreme Court dismissed the appeal and upheld the sentences imposed by the National Court. The Supreme Court said that the sentence was quite lenient.

11. Bearing in mind the sentences imposed by the National Court and subsequently upheld by the Supreme Court in Alex Yembi’s case (supra), he submits that a three years sentence be imposed against you for the offence of dangerous driving causing death and one year sentence of dangerous driving causing grievous bodily harm. But he asks that part of whatever sentence the Court may impose be partly suspended.

12. As for the offence of unlawful use of motor vehicle, your counsel was unable to refer me to any decisions of the National Court or the Supreme Court on an appropriate sentence the Courts have imposed in the past to guide me to arrive at an appropriate sentence for you except to point out that the maximum penalty is five years imprisonment for this offence. He asks for one year imprisonment is appropriate in your case.

13. Finally, he submits that whatever the sentence the Court may impose on you for each of the offence, they are to be made concurrent so that you will serve time for all of them concurrently.

14. The State prosecutor did not make any submissions on sentence except to draw the Court’s attention to two matters. First is that according to the Antecedent report, you have no prior convictions and secondly, you have been in pretrial custody for 16 months and 17 days and that time should be deducted from whatever sentence the Court may impose on you.

REASONS FOR DECISION

15. I must say at the outset that you have been found guilty on your guilty plea of three different offences which were committed "simultaneously" on the early morning of 23rd January 2008. They all happened because first, you had driven a motor vehicle without the consent or authority of the owner, secondly a person has died and thirdly, another person has sustained very serious body injuries. Each of these offences carries a maximum penalty of five years imprisonment and must warn you that, that is the number of years you are looking at, at this point in time. But the Court has discretion by virtue of section 19 of the Criminal Code to impose a lesser penalty on you for each of these offences, thus you should be grateful for that.

16. With this warning in mind, your case is aggravated by a number of factors. First, from the facts contained in the Court depositions tendered to this Court by the State prosecutor, though, you said that you had no intention to first, drive the said motor vehicle without the consent or authority of the owner, secondly kill the deceased and thirdly, injure the victim, I find that you were the person driving the said motor vehicle at that time and should have controlled it. In this respect, I note that there is no evidence of a mechanical report placed before me to suggest that the said motor vehicle had mechanically defective brakes, wheels and steering wheels at the time when it crashed. An evidence of a mechanical report is important to corroborate your claim that the said motor vehicle was mechanically defective in its brakes, wheels and steering wheels.

17. On the other hand, there are admissions in your Record of Interview of 27th March 2008 that first, the brakes and gear system were good, secondly, you had tried to apply the brakes three times but mistakenly applied the accelerator. As a result, the said motor vehicle increased its speed and you lost control of it and it ran off the road. See answers to Questions 54 and 59 of the Record of Interview of 27th March 2008. Therefore, I must find that the motor vehicle was not mechanically defective or faulty at the time you drove it. That means that it was within your control and you simply failed to control it. As a result, it ran off the road and crashed into the steel gate of the fuel service station. I will hold this factor against you.

18. Secondly, the offence was committed in the early hours of the morning after a long night of drinking with friends and relatives including the deceased, James Pera and the victim. The beers you all had drunk finished and instead of you all calling it a night, you and your friends decided to go and look for more. I must also remind you in case you might have forgotten that, according to the Record of Interview, you told the police in your answer to Question 22 that the drinking party was at your house and started at 5 o’clock in the afternoon of 22nd January 2008 and went on until 2 o’clock in the morning of 23rd January 2008. To my mind, this is a very long drinking party and as if it was not enough, you and your friends decided to go and look for more beer to buy. I am sure the accident would not have happened if you and your friends had called it a night then. This factor goes against you.

19. Thirdly, you and your friends including the deceased and the victim were in a state of intoxication when you drove the said motor vehicle. Despite your lawyer’s submission that you and your friends including the deceased and victim were intoxicated and they voluntarily hopped on the said motor vehicle to go and look for more beer, with respect, I disagree. Being intoxicated only aggravates the gravity of the offences, especially for dangerous driving causing death and dangerous driving causing grievous bodily harm. Whilst it is true that your friends including the deceased and the victim voluntarily hopped on the said vehicle does not diminish the seriousness of your criminal culpability. If any, it only aggravates your cases because you were responsible for the lives of your passengers as a driver. You are the man in control of the motor vehicle, hence had a duty to drive it safely. I will hold this factor against you.

20. Fourthly, I will hold the prevalence of the offences as a factor operating against you. In dangerous driving causing death cases, I referred to a number of them in the case of The State -v- James Warep (2009) N3579 where I said at pp14 &15:

"I am unable to find any reported judgments of this Court on sentences for dangerous driving causing grievous bodily harm, but there are many reported judgments of this Court and the Supreme Court on sentences for dangerous driving causing death. One National Court case is The State -v- Philip Iparu (2005) N2995, where His Honour Kandakasi J, sentenced the offender to 3 years imprisonment in hard labour after the offender pleaded guilty to the charge of dangerous driving causing death. The offender was drunk 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. They sustained severe head injuries and died instantly.

A quick survey of the kind of sentences imposed to date reveals a sentence of 12 months in hard labour reduced to the time already spent in custody and awaiting appeal in the Karo Gamoga -v- The State [1981] PNGLR 443. That was a case in which the Supreme Court on appeal found that the Appellant misjudged the speed of the other vehicle (an ambulance) and there was no criminal negligence. Only one out of three people in the vehicle at that time died.

In The Public Prosecutor -v- Sima Kone [1979] PNGLR 294, the National Court deferred sentence and in the meantime ordered certain hours of work at a hospital for two years. On appeal against that decision, the Supreme Court quashed the decision on sentence and substituted it with a custodial sentence of 18 months. Mr. Kone was the driver of a vehicle when he was drunk and asked to be driven by others was forced to drive despite his reluctance. He collided into a tree resulting in the death of his child and wife who were passengers in the vehicle at the time.

In the Public Prosecutor -v- Willy Moke Soki [1977] PNGLR 294, the Supreme Court was of the view that a sentence above 6 months imprisonment was called for. There, 6 people died out of the Appellant’s dangerous driving. However, because the condition for recognizance in the sentence imposed by the National Court had expired at the time of the Court’s decision, it did nothing about the sentence. There, the Court did hold that, the number of deaths out of dangerous driving causing death is a factor in aggravation, which the sentencing court should take into account.

The cases of Karo Gamoga, Sima Kone and Willy Moke Soki (supra) were all decided in the late 1970s and early 1980s. Since then the offences of dangerous driving causing death and grievous bodily harm have not decreased. Instead, they have increased. In most of the cases of dangerous driving causing death and grievous bodily harm, driving at excessive speed is a very significant contributor. It means therefore that, a sentence much higher than those imposed in the late 1970s and early 1980s is warranted. Such a sentence is necessary if the desired purpose of serving personal and general deterrence, which the above Supreme Court decisions clearly speak of, for the safety of the society, is to be achieved.

Whilst these are some of the dangerous driving causing death cases, there are some features common in either case. Some examples are; the driver of the 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 etc..."

21. The cases of The State -v- Philip Iparu (2005) N2995 and The Public Prosecutor -v- Sima Kone [1979] PNGLR 294 that I had referred to in the case of James Warep (supra), were cases where deaths arose from the prisoners’ drink/driving acts. Sentences ranged from one year six months to three years. Three years was imposed in the case of Philip Iparu (supra) in 2005 and one of the reason for the National Court to impose that term of sentence was because of the prevalence of the offence and the other was because the sentences imposed in past dangerous driving causing death cases were outdated.

22. A serious aggravating factor present in your case is the fact that another human being’s life has been prematurely terminated by your actions. It has been said many times before that the sanctity of life is very precious and is irreplaceable. That means, you and I cannot bring that life back. It is gone forever and you will live with that guilt and shame for the rest of your life. I will hold this factor against you.

23. The next serious aggravating factor present in your case is that another human being has been seriously injured by your actions. The Medical Report of Kundiawa General Hospital dated 4th February 2008 where the victim had sought medical treatment shows that the victim sustained the following injuries as a result of the motor vehicle accident:

* Fractured right 3rd and 4th ribs with no signs of haemopneumotharax; and

* Blunt abdomen injury.

24. The victim was very fortunate to be alive because these injuries are, in my view very serious and could have led to his death too. I will also hold this factor against you.

25. The other aggravating factor present in your case is that, the said motor vehicle has been substantially damaged as a result of the impact on the steel gate of the fuel service station. The finding I make is based on the photographs of the motor vehicle that were tendered by the State prosecutor and upon my perusal of them I must say that the motor vehicle has been badly damaged. As there are no quotations for the costs of repairs of the said motor vehicle and without speculating the amount for the costs of repairs, I can only say that it will surely costs the owner a lot of money to repair it. I will hold this factor against you.

26. The next aggravating factor operating against you is the deprivation of use of motor vehicle by the owner. Whilst there is no evidence before me to show that the said motor vehicle has been repaired and is on the road again, I am pretty sure that after the accident, the owner was unable to use it for sometimes. He has been deprived of his right of enjoyment by what I consider as your foolish actions. I will hold this factor against you.

27. The other aggravating factor present in your case is that apart from the customary compensation of 60 pigs and K400.00 to the victim and his line, you and your line have not paid any customary compensation to the line of the deceased. You do not dispute this fact anymore. There is also evidence before me in the form of the Affidavits of the father of the deceased and the uncle of the deceased that the Paiam Village Court made an order on 07th March 2008 for you and your line to pay compensation to the line of the deceased by or before the end of 2008 but you and your line have not complied with that order. Therefore, I will hold this non payment of customary compensation against you in so far as my assessment of an appropriate sentence for the offence of dangerous driving causing death is concern.

28. Finally, you drove the said motor vehicle without the consent or authority of its owner. I hold this factor against you even though your lawyer submits that there was some kind of "de facto consent or approval" in that, the owner had initially agreed that you and your friends including the deceased and victim could use it to go and look for more beer to buy before he retired from the drinking party. You and your friend could have gone right away but the key was missing and when it was found, actually found in the ignition of the said motor vehicle, it was retrieved and off you and your friends went.

29. The reason is this, you made admissions in your Record of Interview dated 27th March 2008 that the owner did not authorize you to drive his motor vehicle. See your answers to Questions 28 to 40 and the Statement of the victim dated 06th February 2008.

Against these aggravating factors present in your case, I take into account all the mitigating factors that your lawyer has submitted on your behalf in my deliberation. I take into account that you are a first offender, you pleaded guilty to the commission of the three offences and you freely co- operated with the police in their investigations. Your Record of Interview dated 27th March 2008 is evidence of your co-operation with the police. I accept that you are truly sorry for committing these offences. It is a sign of your acceptance of criminal responsibility. I also take into account that you and your line paid a hefty customary compensation package to the victim and his line of 60 pigs and K400.00. The payment of customary compensation is an outward expression of your acceptance of criminal responsibility and also to bring peace and harmony to you and your line and the victim and their line.

30. I also take into account that you are a young man and also a young father and husband since you are 27 years old. You also have a young family and you’re in-laws and your extended family members as you say, also depend on you for financial support. Your family’s welfare and interest should be taken into account and I do so but at the same time, I must remind you that, you should have considered all these matters and the consequences of your actions before embarking on this journey on the morning of 23rd January 2008. I think what you and your friends did that morning was a foolish thing. Running around in a motor vehicle in the wee hours of the morning looking for more beer to buy is a classical example of people who have no sense of responsibility and conscience. Only fools or people with no brains will do what you and your friends did. And I should say that the fact that you and your friends were intoxicated cannot be used to reduce the sentence that the Court may impose upon you.

31. In relation to past cases of unlawful use of motor vehicles, in the case of The State -v- Peter Kose Wena [1993] PNGLR 168, Kapi DCJ (as he then was), sentenced the prisoner to three years imprisonment in hard labour for robbery and one year imprisonment in hard labour for unlawful use of motor vehicle, both sentences to be served concurrently. In another case, His Honour Kandakasi J, proposed some guidelines for sentencing of prisoners in cases of unlawful use of motor vehicle in The State -v- James Gurave Guba (2000) N2020 at pp 7 & 8 of the judgment that in the following way without in anyway exhausting the list:

"(a) The offence is committed under serious aggravating circumstances such as serious injuries to the owner of the vehicle, the vehicle itself or other properties and is being committed in the course of or in the furtherance of a serious crime such as armed robbery;

(b) The offence is committed under circumstances in which not all of the factors under (a) exist but only some of them exist. An example of that would be say the vehicle is being taken by force but without injuring the owner or its lawful driver, driven off and is recovered with minor damages to the vehicle or any other property;

(c) The offence is being committed in situations where say a single factor under (a) exist. An example of that would be a case in which say, the owner or legal driver leaves the vehicle unlocked and the offender gains entry and drives off and damages the vehicle;

(d) The offence does not fall under (a), (b) or (c) but is still an offence under s.383. An example of that would be a case in which say an owner/employer authorizes his employee to use a vehicle for a specified purpose within a specified period but he simply exceeds the authorized purpose and time for the employee's own purpose or interest without advancing his employers interest in any way.

In my view, an offence which falls under category (a) should attract sentences between 4 and 5 years. Then those falling under category (b) should attract sentences between 3 and 4 years while those under (c) and (d) should respectively attract sentence between 1 to 3 years and a number of months to 1 year. Of course, from what is suggested, the actual sentences in any one given case can be substantially or fractionally reduced depending on the particular facts of the case and mitigating factors such as a guilty plea, young first offender, no prior convictions and an expression of genuine remorse".

32. I think the proposed sentences by His Honour are reasonable and reflect the general trend that the Courts are taking to combat the escalating cases of unlawful use of motor vehicles and by respectfully adopting these proposed sentences in your case, I consider that your case would fall in category (c), which would attract a sentence between one to three years imprisonment. Therefore, I will assess an appropriate sentence for you within this range and of course taking into account the mitigating and aggravating factors present in your case in the exercise of discretion.

33. I am not bound to follow past National Court judgments in my assessment of your sentence but for purposes of consistency and also to keep abreast with the changes in the sentencing tariffs of the Court in dangerous driving causing death cases, dangerous driving causing grievous bodily harm cases and unlawful use of motor vehicle cases, I believe that using the recent National Court judgments sentencing tariffs will not only show to you and the public that the National Court is consistent with its judgments when it comes to the question of sentence in such cases but also to drive home the message to everyone that the National Court is firm and decisive in it sentencing policy. In that way, it serves as a reminder to everyone out there not to commit such offences.

CONCLUSION

34. Weighing the factors for and against you and considering the sentences imposed by the Courts in cases of dangerous driving causing death and dangerous driving causing grievous bodily harm, I consider a sentence of three years imprisonment in hard labour is appropriate for the offence of dangerous driving causing death of the deceased and a sentence of two years imprisonment in hard labour for the offence of dangerous driving causing grievous bodily harm to the victim is also appropriate in the circumstances. Further, I consider a sentence of one year imprisonment in hard labour appropriate for the offence of unlawful use of a motor vehicle, the property of Tom Naika.

35. I also need to consider whether each of the sentences should be served concurrently or cumulatively. I am satisfied that these three offences were committed "simultaneously" on the morning of 23rd January 2008. It is a single transaction therefore, by the Court’s power vested under section 20 of the Criminal Code I order that the above sentences shall be served concurrently. That means that, you will serve three years imprisonment and I will not suspend any part of the sentence as requested by your lawyer but I will deduct one year, two months and two days for time spent in pre trial custody since 19th March 2008. The deduction in my view is sufficient reduction of your sentence.

36. The sentenced will also reflect the gravity of the three offences you have committed and shall be a lesson to you that in future, you will abstain from this foolish way of thinking and behaving for the betterment of you and your family’s well being. Therefore, you will serve one year, nine months and twenty eight days imprisonment in hard labour.

A warrant of commitment in the above terms shall be issued shortly.

Sentence accordingly.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner