State v Hoivo [2012] PGNC 334; N5175 (10 August 2012)

N5175

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 396 OF 2007

BETWEEN

THE STATE

V

BEVAN HOIVO

Popondetta: Toliken AJ
2012: 07th, 10th August

CRIMINAL LAW – Sentence – Dangerous driving causing death – Plea of guilty – Single death – Driver - Unlicensed, expired Learner's Permit, inexperienced, carrying passengers – Moral responsibility owed to other road users and others who may reasonably be affected by his driving –- Degree of abandonment of moral responsibility – Moderate moral culpability - Other Aggravating factors considered - Not a worse case.

CRIMINAL LAW - Sentence – Purpose of Sentence - Public deterrence – Need for custodial Sentence - Reform and rehabilitation not relevant as offenders are not criminals who need to be rehabilitated –Head sentence of 2 years – Extenuating Circumstances - Prisoner spent 4 years, 7 months and 2 weeks in pre-trial custody – Sentenced to rising of the Court in interest of justice – Criminal Code Act Ch. 262, s 328 (2)(5).

Cases Cited

The following cases are cited in the judgment:

The Public Prosecutor v. Willy Moke Soki [1977] PNGLR 165
The State v. Alphonse Naulo Raphael [1979] PNGLR 47 (12 March 1978)
Public Prosecutor v. Sima Kone [1979] PNGLR 294 (2 August 1979
Acting Prosecutor v. Uname Aumane [1980] PNGLR 510
Karo Gamoga v. The State [1981] PNGLR 443
Goli Golu v. The State [1988] PNGLR 193
Alex Yembi v. The State; SCA No. 45 of 2003
The State v. Philip Iparu (2005) N2995
The State v. Eric Papen (No.2) (2009) N3639

Counsel:

M. Ruarri, for the State
T. Sua, for the Defendant

SENTENCE

10th August, 2012

1. TOLIKEN AJ: Bevan Hoivo, on 07th August 2012 you pleaded guilty before me to an indictment charging you that:
   

"... 05th day of August 2006, at PUASHEMBO, Kokoda Highway in Papua new Guinea [you] drove a [motor] vehicle on a road dangerously and thereby caused the death of Jean Haxion."

This is an offence under Section 328(2) (5) of the Criminal Code Act Ch. 262.

FACTS

2. The brief facts upon which I am about to sentence you are as follows. On 05th August 2006, at about 9.00 a.m. you were driving a single cabin Toyota Hilux, registration No. LAQ: 167 up the Kokoda Highway. You were driving back to Suin Village from Popondetta Town. You were travelling at high speed. At Puashembo Village you lost control of the motor vehicle. As the vehicle veered uncontrollably to the other lane you jumped off the vehicle in fear of your own life. The vehicle ran off the road, down into and over a small a ditch and knocked the deceased over who was standing there. The vehicle overturned with deceased still caught under it.
   
3. At that time you had several passengers on board. You only possessed a Learner's Permit which had expired a month earlier on 06th July 2006. You were therefore not only unlicenced but also inexperienced. The road was being graded and there were a lot of loose gravel on the road surface.
   

ALLOCTUS

4. In your allocutus you apologised to the Court, the lawyers, those in attendance and the deceased's relatives. You said that the steering wheel of the vehicle jammed so you lost control of the vehicle. You also said that you were badly beaten up and had to be admitted to hospital after the incident. After you were released from hospital you voluntarily surrendered to the police. You finally said that you had been in custody awaiting trial for a period of 4 years 7 months and 2 weeks.
   

SUBMISSIONS BY DEFENCE COUNSEL

5. Your counsel began his submission by giving a brief background of what transpired soon after your arrest for this charge and the ensuing period up to now. Whilst this material should have strictly been put to the Court by way of an affidavit, the State did not object, and I am grateful for this information as the committal file did show that certain events transpired within that period.
   
6. So by way of background information Counsel submitted that after your arrest on 07th August 2006, you were granted K200 bail by the District Court.
   
7. On 09th September 2006 your family paid substantial compensation to the deceased's relatives totalling some K10,000.00. This comprised of K2000.00 in cash, two pigs valued at K1000 each and four trucks load of store goods and garden food.
   
8. While on bail you were suspected of rape and arrested on 15th October 2006. Your bail was revoked and surety was forfeited to the State. You were therefore remanded in custody for three years until the National Court acquitted you for the charge of rape on 20th September 2009. However, you continued to be in custody awaiting you trial for this current charge.
   
9. On 06th October 2010 you were among a group of prisoners and remandees who escaped from the Biru Corrective Institution. The National Court issued a bench warrant for your arrest in April 2011. You, however, surrendered to the police on 27th September 2011 and was prosecuted and punished summarily in the District Court for escaping from lawful custody. You continued to be in pre-trial custody until you were granted bail by the National Court at Waigani on 11th May 2012.
   
10. Counsel therefore said you spent a total of 4 years, 7 months and 2 weeks in custody awaiting your trial for this matter.
    
11. Your counsel posed two issues for the Court, consideration on sentence. These are:
    
    • Whether this case is on that warrants the imposition of the maximum penalty of five (5) years; and if not
    • What is the appropriate head sentence to be imposed?
      
12. Counsel pointed out to the Court that the maximum sentence for this offence is 5 years imprisonment but he submitted that the Court has "inherent jurisdiction" under Section 19 of the Criminal Code to impose an alternative sentence within the options enumerated under that provision.
    
13. Counsel also drew the Court's attention to the fact that sentences are meted out for a purpose. The most common of these are deterrence, separation, rehabilitation and retribution. He quotes extensively from the judgement of the late Kapi J. (as he then was) in Acting Prosecutor v. Uname Aumane [1980] PNGLR 510 where His Honour discussed these matters.
    
14. Counsel correctly submitted that the maximum penalty is always reserved for the worst category of cases. (Goli Golu v. The State [1988] PNGLR 193) This principle equally applies to the offence under Section 328(5) of the Code.
    
15. On the question of an appropriate head sentence your counsel drew the courts attention to recent cases by the court which he said could be used as a guide in imposing a head sentence in your case. (See Alex Yembi v The State; SCA No. 45 of 2003; The State v. Philip Iparu (2005) N2995; The State v. Eric Papen (No.2) (2009) N3639) I will discuss these cases in detail further down in this judgment.
    
16. Counsel also drew the court's attention to the fact that while public deterrence remains the prevailing purpose the court is not deprived of its discretion and ought to distinguish between cases of heedlessness, or recklessness and error of judgment and cases involving circumstances of aggravation on the other hand. (Karo Gamoga v. The State [1981] PNGLR 443).
    
17. Counsel acknowledged that this offence is prevalent and that sentences will increase as a result but he submitted that this does not remove the court's sentencing discretion. He said that the court had been exercising their discretion and have seldom imposed the maximum penalty of five (5) years.
    
18. Counsel submitted that there are mitigating factors in your favour that the Court should take into account. These are:
    
    • You come from a Christian family background. Your father the late Bani Hoivo was a founding member of the PNG Renewal Church before he became governor for the Oro Province.
      
    • You fully cooperated with the police at the time of your initial arrest and subsequent investigations
      
    • You pleaded guilty to the charge thus saving time and money for the Court
      
    • You expressed remorse for your offence and to the deceased's relatives
      
    • You paid a hefty compensation of K10000 in cash and kind
      
    • Your immediate family members assisted in successfully lodging a claim with MVIL on behalf of the deceased's dependants resulting in a payment of K50,000.
      
19. Counsel, however, conceded that there are aggravating factors in your case. These are:
    
    • You had no valid driving license
    • That you escaped from custody while awaiting trial
      
20. In the circumstances counsel submitted that the mitigating factors in your case outweigh the aggravating factors. The sentence should therefore be less than what was imposed in the cases cited above. Counsel further said that such a sentence would not only punish you but also rehabilitate and reform you.
    
21. He therefore proposed a head sentence of 3 years which of course is well below your pre-sentence custody period of 4 years, 7 months and 2 weeks. Oddly though, he also asked for a sentence to the rising of the Court in addition to the 3 years sentence. He, however, recapitulated when the Court pointed out to him that he was inviting the Court to doubly punish you. He asked therefore that you be sentenced to the rising of the Court.
    

SUBMISSIONS BY THE STATE

22. Counsel for the State had nothing much to say except to say that the maximum penalty is five years imprisonment and he did not think that your case is of the worst category. He left the sentence to the Court to exercise its discretion.
    

THE LAW

23. The offence of dangerous driving causing death is prescribed by Section 328 (2)(5) which provides:
    

328. DANGEROUS DRIVING CAUSING DEATH

(1) ...

(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–

...

...

(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.

OBJECTIVE CONSIDERATIONS & SENTENCING TREND

24. Sentences as your counsel submitted are handed out for a purpose. A sentence may be for personal or public deterrence, may serve to separate the offender from society, or may be for the purpose of reform or rehabilitation or simply for the sake of retribution.
    
25. In cases of dangerous driving causing death it is accepted that that the primary purpose of sentencing is the need for public deterrence. The Supreme Court in Gamoga Karo v The State [1981] PNGLR 443 (27 October 1981) held that public deterrence prevails over other factors but went on to say that the sentence itself remains within the discretion of the court which ought to distinguish for the purposes thereof between cases of heedlessness or recklessness; i.e. between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other.
    
26. What this means is that offenders – including first time offenders – must necessarily be given custodial sentences. However, as to how long or short the term is, or whether it should be wholly or partially suspended, that falls squarely within the discretion of the sentencing court which will be guided by the prescribed penalty of the offence, the powers reposed in it by Section 19 of the Code and other legislation, precedents and the peculiar circumstances of a particular case and the over-riding object of public deterrence.
    
27. Non-custodial sentences are therefore imposed very sparingly, if at all, and only in very exceptional cases. As the Supreme Court held in Public Prosecutor v Sima Kone [1979] PNGLR 294 (2 August 1979) at p.297
    

"...only in the most exceptional of cases may the necessity for public deterrence against the offence be overridden by the circumstances of a particular case, to the extent that the offender be not gaoled."

28. In that case the National Court had earlier convicted the respondent for dangerous driving while being intoxicated and causing the deaths of his wife and son. The trial court placed the offender on recognizance to be of good behavior for two years with the condition that the offender would provide 10 days of service each month to occupational safety patients at the Port General Hospital.
    
29. The Supreme Court tossed the sentence on appeal and instead imposed a sentence of 18 months. The court noted that the offence had reached staggering proportions in the country at that time and while the members of court were sympathetic with the circumstances in with the respondent had found himself in, they felt that they would be failing society if they did not impose a substantial sentence of imprisonment on him. The court then quashed the trial court's sentence and imposed a term of imprisonment of 18 months.
    
30. And this was not the first time that the Supreme Court had expressed this view. In The Public Prosecutor v. Willy Moke Soki [1977] PNGLR 165, also an appeal against inadequacy of sentence, the offender had caused the deaths of six people and was discharged upon entering into a recognizance to be of good behavior for 12 months. While appreciating that sentencing options for this type of offence may differ widely between other jurisdictions and those existing in Papua New Guinea, the court said at p.167 that:
    

"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."

31. Hence, while the court can have regard to the character, antecedents, age, health or mental condition of offenders, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, these pale into insignificance when considered against the need for deterrence, not out of any concern that the offender might re-offend but for public deterrence generally. In other words the individual circumstances of the offender are subordinate to the necessity for public deterrence. Furthermore the offender is not a criminal who needs to be reformed or rehabilitated. Hence rehabilitation is irrelevant.
    
32. Now the maximum penalty for this offence is five years imprisonment. However, as is well established here and in other common law jurisdictions the maximum penalty is reserved for the worst cases. (Goli Golu v. The State (supra)). What constitutes a worst case depends of course on the peculiar facts and circumstances of each case. The courts have over the years tried to provide some guidelines as to what factors ought to be considered when passing sentence.
    
33. The State v Alphonse Naulo Raphael [1979] PNGLR 47 (12 March 1978) set out some factors that should be taken into account as aggravating circumstances when sentencing offenders for dangerous driving causing death. These are:
    

1. Driving without encec on a on an expired licence, with someone else's licence or in a vehicle not authorized by a licence in fact held.

2. Dg an ured and unregistered vehicle.

3. & Driving underunder the influencalcohr whirinkicohol.

4. &160; #160;&#160 Dri; Dg a nechanically defy defective vehicle
.ټ &#160ying ngers gers fors fors for mone money on a vehicle not licenced to carry passengers for reward

35. I adopt the guidelines in The State v Alphonse Naulo Raphael (supra.). However, at this juncture it is perhaps now appropriate to add a few more factors to the above list. These should include the following factors:

• The number of deaths or casualties
• Erratic, furious or aggressive driving
• Episode of road rage
• showing off or competitive driving
• running away from police pursuit
• ignoring signs of fatigue when driving long distances
• deliberate non-observance of street signs such as stop or give-way signs
• running through red lights at traffic lights
• driving without being accompanied by a licensed driver while being the holder of Learners Permit
• talking or texting on a mobile phone or operating hand-held computers and other electronic devises/gadgets while driving
  

36. While some of these factors have always been present there are some which have recently been brought about by advances in technology and which unfortunately have resulted in bad driving habits that now pose grave danger to road users. These include talking on and using mobile phones, hand-held computers and other electrical devises and gadgets while driving.

37. Modern urban life and the stress it brings about have also seen a new menace on roads – road rage. This is a new social phenomenon that is becoming prevalent in metropolitan cities around the world where drivers can go into uncontrollable rage at the slightest indiscretion by other drivers. In the absence of any diagnosed psychological condition road rage can be treated as an aggravating factor in appropriate cases.

38. Now drivers of motor vehicles on our public roads have a moral responsibly to ensure that their driving does not injure or kill other road users, their passengers, or those that may reasonably be affected by their driving.

39. When considering an appropriate sentence the question for the sentencing court then is; did the offender display such total disregard to the safety of other road users, himself and his passengers (if any) that it can reasonably be said that he abandoned his moral responsibility to such persons? If culpability is high, coupled with one or a combination of aggravating factors, then a much higher custodial sentence ought to be imposed.
40. Now what has been the sentencing trend over the recent past for offences of dangerous driving?

41. I have been referred to a number of recent cases by your counsel which said are of assistance to the Court. Below I tabulate the circumstances of these cases and the sentences imposed by the court.

	Case	Circumstances	Sentence
1	Alex Yembi v The State, SCA No. 45 of 2003	Appellant drove at excessive speed through crowd of people in the dark. Charged, convicted and sentenced to 3 years for 2 counts of dangerous driving causing death and 2 years for 2 counts of causing grievous bodily harm. Sentences concurrent, partially suspended, good behaviour for 12 months. Appealed against severity of sentence.	Appeal dismissed. Sentences confirmed.
2	The State v. Philip Iparu (2005) N2995	Prisoner pleaded guilty to dangerous driving causing 4 deaths. Prisoner unlicensed, inexperienced and heavily intoxicated. Carrying passengers when not supposed to. First offender. Considered by trial judge as worst case.	Sentence of 3 years.
3	The State v. Eric Papen (No.2) (2009) N3639	Prisoner pleaded guilty to one count of unlawful use of motor vehicle, one count of dangerous driving causing death and one count of causing grievous bodily harm. Mitigating factors - Prisoner was a first offender, paid hefty compensation to surviving victim (but (but none to deceased's relatives despite Village Court Order), cooperated with police, expressed genuine remorse. Aggravating factors – unlawful use of vehicle, intoxication, prevalence of offence.	Sentence of 3 years for dangerous driving causing death.

YOUR OFFENCE – SUBJECTIVE CONSIDERATIONS

42. Your counsel listed several factors which he said mitigate your offence. Most of these are, however, merely your personal antecedents. Be that as it may, I accept the following mitigating factors in your favour.

1. You pleaded guilty to the offence
2. You are a first offender (at the time of the offence)
3. You cooperated with police earlier on before and after your arrest
4. You showed genuine remorse for your offence
5. You and your people have paid substantial compensation totalling K10,000 in cash and kind to the deceased's relative.
   

43. However, I hold the following aggravating factors against you.

1. You were unlicensed having had a mere Learners Permit which had expired a month before your fatal accident.
2. You were speeding along a recently graded road with loose gravel
3. You were carrying passengers while unlicensed and while you were merely learning to drive.
4. As a mere learner you were driving without being accompanied by a licensed driver.
   

44. I do not take counsel's invitation to treat your escape from custody as an aggravating factor as this had nothing to do with your offending itself.

45. I do, however, take into account the long period you were in pre-trial custody as an extenuating factor though I do accept that you were there for other charges and possibly served a term of imprisonment on summary conviction for escaping from custody. The State did not plead any prior convictions nor did it demur to your counsel's submission for the total period you spent in custody awaiting your trial. These I therefore take into account in your favour.

46. Now what can we say about the circumstances of your case? Could it be reasonably said that you abandoned your moral responsibility to those who may have been affected by your driving which included those passengers you had in the vehicle, other road users including bystanders like the deceased?

47. Without question, there was a degree of abandonment of moral responsibility on your part well before you put that vehicle into motion on that day. You knew that you were a mere learner and therefore would not have had the necessary skill to take proper control of the vehicle. You were carrying passengers when you were not supposed to. You were not accompanied by a licensed and experienced driver and as it happened you were speeding on a road with loose gravel and lost control of the vehicle. The fact that you jumped off the vehicle when it went out of control bespeaks of your inexperience. This was not a case of heedlessness. Rather I view that you displayed a degree of recklessness when you undertook to drive the vehicle on that day under those circumstances.

48. I therefore place your moral culpability in the medium range because of the existence of the aggravating factors I have mentioned.

49. So what would be an appropriate sentence for you? To arrive at an appropriate sentence I have to fix a head sentence or starting point by viewing circumstances of your case objectively and then taking into account your subjective factors of aggravation and mitigation. I am also guided by sentences that the courts have imposed on cases similar to yours.

50. The maximum penalty for this offence is 5 years imprisonment. The maximum is, however, reserved for the worst category of cases. This is a well settled statement of law in this and other common law jurisdictions.

51. When comparing the peculiar circumstances of your case with the cases referred to above I am of the view that yours cannot be classified as a worst case.

52. Yes you were unlicensed and only then learning to drive and hence inexperienced, not accompanied by a licensed driver, and, yes you were speeding though not excessively, and, yes you were carrying passengers when you when you were not supposed to. These were factors that were present in The State v. Iparu (supra). You were, however, not intoxicated nor did you cause multiple deaths as in those cases. These weigh somewhat in your favour.

53. Should I then fix a head sentence point of 3 years as suggested by your counsel? Now having regard to what I have said above I think that a head sentence of 2 years is more appropriate when your aggravating factors are weighed against those factors that I have found to mitigate your offence.

54. In the normal run of things that would be the sentence I would impose on you. However, you have spent a total of 4 years 7 months and 2 weeks in pre-trial custody and I do not think that this Court will be doing you justice if I were to turn a blind eye to that fact. It is very clear that the period spent in custody - even if some of it were for other offences – is well over the sentence I have proposed here. It is in fact 2 months and 2 weeks shy of the maximum penalty of 5 years.

55. Therefore I do not propose to impose anymore punishment on you as you have more than sufficiently paid for your offence, largely through the State's failure to prosecute your case promptly I should add.

56. In the interest of justice I will sentence you to the rising of the court.

57. I therefore make the following orders:

1. I sentence you Bevan Hoivo to the rising of the Court
2. I further order that your bail be refunded.
   

Pondros Kaluwin, Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Accused