State v Waisi [2014] PGNC 86; N5615 (17 June 2014)

N5615

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 766 0F 2011

THE STATE

V

JAMES WAISI

Madang: Cannings J
2014: 3, 17 June

CRIMINAL LAW – sentencing – dangerous driving causing death, Criminal Code, Sections 328(2), (5) – conviction after trial – power of Court to order that offender be disqualified from holding or obtaining driver's licence, Section 330(2).

The offender was convicted after trial of dangerous driving causing death. He dangerously drove a dump truck across the path of an oncoming vehicle, a 15-seater PMV bus, by failing to signal and to keep a proper lookout for oncoming traffic. He caused the collision and caused the death of a passenger in the bus. This is the judgment on sentence.

Held:

(1) The starting point in sentencing for the offence of dangerous driving causing death, upon conviction after trial, is 4 years imprisonment.

(2) Mitigating factors: vehicle was registered and insured; offender was a licensed driver; no prior convictions; long and unblemished driving record; no more than one person killed; gave himself up; co-operated with police; paid bel kol; expressed remorse.

(3) Aggravating factors: commission of two distinct driving errors (failure to signal and failure to keep proper lookout); broke bail and had to be re-arrested.

(4) A head sentence of 3 years, 6 months was imposed. The pre-sentence period in custody (1 year, 3 months, 3 weeks, 1 day) was deducted, the resultant length of sentence to be served being 2 years, 8 months, 6 days, all of which was suspended on conditions, including that there be reconciliation with the deceased's relatives.

(5) In addition the Court ordered under Section 330(2)(a) of the Criminal Code that the offender be absolutely disqualified from holding or obtaining a driver's licence.

Cases cited

The following cases are cited in the judgment:

Karo Gamoga v The State [1981] PNGLR 443
The State v Alphonse Raphael [1979] PNGLR 47
The State v Daniel Soma (2006) N4480
The State v James Waisi (2013) N5438
Tom Longman Yaul v The State (2005) SC803

SENTENCE

The offender was convicted after trial of the offence of dangerous driving causing death and the following reasons for sentence were given.

Counsel

C Sambua, for the State
A Meten, for the offender

17th June, 2014

1. CANNINGS J: This is a decision on sentence for James Waisi who was convicted after trial of one count of dangerous driving causing death under Sections 328(2) and (5) of the Criminal Code. The offence was committed at Ramu on the morning of Friday 10 September 2010. The offender, who is an employed truck driver, dangerously drove a 10-wheel Isuzu dump truck, fully laden with gravel, into the path of a 15-seater Nissan Urvan, PMV bus, which had a full load of passengers, causing a collision between the two vehicles, which led to the death of one of the PMV passengers, 33-year-old Philip Sareng. The offender committed two serious driving errors: he failed to signal his turn and failed to keep a proper lookout for oncoming traffic. Further details of the circumstances of the offence are found in the judgment on verdict (The State v James Waisi (2013) N5438).

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment:

I am very sorry about what happened. I did not mean to kill the deceased. What happened was an accident. I ask for the mercy of the Court.

PRE-SENTENCE REPORT

4. The offender is aged 63 and is married with four children. He comes from Yorinofi village, Henganofi District, Eastern Highlands Province. He has been employed as a truck driver for most of his adult life, commencing in Panguna in 1967. He has been living and working as a truck driver at Ramu since 2007. He has a primary school education. The relatives of the deceased, who are from the Kabwum District of Morobe Province, have requested K50,000.00 compensation. The offender does not have the financial capacity to meet such a request.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mrs Meten pointed out that the offender had surrendered to the Police on the day of the incident and cooperated fully in the Police investigation. He has paid bel kol of K3,000.00. He is a licensed driver. He has been employed as a driver over a long period and this was his first offence. She submitted that a sentence of three years would be appropriate, from which the pre-sentence period in custody should be deducted and the balance of the sentence should be suspended.

SUBMISSIONS BY THE STATE

6. Mr Sambua did not take issue with the sentence proposed by the defence counsel.

DECISION MAKING PROCESS

7. 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?
• step 5: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. 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.

9. The maximum sentence is therefore five years imprisonment. In addition it is open to the Court to order that the offender be disqualified from holding a driver's licence. Section 330 (cancellation of driver's licence to operate motor vehicle) states:

(1) In this section, "driver's licence" includes any driving licence or driving permit deemed to be equivalent in Papua New Guinea to, and accepted in place of, a driver's licence for the purpose of authorizing the holder to drive in Papua New Guinea any vehicle of the type or class to the driving of which the driving licence or driving permit is applicable.

(2) Where a person is convicted on indictment of an offence in connexion with or arising out of the driving of a motor vehicle by him, the court may, in addition to any sentence that it may pass, order that the offender be, from the date of conviction, disqualified—

(a) absolutely; or

(b) for such period as the court shall specify in its order,

from holding or obtaining a driver's licence to operate a motor vehicle.

(3) A copy of an order under Subsection (2) shall be transmitted by the proper officer of the court to the Commissioner of Police.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. In The State v Daniel Soma (2006) N4480 I indicated that a useful starting point for sentencing purposes is the middle of the available range of zero to five years imprisonment, ie 30 months imprisonment. That was a case in which the offender pleaded guilty. Where an accused pleads not guilty and is convicted after trial, and in light of the fact that there is such a narrow sentencing range available, I consider that it is appropriate to use a starting point of four years imprisonment. That is what I will use in this case.

STEP 3: WHAT IS THE HEAD SENTENCE?

11. The head sentence will reflect both mitigating and aggravating factors. Mitigating factors are:

• the vehicle driven by the offender was registered and insured;
• the offender was a licensed driver;
• he had no prior convictions;
• he has a long and previously unblemished driving record;
• no more than one person was killed;
• the offender surrendered to the Police;
• he co-operated with the Police;
• he has paid bel kol;
• he expressed remorse.
  

12. Aggravating factors are:

• the offender committed two distinct driving errors (failure to signal and failure to keep proper lookout);
  
• he broke bail and had to be re-arrested.
  

13. There are more mitigating than aggravating factors, so the sentence will be less than the starting point of four years. I fix the sentence at 3 years, 6 months imprisonment.

14. In addition, it is appropriate, in particular in view of the advanced age of the offender, to order that he be disqualified from holding or obtaining a driver's licence. This will no doubt cause him inconvenience and hardship. He may well lose his job as a truck driver. This is a natural consequence of being convicted of a very serious offence involving death of a fellow road user. It is in the public interest that the offender no longer drives a motor vehicle of any description. I will make an order under Section 330(2)(a) of the Criminal Code that, with effect from three days after the date of sentence, he be disqualified absolutely from holding or obtaining a driver's licence.

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

15. The offender has spent 1 year, 3 months, 3 weeks, 1 day in custody in connexion with this offence. I decided that that period will be deducted from the total sentence under Section 3(2) of the Criminal Justice (Sentences) Act.

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

16. Prison terms for this offence are by no means unusual. A prison term is the best way in which the Court can signal the gravity of an offence involving death of an innocent person and provide a deterrent against commission of similar offences (Karo Gamoga v The State [1981] PNGLR 443, The State v Alphonse Raphael [1979] PNGLR 47). However, in this case, in addition to the generally favourable pre-sentence report, there are three matters that favour suspension: (1) the offender has already spent a considerable time in custody in connection with the matter; (2) he is a man of advanced age; (3) the order that he be absolutely disqualified from holding or obtaining a driver's licence is by itself a considerable penalty. I have therefore decided that the balance of the sentence will be suspended on the following conditions:

1. must report to his Probation Officer within three days after the date of sentence who shall ensure that within five days after the date of sentence the offender surrenders possession of all driver's licences he holds to the Police Station Commander, Ramu;
   
2. must, within six months after the date of release from custody, with his family, participate in a reconciliation ceremony with the relatives of the deceased, supervised and witnessed by the Police, the Village Court and the Probation Office, and:
   
   • pay compensation of K3,000.00 cash + 1 pig + foodstuffs to the victim;
   • the victim's family must contribute 5 chickens + foodstuffs;
     

and, within one week after the reconciliation ceremony, the Probation Office shall provide a report of the reconciliation ceremony to the National Court in Madang;

3. must appear before the National Court at Madang within seven months after the date of sentence to prove compliance with condition (2);
   
4. must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
   
5. must not leave Madang Province without the written approval of the National Court;
   
6. must perform at least two hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;
   
7. must attend his local Church every weekend for service and worship and submit to counselling;
   
8. must report to the Probation Office at Madang as and when required and at least once every six months;
   
9. must not consume alcohol or drugs;
   
10. must not drive any motor vehicle;
    
11. must have a satisfactory probation report submitted to the National Court Registry at Madang every six months after the date of release from custody;
    
12. if he breaches any one or more of the above conditions, 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.
    

17. The last condition is very important. If any of these conditions is breached, any person may report the matter to the Police or to the Probation Office or to the Office of the Public Prosecutor, 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 (Tom Longman Yaul v The State (2005) SC803).

ORDER

(1) The offender, James Waisi, having been convicted of the offence of dangerous driving causing death contrary to Sections 328(2) and (5) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	3 years, 6 months
Pre-sentence period to be deducted	1 year, 3 months, 3 weeks, 1 day
Resultant length of sentence to be served	2 years, 2 months, 6 days
Amount of sentence suspended	2 years, 2 months, 6 days
Time to be served in custody	Nil, subject to compliance with conditions

(2) In addition, it is ordered, pursuant to Section 330(2)(a) of the Criminal Code, that the offender is, with effect from 20 June 2014, absolutely disqualified from holding or obtaining a driver's licence to operate a motor vehicle.

(3) The Assistant Registrar of the National Court, Madang, shall forthwith transmit a sealed copy of this order and the judgment of the Court to:

(a) the Commissioner of Police;
(b) the Superintendent of Traffic;
(c) the Office-in-Charge of Traffic Matters for Madang Province; and
(d) the Police Station Commander, Ramu.

Sentenced accordingly.
_________________________________________________________

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