State v Nepo [2016] PGNC 10; N6178 (12 February 2016)

N6178

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 928 OF 2015

THE STATE

V

KUPA NEPO

Madang: Cannings J
2015: 10 December,
2016: 4 &12 February

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

The offender pleaded guilty to two counts of dangerous driving causing death. He dangerously drove a vehicle, resulting in the death of two of his passengers.

Held:

(1) The starting point in sentencing for the offence of dangerous driving causing death, upon a guilty plea, is 30 months imprisonment for each offence.

(2) Mitigating factors: the offender was not drunk; the degree of dangerous driving was not high; the accident was to some extent caused by poor road signage; vehicle was registered and insured; offender was a licensed driver; no prior convictions; co-operated with police; has reconciled with relatives of deceased; well regarded in community; expressed genuine remorse.

(3) Aggravating factors: nil.

(4) A head sentence of 30 months was imposed for each offence. As there were two separate victims the sentences will be served cumulatively. There was no deduction under the totality principle. The total sentence was 5 years imprisonment, all of which was suspended on conditions, including that there be further reconciliation with the deceased's relatives, including modest compensation.

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

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) N5615
Tom Longman Yaul v The State (2005) SC803

SENTENCE

The offender was convicted after pleading guilty to two counts of dangerous driving causing death and the following reasons for sentence were given.

Counsel:

F K Popeu, for the State
J Morog, for the offender

12 February, 2016

1. CANNINGS J: This is a decision on sentence for Kupa Nepo who pleaded guilty to two counts of dangerous driving causing death under Sections 328(2) and (5) of the Criminal Code. The offences were committed at Gusap at 3.00 am on Saturday 23 September 2014, on the Bruce Jephcott Highway. The offender dangerously drove a Toyota 10-seater Landcruiser, by driving too fast and failing to keep a proper look out. He failed to see road signs that indicated a road diversion and drove straight ahead, the result being that he drove the vehicle into a dead-end stretch of road, requiring the sudden application of brakes. On loose gravel, the vehicle overturned. The offender and all seven passengers on board were injured, two of them fatally. The deceased persons are Karau Maso and James Dolo.

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:

On 27 September 2014 I was driving my passengers, who are all pastors and workers of God, from Lae to Ramu for a religious gathering. The road had been changed and I was new to the road. I thought the road was going straight ahead but it suddenly diverted. I was caught by surprise. I drove straight ahead. But it was a dead end. I realised too late and had to apply the brakes. The gravel was loose and the vehicle overturned. All eight of us in the vehicle were injured, including me, and two passed away. It was an accident. None of us was drunk or had any bad intentions. The relatives of the deceased understand this. They acknowledge that this event happened while we were doing God's work. I have reached an understanding with them. We have settled it in God's way but I know that I still have to face the law.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). It is accepted that the road conditions were not good and that the offender was genuinely taken by surprise by the road diversion. There was not a high degree of culpability. He was not drunk. It is also accepted that a high degree of forgiveness exists on the part of the relatives of the two deceased persons.

PRE-SENTENCE REPORT

5. A report on the offender was prepared by the Community Based Corrections Service (the Probation Office). He is 33 years old. He comes from Wabag District of Enga Province. He is married with four children. He is the first born in a family of four children, one of whom is deceased. His parents are deceased. His remaining family members are strongly supportive of him. He has a grade 10 education. He has never been formally employed but has undertaken a number of enterprises in the informal sector, which have been sufficient to sustain his family. His health is sound. Since the date of the offences he has lived at Drai Wara settlement on the outskirts of Ramu town. He is a pastor in the Lutheran Holy Spirit Movement Church and is actively involved in Church activities. He is highly regarded in the local community. Documentary evidence was presented of the offender's statement in his allocutus that he has settled the matter with the relatives of each of the deceased.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Morog highlighted the guilty plea, the absence of prior convictions, the presence of remorse, the fact that it was a one-off incident, the offender was new to the road; it was in effect a tragic accident in which the degree of culpability was small; he has reconciled with the relatives of the deceased. Mr Morog asked for a two-year sentence for each offence, which should be made concurrent and fully suspended.

SUBMISSIONS BY THE STATE

7. Mr Popeu did not take issue with the head sentence for each offence but submitted that, as there were two victims, the sentences should be made cumulative. He also submitted that, though the offender has said that no compensation is being sought by the relatives of the deceased, a requirement for compensation should be imposed if the Court suspends the sentence.

DECISION MAKING PROCESS

8. 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 for each offence?
• step 4: should the sentences be served concurrently or cumulatively?
• step 5: what is the effect of the totality principle?
• step 6: should the pre-sentence period in custody be deducted?
• step 7: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. 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.

10. 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?

11. 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. I will follow that approach here.

STEP 3: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

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

• the offender was not drunk;
• the degree of dangerous driving was not high;
• the accident was to some extent caused by poor road signage;
• the vehicle was registered and insured;
• the offender was a licensed driver;
• no prior convictions;
• co-operated with police;
• has reconciled with relatives of the deceased;
• expressed genuine remorse.
  

Aggravating factors: nil.

13. There are more mitigating factors than aggravating factors. However, it is not the comparative number of mitigating and aggravating factors that solely determines the sentence. It is the strength of each factor that is crucial. I impose a head sentence of 2.5 years imprisonment for each offence. The total potential sentence the offender is facing is:

2.5 years + 2.5 years = 5 years.

In addition, it is appropriate to order that he be disqualified from holding or obtaining a driver's licence for the period of the sentence. This will no doubt cause him inconvenience and hardship. This is a natural consequence of being convicted of offences involving the death of two people. I will make an order under Section 330(2) (a) of the Criminal Code.

STEP 4: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

14. The question is whether the sentences should be served concurrently (at the same time) or cumulatively (sentences are added together). In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

There were two separate victims, therefore I uphold the State's submission that the sentences should be served cumulatively.

STEP 5: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

15. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I do not consider that five years is excessive. That will remain the total sentence.

STEP 6: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. There is nothing to deduct.

STEP 7: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. 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, because of the many mitigating factors and the absence of aggravating factors, I have decided that all of the sentence will be suspended.

18. I uphold Mr Popeu's submission that, despite what the offender has said about having sorted out all issues with the relatives of the deceased, and despite what some relatives of the deceased have stated in writing, an element of compensation is required in order to assist all the parties involved in ensuring full reconciliation and closure. The whole of the sentence is suspended on the following conditions, that the offender:

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 appear before the National Court at Ramu on 19 April 2016 at 9.00 am to prove compliance with condition (1);
   
3. must, within six months after the date of sentence, with his family, participate in a reconciliation ceremony with the relatives of each of the deceased, which shall be supervised and witnessed by the Police, the Village Court and the Probation Office, and:
   
   • in respect of each of the deceased, pay compensation of K5,000.00 cash + 1 pig + foodstuffs to the relatives of the deceased;
     
   • the deceased person's relatives must contribute 5 chickens + foodstuffs;
     

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

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;
   
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 for the period of the sentence;
    
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.
    

19. 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 whom 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, Kupa Nepo, having been convicted of two counts of dangerous driving causing death contrary to Sections 328(2) and (5) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	Nil
Resultant length of sentence to be served	5 years
Amount of sentence suspended	5 years
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 19 February 2016, disqualified for a period of five years, 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