State v Yosi [2016] PGNC 160; N6348 (11 July 2016)

N6348

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 238 OF 2015

STATE

V

BENJAMIN YOSI

Mendi: Ipang J

2016: 5, 6 & 11 July

CRIMINAL LAW – Sentence – Criminal Code Act – Section 328 (2) & (5) – Dangerous Driving Causing Death (DDCD) – Plea of Guilty – Offender drove a Toyota Land Cruiser and bumped into a parked PMV Bus killing the deceased who was under the PMV Bus fixing a flat tyre.

CRIMINAL LAW – Sentence – Plea of Guilty – early admissions – co-operated with the Police – paid compensation to the deceased relatives – expressed genuine remorse – a first time offender – sentence of three (3) years custodial sentence imposed minus pre-sentence period of one (1) year, 7 months spent in custody – balance of the sentence wholly suspended and offender placed on Good Behaviour Bond with conditions.

CRIMINAL LAW – Sentence – Criminal Code Act – Section 330 (2) – the Court further orders that the Offender is disqualified from holding a driving license to drive any vehicles for the duration of one (1) year, 06 months from the date of his sentence.

Cases cited:

Goli Golu-v- State [1979] PNGLR 653

Karo Gamoga-v- State [1981] PNGLR 443

Public Prosecutor-v- Sima Kone [1979] PNGLR 294

Public Prosecutor-v- Willy Moke Soki [1977] PNGLR 165

State-v- Alphonse Raphael [1979] PNGLR 47

State-v- Kim Ondu [2014] PNGL 136

State-v- Kupa Nepo [2016] PNGL 10

Taiba Maima-v- Sma [1971-72] PNGLR 49

Counsel:

S. Luben, for the State

C. Koek, for the Offender

DECISION ON SENTENCE

11^th July, 2016

1. IPANG J: This is the decision on sentence for the Offender who pleaded guilty to one (1) count of Dangerous Driving Causing Death pursuant to section 328 (2) & (5) of the Criminal Code Act, chapter 262.

2. The brief facts for the purpose of sentence are as follow; on the 18^th of January, 2014 between 4pm to 5pm the Offender was driving a Toyota Land cruiser. He drove the said vehicle along Okuk Highway towards Mendi. At Rombeta Village, Lower Mendi a PMV Bus was parked on the left side of the road. This PMV Bus was also travelling to Mendi. It had one of its tyres flat so the crew was under the bus trying to fix the flat tyre. The crew deceased Mupi Makisolo still under the bus when the Offender drove the Land cruiser down and bumped the back of the PMV bus three (3) times causing the PMV bus to drop on top of the deceased causing his death. The deceased sustained bodily injuries thus his death when the PMV bus dropped on top of him.

Offence (Charge)
3. The Offender is indicted on one (1) count of dangerous driving causing death pursuant to section 328 (2) (5) of the Criminal Code Act, chapter 262. This provision reads;

328 Dangerous driving of a motor vehicle
(1)...
(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.
(3)...
(4)...
(5) If the Offender causes the death of or grievous bodily harm to another person he is liable on conviction indictment to imprisonment for a term not exceeding five years.

4. As per section 328 (5) the maximum penalty is 5 years. However, it is the sentencing practice that the maximum penalty is only reserved for the worst type of cases. See Taiba Maima-v- Sma [1971-72] PNGLR 49; Goli Golu-v- State [1979] PNGLR 653. Subject to section 19 of the Criminal Code Act, Chapter 262 a lower term sentence can be imposed.

5. In working out and to arrive at an appropriate sentence for the offender, I take into account several factors; the antecedent report, allocutus, mitigating factors, aggravating factors, case precedents, compensation paid etc...

Antecedent Report
6. The Antecedent Report tendered by the State Prosecutor recorded no prior convictions against the offender.

Allocutus
7. The offender said, “I am sorry to God that a person has died. I say sorry to the deceased family and relatives. Sorry to this Court. I admit committing this offence. I ask Court to have mercy on me.”

Personal Particulars
8. Ms. Koek of counsel for the offender submitted the following as the personal particulars for the offender;

• he is 34 years old;
• married with two (2) children;
• he is the 4^th born of his family where his father is alive and his mother is a deceased;
• he is from SDA faith;
• completed grade 2 education;
• a PMV driver for 12 years;
• in custody for 1 year, 07 months;
• paid compensation to the deceased family and relatives;
• prisoner has medical condition;
• is a fist time offender.
  

Compensation
9. A report submitted to Court by Ms. Koek from Provincial Peace and Good Order Committee in Mendi dated 5^th August, 2014 in relation to compensation paid by the offender and his relatives to the relatives of the deceased Mupi Makisolo revealed that pigs to the value of K175, 600.00 and cash money of K50, 000.00 was paid. Total value of pigs and money of K225, 600.00 was paid.

Mitigating Factors
10. The following are the mitigating factors;

• pleaded guilty
• first time offender with no prior convictions
• expressed genuine remorse
• co-operated with the police and made early admissions
• paid compensation
  

Aggravating Factors
11. The following are the aggravating factors;

• offence committed is serious in nature
• loss of life
• prevalence of the offence
  

Case Precedents
12. Ms. Koek submitted that the Court considers the previous cases dealing with dangerous driving causing death and apply the sentences imposed previously. In State-v- Albert Yaro a sentence of one (1) year, 06 months was suspended and the offender was placed on Good Behaviour Bond. In State-v- Kumbi Nol a sentence of one (1) year was suspended and the offender was placed on Good Behaviour Bond and ordered to pay K5, 000.00 to the deceased relatives.

13. Ms. Luben of Counsel of the State submitted that the National and Supreme Courts in Papua New Guinea have held in a number of cases that in cases of dangerous driving causing death, the Court must impose custodial sentences. See Karo Gamoga-v- The State [1981] PNGLR 443. A punitive and deterrent sentence can even be imposed where the Offender is a first time offender. See Public Prosecutor-v- Willy Moke Soki [1977] PNGLR 165; Public Prosecutor-v- Sima Kone [1979] PNGLR 294 and State-v- Alphonse Raphael [1979] PNGLR 47

14. In the case of State-v- Sima Kone [1979] PNGLR 294 the accused pleaded guilty to the charge of dangerous driving causing death of his wife and son who were in the vehicle with him. At the time he was under the influence of alcohol. The National Court placed him on two years own recognizance. The Supreme Court, in upholding the appeal by the Public Prosecutor against inadequate sentence, held that:

“In dangerous driving causing death only in most exceptional cases that imprisonment should not be imposed”.

15. The Supreme Court then submitted the sentence to eight months imprisonment. The Supreme Court did not state what the exceptional cases would be.

16. In the case of the State-v- Alphonse Naula Raphael [1979] PNGLR 47, the National Court in sentencing the accused to three years imprisonment for dangerous driving causing death, held that: “the sentence should be severe because of the prevalence of serious driving offences in Papua New Guinea”. There are more deaths resulting from dangerous driving than from the other causes each year in Papua New Guinea and so the higher Courts in Papua New Guinea called for custodial sentences.

17. In dangerous driving offences, there are certain factors that will make the offence to be one of a serious nature. These factors are laid down in the case of State-v- Alphonse Naula Raphael (supra) which are:

1. Driving without licence or an expired licence,

2. Driving uninsured and unregistered motor vehicle,

3. Driving under the influence of liquor or while drinking alcohol,

4. Driving a mechanically defective vehicle, or

;5. Cpassengers gers for reor reward on a motor vehicle not licences to carry passengers for rewarp.

18. In Soki-v- Public Prosecutor [1977] PNGLR 165 the Supreme Court Stated:

“Fe offof daus driving causing death, whilst appreciating that the causation of deaf death shth should ould not be allowed to convert into “dangerous driving” behaviour which would not otherwise rank as such, the seriousness of the outcome (the number of deaths resulting) may be looked at as one of the relevant features in assessing what sentence is required to act as private and public deterrent, and to assure public conscience that the Law in the prevailing state of the community existing in Papua New Guinea will demonstrate an element of retribution.”

19. The sentence imposed must reflect the seriousness and gravity of this offence. In addition to the penalty provision for this offence the Court has the power to make orders to disqualify the offender from holding or obtaining a driver’s licence either absolutely or for a specific period of time (see section 330 (2)(a)(b) Criminal Code).

20. In St-v- Kim Ondu [2014] PGNC 136 the National Court in Mendi sentenced the prisoner to 3 years imprisonment on a guilty plea to each of the three counts of dangerous driving causing death. The sentence was to be served concurrently. The prisoner was under the influence of alcohol and drove at high speed.

21. In St-v- Kupa Nepo [2016] PGNC 10 the National Court in Madang sentenced the prisoner to 5 years imprisonment but wholly suspended the sentence with conditions including payment of compensation. The prisoner was also disqualified from holding or obtaining a driver’s licence for a period of 5 years. The prisoner pleaded guilty to two counts of DDCD. He was the driver of a vehicle which lost control and over turned. Two of the passengers died from injuries sustained. The prisoner was not drunk. The road conditions were not good. It was also accepted that the relatives of the two deceased had forgiven the prisoner.

22. Both Counsels submitted for a three (3) years custodial sentence to be imposed however it is Ms. Koek for the Offender who submitted that the three (3) years be wholly suspended. Ms. Luben submitted that this Court consider suspension or disqualification of the Offender from driving pursuant to section 330 of the Criminal Code Act, chapter 262.
Court’s Analysis
23. I do totally agree with the respective submissions made by both Counsels. It is a common knowledge and as a matter of fact that the offence of dangerous driving causing death is most common and prevalent in this country. Through this act of dangerous driving many lives are loss and properties destroyed. Large compensation payments are demanded and paid to the relatives of the deceased person (s) as experienced in this case. Large amount of compensation demanded and paid should be in itself seen as a good lesson (s) for drivers to take extra precautions and drive in a manner that you avoid accidents.

24. In this present after considering the submissions from both counsels, the Antecedent Report, the Allocutus etc... I consider the appropriate sentence of three (3) years imprisonment. I deduct one (1) year, 07 months as the pre sentence period served in custody. This leaves the balance of one (1) year, 05 months imprisonment to be served. I, wholly suspended this balance of the sentence to be served and placed the Offender on two (2) years Good Behaviour Bond (GBB) with conditions;

(i) Not to consume any form of alcohol drinks
(ii) Not to take any forms of dangerous drugs like marijuana etc...

25. I further order for the disqualification and suspension of the Offender from driving for a period of one (1) year, 06 months from the date of this sentence pursuant to section 330 of the Criminal Code Act, chapter 262.

26. The Offender’s bail and guarantor’s surety fees be refunded.

Sentenced accordingly
_____________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender