State v Tobiyala [2016] PGNC 213; N6417 (9 July 2016)

N6417

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 259 (NO. 2) OF 2013

THE STATE

V

ROSE TOBIYALA
Alotau : Toliken, J.
2016: 9^th July

CRIMINAL LAW – Sentence – Dangerous driving causing death – Trial – Prisoner momentarily crosses her lane and hits deceased as he crosses road – Case of heedlessness – Not worst case of dangerous driving – Mitigating and aggravating factors considered – Mitigating factors outweigh aggravating factors – Appropriate sentence – Deterrence as over-riding purpose of sentence considered – Need for discount for extra judicial and unlawful conduct of deceased’s relatives on prisoner – Sentence of 2 years – Partial suspension on conditions – Criminal Code Ch. 262, ss 328 (2)(5), 330(2).

Cases Cited:

Avia Aihi v The State (No. 3) [1982] PNGLR 92
Gamoga Karo v The State [1981] PNGLR 443
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Sima Kone [1979] PNGLR 294
The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165
The State v Alphonse Naulo Raphael [1979] PNGLR 47
The State v Hoivo (2012) N5175
The State v Philip Iparu (2005) N2995

Counsel:
H Roalakona and D Sopane, for the State
S Endehipa, for the Prisoner

SENTENCE

9^th July, 2016

1. TOLIKEN J: The accused, Rose Tobiyala, was found guilty after trial for one count of dangerous driving causing death thereby contravening Section 328(2)(5) of the Criminal Code, Chapter 262 (the Code). She was charged that –

“... on the 22^nd day of October 2012 [she] drove a motor
vehicle on a road, namely Charles Abel Highway
dangerously thereby causing the death of one Reuel Aradina.”

2. The brief facts for the purpose of sentencing are that on the morning of 22^nd October 2012, the prisoner was driving back from Gurney Airport in a white double cabin Toyota Hilux Fifth Element, owned by her employer Avis Rent-A-Car (Avis), at about 7.45 am in bound for Alotau. She was driving at a speed of 45 – 50 k.p.h. Just as she was negotiating the Huluna Corner at Rabe, for some reason she momentarily left her lane and her vehicle collided with the deceased child, who was attempting to cross the road, just off the centre line into the right lane. She applied the brakes then swerved back to her lane, but quickly drove off when she heard and saw people shouting and running towards her. It appeared that the child was dragged towards the left side of the road about 8 meters from the point of impact and landed just about a meter and half from the edge of the bitumen.
   
3. The deceased child was attempting to cross over to the other side of the road to get to the Elementary School which he was attending. That morning, he was walking to school with his two older brothers. There were other kids walking to school. On that stretch of road, there is the Rabe Primary School situated about 130 meters further up on the right side of the road from the Gurney direction, and the Elementary School on the left side of the road. The child was rushed in a taxi to the Alotau General Hospital but was pronounced dead on arrival.
   
4. The offence of dangerous driving carries a maximum penalty of 5 years imprisonment. It is, however, trite that the maximum penalty is usually reserved for the worst instances of a particular offence. The Court has discretion to impose a lesser sentence, though, if the circumstances of the case warrant it pursuant to Section 19 of the Code. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92).
   
5. The sentencing issues for then are; (1) Is this a worst case that must attract the maximum penalty?, (2) if not, what then should be an appropriate sentence for the prisoner?, and (3) is this an appropriate case to warrant suspension of the sentence, whether wholly or partially.
   

ANTECEDENTS

6. The prisoner is 57 years old. She comes from Obowada village, Trobriand Islands, Kiriwina/Goodenough, Milne Bay Province. She is a widow with 5 grown up children - 3 have moved away while 2 are still in her care. She is a Catholic and a member of the women’s group in her church.
   
7. The prisoner is, and was at the time of her offence employed by Avis Rent –A- Car as its Branch Supervisor here in Alotau. She had been with Avis for the last 28 years.
   

ALLOCUTUS

8. The prisoner apologised to the Court and the victim’s family for her offence. She said she was deeply sorry for their loss, which she says was hers too, referring to the deceased as “beloved Reuel.” She said she feels their pain having lost a son in a road accident too. She pleaded for leniency.
   

SUBMISSIONS

9. Mr. Endehipa submitted that this was not a worst case of dangerous driving. Hence, it should not attract the maximum penalty. He cites numerous factors which he said mitigated the offence. This includes the fact that the prisoner is a first time offender, is deeply remorseful, the payment of compensation and the sustained and continuous harassment, threats and intimidation of the prisoner by the victim’s parents and other relatives.
   
10. No Pre-Sentence Report was filed, but Counsel relied on two affidavits by the prisoner and one Kaia Maino - the National Fleet Manageress for Avis, which basically chronicles the events and actions taken by the Company after the incident and its dealings with the victim’s parents and relatives, and the harassment etc. that the prisoner was subjected to.
    
11. Mr. Endehipa submitted that this was not a case of recklessness and does not contain the serious aggravating factors that are normally associated with a lot of cases of this kind such as intoxication, unlicensed driving, uninsured and unregistered vehicle and driving mechanically defective vehicles.
    
12. Counsel submitted, therefore, that the prisoner should be sentenced to the rising of the Court.
    
13. Mr. Sopane, through Ms Roalakona, submitted that this was a case of reckless driving that must attract a term of 3 years to act as a strong deterrence. And the Court should not consider any suspension at all.
    

PRINCIPLES OF SENTENCING/ TREND

14. The primary purpose of sentencing for dangerous driving causing death is deterrence (public and personal), for the protection of road users, and in the words of the Supreme Court in The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165 at 168, “to assure the public conscience that the Law in the circumstances prevailing in Papua will demonstrate an element of retribution.” And to that end, the Court was of the opinion that for many communities in country, custodial sentences were “the only really effective personal and public deterrent available” and that “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."
    
15. What this effectively means is that cases of dangerous driving causing death, must invariably be visited upon with custodial sentences in the first instance. The only exception would be what the Supreme Court in The Public Prosecutor v Sima Kone [1979] PNGLR 294 described as “the most exceptional of cases” where “the necessity for public deterrence against the offence may be overridden by the circumstances of a particular case, to the extent that the offender is not sentenced to a term of imprisonment.”
    
16. In Gamoga Karo v The State [1981] PNGLR 443, the Supreme Court then held that whilst public deterrence prevails over other factors, the sentence itself remains within the discretion of the Court, which ought to distinguish 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.
    
17. 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 himself 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. (The State v Hoivo (2012) N5175)
    
18. The Courts have over the years tried to provide some guidelines as to what factors ought to be considered in sentencing offenders for this offence. The State v Alphonse Naulo Raphael [1979] PNGLR 47, subsequently approved by the Supreme Court in The Public Prosecutor v Sima Kone (supra), set out some factors which may be taken as aggravating the offence. These are:
    
    • Driving without a licence, on an expired licence, with someone else’s licence or in a vehicle not authorized by a licence in fact held.
      
    • Driving an uninsured and unregistered vehicle.
    • Driving under the influence of alcohol, or whilst drinking alcohol.
    • Driving a mechanically defective vehicle.
    • Carrying passengers for money on a vehicle not licensed to carry passengers for reward.
19. The number of deaths may also rightly be taken into account as also aggravating the offence (The Public Prosecutor v Willy Moke Soke (supra). In The State v Bevan Hoivo (supra), I said that other factors may include the following:
    • erratic, furious or aggressive driving
    • episodes of road rage
    • showing off or competitive driving
    • running away from a 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 on or texting on a mobile phone or operating hand-held computers and other electronic devises/gadgets while driving.
      
20. These are factors that have been brought about either by the general trend of deteriorating bad manners, the pressures of modern metropolitan life and advances in technology, which unfortunately have resulted in bad driving habits that now pose grave danger to road users.
    
21. But, what would constitute those “exceptional cases” alluded to by the Supreme Court in Willy Moke Soki and Sima Kone? The Supreme Court in Gamoga Karo (supra) intimated that the term “most exceptional of circumstances” is not the same thing as circumstances uncommonly encountered. There is such a variety and combination of circumstances involved in facts giving rise to the particular charge, which makes it most undesirable for any Court of Appeal to lay down guidelines other than in the broadest sense.” And as Kandakasi, J. said in The State v Philip Iparu (2005) N2995, the circumstances are infinite. It is, therefore, left to the sentencing Court to decide what circumstances may be considered “most exceptional” in each particular case.

SERIOUSNESS AND DEGREE OF CULPABILITY

22. The seriousness of a particular offence will, therefore, depend the following factors when viewed objectively –
    
    • Whether the prisoner was aware of the risk involved in her manner of driving. This would normally involved prolonged or sustained bad driving.
      
    • Whether the offender’s judgment and mental faculty were affected by alcohol or drugs.
      
    • The speed in which the offender was driving. This would include excessive speed, driving above statutory speed limits, driving at a speed that was not be appropriate for the prevailing conditions of the road or cutting corners while speeding.
      
    • Serious culpable behaviour such as texting or talking on a hand-held mobile phone, or hand-held radio or other devises or media which distracts one’s attention, or aggressive and furious driving, or knowingly driving when suffering from a medical or physical condition that significantly impairs the offenders driving skills, or ignoring signs of fatigue when driving long distances, or knowingly driving mechanically defective or un-roadworthy vehicles including ones with smooth tyres.
    • Driving while only a holder of a learner’s permit.
    • Failing to have proper regard to vulnerable road users. This include driving without proper care, when driving through places like schools, hospitals, residential areas, pedestrian crossings or public market areas.
      
23. Several cases of late were cited to me by Counsel, but I think that only a couple bears some similarity to the current case because they resulted in a single casualty.
    
24. The State v James Waisi (2014) N5615 (Cannings, J.), there, the offender was convicted after trial. He drove a dump truck fully laden with gravel dangerously across the path of an oncoming 15-Seater PMV bus, by failing to signal and to keep a proper lookout for oncoming traffic. He caused the collision which resulted in the death of a passenger in the bus. The Court fixed a starting point of 4 years. The mitigating factors included the fact that the offender had no priors, a long unblemished driving record, that he surrendered to the police and had paid bel kol and remorseful. The aggravating factors were that the offender failed to signal and failure to keep proper lookout and the offender broke bail and had to be re-arrested. He was sentenced to 3½ years, less the pre-sentence custody period and he was permanently disqualified from holding or obtaining a drivers licence. The balance was wholly suspended with conditions.
    
25. The State v Bevan Hoivo (supra): There, the prisoner pleaded guilty to one count of dangerous driving causing death. He was carrying passengers and was travelling at high speed on a road that had been recently graded, and thus had loose gravel. He lost control of the motor vehicle and jumped off as it veered uncontrollably to the other lane. The vehicle ran off the road, and over a small a ditch where it knocked the deceased over, who was standing there killing him. The vehicle overturned with the deceased still caught under it. The aggravating factors there were, that the prisoner was unlicensed. He merely had a learner's permit which had expired a month before the accident. He was speeding along a recently graded road with loose gravel.
    
26. I was of the view that a sentence of 2 years would be appropriate in the circumstances of that case. However, because the prisoner had spent 4 years 7 months and 2 weeks in pre-trial custody, I sentenced him to the rising of the Court instead.

CURRENT CASE

(i) Seriousness/Starting Point

27. So, what is the objective seriousness of the case at hand? Can it be considered to be a worst instance of dangerous driving? What would be a starting point?
    
28. Here, the prisoner was driving at a reasonably low speed of 45 -50 k.p.h. She was, hence, not speeding. Notwithstanding that, for some reason, she cut into the other lane. She was also driving along a stretch of road where two schools are located on each side of the road, in the morning, on a school day, where school children were walking to their respective schools. I, therefore, assess the seriousness of her dangerous driving to be moderate. I would set a starting point of 3 years.
    
29. What, then, should be an appropriate head sentence? This will depend on the aggravating and mitigating factors, and the personal circumstances of the prisoner.
    

(ii) Mitigating and Aggravating Factors

I take into account the following mitigating factors:

• The offender is a first time offender
• She has an unblemished record of driving
• She has expressed genuine remorse.
• With the assistance of her employer Avis Rent-a-Car, a total of K15,000.00 was paid as compensation to the deceased's family, and the company further assisted in funeral expenses by providing two vehicles. These were initially released for 7 days only, but the relatives of the deceased held on to them for a period of two months resulting in substantive damage to one of the vehicles.
• She voluntarily surrendered the police.
• The prisoner was subjected to all sorts of threats of violence, harassment and intimidation by the deceased's relatives, and basically has been living in constant fear the whole time she had been on bail.
• The prisoner has offered to reconcile with the deceased's family but her attempts had been refused.
• She was not speeding.
• The deceased child, who was merely 6 years old, crossed the road without adult supervision at a corner. As expected of a child of that age, he did not possess the ability to draw proper judgment, not only of the speed of passing vehicles, but of the dangers of crossing the road, more-so at a corner, as was the case here.

30. Her aggravating factors are:
    • She crossed her lane, however, slightly and hit the deceased child as he was crossing the road.
      • The offence of dangerous driving is a very prevalent offence.
        
31. Mr. Endihipa urged me to follow Bevan Hoivo and sentence the prisoner to the rising of the Court. It is to be noted, that the sentence in Bevan Hoivo was basically, forced by the fact that he had spent almost 5 years in custody awaiting his trial. While I did intimate that a sentence of 2 years was appropriate, in hindsight higher sentence would probably have been justified as his dangerous driving was a little high.
    
32. Mr. Sopane for the State submitted, that an appropriate sentence should be 3½ years, because he said this was a case of recklessness that directly resulted in the death of the deceased. Counsel submitted that a stiff penalty was warranted. He directed the Court to what Kandakasi, J. said in The State v Philip Iparu (supra) where His Honour commented that past sentences, and the practice of suspension them was outdated.
    
33. There may be some truth that sentences may have been relatively low, and suspensions may be anathema to the necessity for public deterrence. However, each case has its own peculiar circumstances, thus, justifying a sentence befitting those circumstances, otherwise, the authorities would not have enjoined the distinguishing of cases of heedlessness from those of carelessness.
    
34. This was not a case of recklessness as submitted by the State. Rather, it was a case of momentary negligence or heedlessness. There was no pot hole at or immediately before the Huluna corner as I found in my decision on verdict. However, the prisoner clearly left her lane and swerved to the right, albeit very slightly, and unfortunately, hit the child who was obviously already on the road, but still on the right lane. Had the prisoner kept to the left when turning the corner, she would not have hit the child as I already alluded to above. It is unclear why the prisoner left her lane.
    
35. She knew that there were schools in the vicinity of the accident. She knew that there was an Elementary and a Primary School there. It was early on a school day and she knew or ought to have known that school children, some as young as the deceased, were or would be walking to school on both sides of the road. She knew or ought to have known that the children would be crossing over to their schools from either side of the road. Therefore, she ought to have exercised more than the usual attention to ensure that she did not endanger the lives of these children.
    
36. I must impose an appropriate head sentence, one that will promote the declared purpose of sentencing for this offence - public deterrence on the one hand, while taking into account the interest of the prisoner on the other hand. This is not a case with the "most exceptional of circumstances" to warrant a non-custodial sentence. This was rather a case of momentary negligence, and heedlessness on the part of the prisoner, but there is nothing exceptional about it.
    

SENTENCE

37. So, taking into account the prisoner's mitigating factors, which appear to outweigh the two aggravating factors, I have found against her, I should think that an appropriate sentence should be below the starting point of 3 years. The fact that the prisoner, who is a widow, and, hence, without a man to stand by her side, was subjected to so much harassment, threats of physical violence and intimidation, should not pass without comment.
    
38. While the loss of a child, as a consequence of dangerous driving is very distressing to any grieving parent, the law should be allowed to run its course, without being helped along by extra-judicial and unlawful actions by aggrieved relatives. When this happens, as was the case here, the prisoner should justly deserve a discount.
    
39. In the circumstances, I impose a notional head sentence of 2½ years imprisonment. For the unlawful and extra-judicial harassment and intimidation of the prisoner resulting in unnecessary trauma, I deduct 6 months. The effective sentence is, therefore, 2 years. Should any of the resultant sentence be suspended?

SUSPENSION

40. Suspension of a sentence is discretionary on the part of the Court. One such principle is that a suspension must be supported by a Pre-Sentence Report. In this case, there is no such PSR, but the Court’s discretion under Section 19 of the Code to suspend a sentence is unfettered, and whilst opinions of the Supreme Court, a binding on the National Court, they do not remove the Court’s discretion. (The Public Prosecutor v Done Hale (1998)SC 564; Thress Kumbamong v The State (2008) SC 1017)
    
41. Hence, I am of the opinion that this is an appropriate case for me to exercise my discretion to suspend the sentence either in part or wholly. But, if we are to succeed in deterring dangerous driving on our public roads, which, continue unabated as we speak, then, a partial suspension would be the most appropriate.
    
42. From the sentence of 2 years, I suspend 1 year. The prisoner will serve 1 year and upon her discharge she will enter into recognizance without surety to be of good behaviour for a period of 1 year.
    
43. The State also applied for an order to either suspend the prisoner’s driving licence or to prohibit her from obtaining one. (Section 330 (2)) This is also discretionary, so I will not make such an order.
    

ORDERS

44. My sentence and orders are, therefore, as follows:
    
    1. The prisoner is sentenced to 2 years imprisonment.
       
    2. The prisoner will serve 1 year at Giligili Corrective Institution while the balance is suspended on condition that she will upon discharge enter into her own recognition, without surety, to be of good behaviour for a period of 1 year.
       
    3. The prisoner’s bail and sureties paid by her guarantors shall be refunded to them.
       
45. Ordered accordingly.

_______________________________________________________________
The Public Prosecutor: Lawyer for the State
Endehipa Lawyers : Lawyer for the Prisoner