State v Daku [2016] PGNC 64; N6244 (10 April 2016)

N6244

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 412 OF 2010

THE STATE

V

TAMI DAKU

Waigani: Davani .J

2016: 07^th & 10^th April

CRIMINAL LAW – sentence – prisoner charged - five counts of dangerous driving of motor vehicle - causing death – guilty plea – mitigating and aggravating factors considered – five different victims – sentence to be served cumulatively - time served in pre-trial custody considered - 10 years imprisonment imposed

Counsel:

Mr D. Kuvi, for the State
Mr E.Yarisa, for the Prisoner

SENTENCE

10^th April, 2016

1. Davani ,J: Tami Daku (the ‘Prisoner’) pleaded guilty to 5 counts of dangerous driving of a motor vehicle, charge laid under s.328 (5) of the Criminal Code. This provision reads;

“328. Dangerous driving of a motor vehicle

...

(5) if the offender causes the death of or grievous bodily hard to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years ... “

FACTS

2. The Prisoner pleaded guilty to having caused the death of ISSAC AGOVE, TAPOAM PHILIP NONGA, RIMON LOMON, FREDA KEOPA and NANCY TAPOAM. (all ‘Deceased’).

3. The motor vehicle accident occurred along the Popondetta-Orobay road on 1^st October, 2009. At that time, the Prisoner was driving a PMV 15 seater bus the (the ‘PMV’).

4. Near Damahu village, about 10 to 15 km out of Popondetta town, the Prisoner attempted to overtake a Hino truck (the ‘Hino’), however, could not because there was another vehicle in front of the Hino. The Prisoner then decided to overtake the Hino, notwithstanding. In doing so, the PMV ran off the road. As it was travelling very fast, the Prisoner lost control and the bus overturned. All Deceased suffered varying serious injuries and died as a result.

ALLOCTUS

5. On allocutus, the Prisoner expressed his remorse, both to the Court and to all Deceased’s’ families. He also said that he was in the process of overtaking the Hino’s trailer when the PMV was hit on the left side by the trailer, causing the PMV to overturn.

MITIGATING FACTORS

6. This is the Prisoner’s first offence. He also cooperated with the police. I heard that he surrendered to the police immediately after the accident.

7. I have heard also that his relatives paid compensation of K12, 000.00 and goods, to all Deceaseds relatives. The Prisoner also does not have any prior convictions.

AGGRAVATING FACTORS

8. The depositions show that the Prisoner and one or two of the Deceased had been and were consuming alcohol, whilst driving the PMV or whilst the PMV was driven by the Prisoner.

9. Additionally, the lack of care and skill exhibited by the Prisoner, whilst driving passengers including all deceased, is most aggravating indeed.

10. Finally, the serious nature of the injuries suffered by all Deceased demonstrates the speed at which the PMV was being driven, when the accident occurred. I discuss this further below.

ANALYSIS OF SUMBISSIONS
11. Both counsels agree that the dangerous driving of a motor vehicle which subsequently caused the death of another or others is a very serious and prevalent offence in Papua New Guinea (‘PNG’).

12. Mr Kuvi for the State submits that because of the prevalence of the offence in PNG, the Prisoner should be sentenced to a term ranging between 2 and 3 years and that the sentence should be cumulative.

13. Mr Yavisa for the Prisoner, however, submits that the mitigating factors outweigh the aggravating factors and for that reason, the Court impose a sentence ranging between 2 to 3 years and that it should be served concurrently.

14. Mr Kuvi referred the court to the following cases for comparison purposes and to also note the sentencing trend, with emphasis on the fact, that sentence must be increased because of the effluxion of time;

1. State v Philip Iparu (2005) N2995

This is a case where the Prisoner, whilst intoxicated and under the influence of alcohol , lost control of the vehicle he was driving, which drove off the road and into a river. The 4 passengers in the vehicle were thrown out of the vehicle into the river bed below where they all sustained serious head injuries and died as a result.

On guilty plea to a charge under s.328, he was sentenced to 3 years.

The court, when considering sentence, noted that customary compensation was paid, apart from the prisoner’s guilty plea and the fact that this was his first offence.

2. The State v Kim Ondu (2014) N5747

Two men were seated in the cabin of a Mazda Titan Dyna, (‘Dyna’) that the prisoner was driving, when the prisoner lost control of the Dyna and ran into a land cruiser parked on the side of the road. The land cruiser bumped into a pedestrian who happened to be walking by and the pedestrian died instantly. The prisoner then drove into a second parked vehicle. The two passengers seated in the cabin with him sustained serious injuries when the Dyna collided into the 2 vehicles. Their legs were stuck to the Dyna which was smashed in front. They both died in the Dyna.

On a guilty plea to 3 counts of dangerous driving causing death, the Court sentenced the prisoner to 3 years on each of the 3 counts, to be served concurrently.

3. The State v Kupa Nepo (2016) N6178

This is a case where the prisoner pleaded guilty to 2 counts of dangerous driving causing death. The Court held that 30 months imprisonment should be the starting point for any concurrent sentencing.

Unfortunately, counsel did not tender a copy of that decision. Also this decision is not published in the PNG Niu Media so I could not have access to it.

4. Mr Yarisa however, asked that sentence be made concurrent at 2 or 3 years and relied on State v Aina Uwantuna (1987) N726 where after a trial, an accused was sentenced to 2 years for the offence of Dangerous driving causing death.

In that case, the prisoner, whilst driving a bus, collided into a PMV where 12 passengers in the PMV were killed. He was sentenced to 2 years and which was concurrent.

15. On hearing submissions from counsel, I note Mr Kuvi requests generally that sentence be at 2 or 3 years, to be made “cumulative”. That in my view is an incorrect submission. I say this because s.20 of the Criminal Code says that sentence may, if desired, be made cumulative. That unless a sentence is made cumulative on the last sentence previously imposed, and then the new sentence must be made concurrent. So if the court wishes that the sentence be made cumulative, then it must;

(a) State that fact clearly; and

(b) Just as clearly, define what sentence is to be made cumulative upon.(see Re: The Corrective Institutions Act, Sebastian Loke Nuli v Johannes Benson Manigut [1984] PNGLR 53)

16. Additionally, what must be borne in mind is that, if the offences are committed in the same transaction against the same victim, it is appropriate to make the sentence concurrent. If however, the offences arise out of two different transactions, then sentence should be made cumulative. If sentence is to be made cumulative, then the court must consider the totality of the sentence and impose a sentence that is not crushing on the offender.

17. As with all cases, the courts sentencing discretion under s.19 of the Criminal Code is guided by well known principles. These principles are;

1. The ‘one transaction rule’ where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent;
   
2. where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. E.g. burglary and violence to the householder or assault plus escaping from custody, or sexual assaults on different victims; and
   
3. the ‘totality rule or principle’ when the Judge has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentence to get a just total.
   

Appropriate Sentence

18. I am very much cognizant of the injuries suffered by all Deceaseds, having read the Autopsy Report prepared by Dr Mano Mao, the Surgical Service Registrar, of the Popondetta General Hospital, which are all dated 07^th August, 2009, and which all describe, amongst others, the injuries sustained. The Autopsy Report gives a summary of the injuries as;
1. Tapoam Philip Nonga- Severe head injuries with depressed skull fracture;
2. Rimon Lomon- Severe head injuries with basal skull fracture;

3. Freda Keopa – Fractured ribs, collapsed lung and bleeding in the chest cavity;

4. Nancy Tapoam –Severe head injury with depressed skull fracture;

19. These are injuries that were sustained as a result of the Prisoners careless driving and at excessive speed, factors which are very aggravating.

20. In this case, considering all the mitigating and aggravating factors, I find that a sentence of 2 years to be appropriate for one count. The prisoner will be sentenced to 2 years on each count, to be served cumulatively. In my view, the sentence must be served cumulatively because of the nature of the deaths and because there are different victims. The Prisoner will serve a term of 2 years on each count, to serve a total of 10 years to be reduced by the time spent on remand in custody, which will be reflected on the Certificate of Conviction.
21. Finally, in my view, I do not find that this sentence is crushing on the Prisoner because 5 lives have been taken because of his negligence, and carelessness. The penalty is appropriate under the circumstances, considering his guilty plea and remorse. I note particularly the payment of compensation to all Deceased’ s relatives and fully appreciate this to be a mitigating factor, very much in favour of the Prisoner and which has resulted in a decision such as this.

Count 1: Sentenced to 2 years in hard labour.

Count 2: Sentenced to 2 years in hard labour, to run cumulatively with count 1.

Count 3: Sentenced to 2 years in hard labour, to run cumulatively with count 2.

Count 4: Sentenced to 2 years in hard labour, to run cumulatively with count 3.

Count 5. Sentenced to 2 years in hard labour, to be run cumulatively with count 4.
________________________________________________________________
Public Prosecutors Office : Lawyer for the State
Public Solicitors Office: Lawyer for the Prisoner