State v Joseph [2017] PGNC 101; N6741 (8 May 2017)

N6741

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 898 OF 2015

STATE

V

TOMMY JOSEPH

Buka: Bona J.
2017: 25^th April, 3^rd, 8^th May

CRIMINAL LAW – Plea of Guilty – Dangerous Driving Causing Death – Child Victim – Victim hit by Vehicle – Died at Scene – Allegation of Speeding – Criminal Code Section 328 (2)& (5).

Cases Cited:

State v. Alphonse Raphael [1979] PNGLR 47.
State v. Jiki [2013] N5379.
State v. Samson [2016] N6347.
State v. Yosi [2016] N6348.

Counsel:

C. Sopa, for the State
C. Momoi, for the Accused

SENTENCE
8^th May, 2017

1. BONA J. The prisoner pleaded guilty to one count of Dangerous Driving Causing Death contrary to Section 328 (2) & (5) of the Criminal Code Act Chapter 262.
   
2. The brief facts of the case were that on the 24^th day of January 2015 the accused was driving along the main Kokopau – Arawa highway in a 10 seater 4 wheel drive vehicle registration no. UAB 743 towards Arawa between the hours of 3pm and 4pm in the afternoon.
   
3. Outside the Pembubu hamlet at Sorom village on the main highway the prisoner collided onto the deceased, Lenty Mondo. She died instantly due to severe head injuries, spinal cord neck injury and severe internal chest trauma.
   
4. The accused was driving at a high speed and hit the deceased as she was crossing the road. On realising this the prisoner stopped the vehicle and picked up the deceased and carried her to her father.
   
5. On allocatus the prisoner said he is sorry for what he did to the family and relatives of the deceased child. As an employee of the Selau District Office, Local Level Government they paid K100, 000.00 in compensation. The prisoner and his family have given an accumulated amount through cash and kind to the value of K5, 345.00 as bel kol payment.
   
6. The personal particulars of the prisoner are that he is 59 years old and comes from Torte village in the Selau District of the Autonomous Region of Bougainville. He is married with six children and was employed as a driver at the Selau District Office at the time of the offence. He is a member of the Catholic Church and attends church regularly as well as taking part in church activities in the village. He completed grade 6 at Hantua primary school in Tinputzs, then attended the Tinputz Vocational School and completed a carpentry course. He has also enrolled at the Sohano Correspondence School and has completed the three year course.
   
7. The offence of dangerous Driving Causing Death comes under Section 328 (2) & (5) of the Criminal Code Act and is as follows:
   

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 on indictment to imprisonment for a term not exceeding five years.

8. Counsel for the Prisoner told the Court that mitigating factors in favour of his client are that he has pleaded guilty and thus saved the Courts time and expense. This is his first offence and he has no prior convictions. He co-operated with the Police and has shown genuine remorse. Counsel also submitted that a substantial amount of
Compensation both in cash and kind has been given to the victim’s family.

9. A pre-sentence report was submitted to the Court which is favourable to the prisoner. After substantial compensation and bel kol payments were made to the victim’s relatives there has been no problems arising between the parties. The prisoner seems to be a softly spoken and quiet person and is highly regarded in his village. In his 30 years of driving he has never been in any trouble with motor vehicles. This being his first motor vehicle accident.
   
10. Counsel cited the following cases:
    

State v. Jiki [2013] N5379

State v. Samson [2016] N6347

State v. Yosi [2016] N6434

In all the cases the prisoners pleaded guilty to Dangerous Driving Causing death. Jiki and Samson were sentenced to 2 years imprisonment and were wholly suspended and Yosi was sentence to 3 years which was also wholly suspended.

11. However the offence of Dangerous Driving Causing Death is a prevalent offence in Papua New Guinea. In this case the life of a young child was prematurely terminated. From the medical report the injuries suffered by the deceased were horrific. In most cases a custodial sentence is deemed appropriate in that the deterrent aspects of punishment may well prevail over the reformative aspects. Nevertheless that does not remove the judicial discretion in relation to sentence to the extent that a sentence of imprisonment is mandatory in every case of dangerous driving causing death. See: State v. Alphonse Raphael [1979] PNGLR 47.
    
12. The Court takes into account the prisoner’s plea of guilty and that he has no prior convictions. He is a first time offender. He has co-operated well with the Police and has expressed genuine remorse.
    
13. A substantial amount of compensation has been paid to the deceased’s family as well as cash and kind in the reconciliation or bel kol ceremony that was conducted in the village.

He has been driving for the last 30 years of his life and 10 years of that 30 years was spent driving for the Selau District Office. All that time he has not been in any motor vehicle trouble until this incident.

14. This Court is also aware that young children should not be unsupervised when crossing roads. Especially main highways like the Kokopau to Arawa road because the speed limits are higher and children tend to cross roads without taking proper care like adults.
    
15. Taking all these factors into account this Court is of the view that a sentence of three years imprisonment is appropriate under the

circumstances.

16. The period of one (1) month spent in custody will be deducted which will leave a sentence of two (2) years and eleven (11) months to serve. However due to the favourable pre-sentence report and the substantial amount of compensation paid to the deceased’s family the rest of the sentence will be suspended and the prisoner will be placed on a Good Behaviour Bond for two (2) years and eleven (11) months on the following conditions:
    • (a) Must reside in Torte village, Selau-Suir District and shall not change his address unless given leave by the Court.
    • (b) Must not leave the Autonomous Region of Bougainville without leave of the Court.
    • (c) Must refrain from taking any alcohol or other intoxicating drugs or substances for the duration of the Order.
    • (d) Must attend church services and take part in church activities.
    • (e) Keep the peace and be of good behaviour for the duration of the Order.
17. Any cash fine will be refunded.

Take note that the breach of any of the above conditions will have you arrested and sent to prison to serve the rest of the sentence.

18. Accordingly the sentence of the Court is as follows:
    

Length of Sentence – 3 years

Pre-sentence deducted – 1 month

Sentence to be served – 2 years 11 months

Amount of sentence suspended – 2 years 11 months

Time to serve in custody – Nil – subject to compliance with conditions.

SENTENCED ACCORDINGLY

________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner