State v Rato [2017] PGNC 68; N6694 (20 March 2017)

N6694

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 16 OF 2016

THE STATE

V

RONALD RATO

Wabag: Auka AJ
2016: 9^th December,
2017: 3^rd and 20^th March

CRIMINAL LAW – Sentence – Particular offence – Guilty Plea – Dangerous driving causing death – Two (2) years imprisonment less time spent in pre-trial custodial term – Sentence fully suspended – Degree of dangerous driving very high- Warrant order for disqualification of Driving Licence – Criminal Code S.328 (2) (5), S.330 (2) (a) and S.19

Case Cited:
The State v. Nepo (2016) N6178
The State v. Joseph Kalasin, CR 1405 of 2014 Unreported Judgement dated 17^th March, 2015
The State v. Philip Samson (2016) N3647

Counsel:
Mr. Joe Waine, for the State
Mr Robert Bellie and Mr. Jeffery Kolowe, for the Accused

DECISION ON SENTENCE

20^th March, 2017
1. AUKA AJ: The accused was committed to stand trial by the District Court at Wabag on 12^th October, 2016. On 9^th December, 2016 he pleaded guilty to an Indictment containing one Count of Dangerous Driving causing death under S.328 (2) (5) of the Criminal Code.

2. The maximum punishment for this offence is 5 years imprisonment. The Court has a general discretion to impose a lesser sentence with or without other forms of punishment enumerated in S.19 of the Criminal Code.

3. In addition it is open to the Court to Order that the offender be disqualified from holding a driver’s Licence pursuant to S.330 (2) (a) of the Code.

4. The brief facts of the case were that on 29^th May, 2015 at about 1:00pm accused drove a PMV 15 Seater Hiace Bus and was carrying passengers at that time. He drove along Mulitaka and Porgera Highway and was descending down hill and was travelling in High Speed. When he approached a corner it was difficult for him to slow down as he was speeding. As a result he drove off the road and hit the bystander a child by the name of VICENT TAU. After hitting the victim, he continued to drive. Having realised that he ran over the victim, he surrendered to Porgera Police and reported the matter. The victim died instantly. State alleged that the accused was driving dangerously along the public road in that he was speeding.

5. On the request of Mr Bellie of Counsel for the accused, the Court directed the Probation Officer based in Mount Hagen to furnish and file a pre-sentence report and directed the matter to return at the next circuit in February, 2017. The report was not available until 2^nd March, 2017. I’m now in possession of the report.

6. On his address on Sentence, the accused said I did not mean to commit the trouble. I was driving and it was an accident. We paid compensation in the village. He asked the Court to give him good behaviour bond or place him on probation. He asked the Court to have mercy on him and impose a sentence which he can serve at the Community level with some reporting conditions every 2 weeks.

7. I have had the benefit of reading the Pre-Sentence report. The report shows that the accused is aged 43 years and married with 2 wives and have 6 children. He completed grade 10 at Laiagam High School. He worked with Porgera Joint Venture as Mill Operator until 2011. He is now a PMV driver and is satisfied being a PMV driver. He said he has no problems in raising his family and his dependants and his 2 wives are very supportive in looking after their children. He is a first time offender and regrets his action. That some compensation has been paid to the victim’s line and peace was restored at the Community level. In terms of social relationships, the report shows that he is a leader in the Community and actively partakes in Community obligations. The report shows that there won’t be any further problem arising from this offence and if given a non-custodial sentence he will fit well into the community.

8. In relation to the accused’s personal particulars, Mr. Kolowe of Counsel submitted that the accused is 43 years old married with 2 wives and have 6 young children. He completed grade 10 at Laigam High School in 1993. He secured formal employment with PJV as a Mill Operator until 2011. Then he found a job as a PMV driver earning K400.00 a fortnight until the time of accident. Both his parents are deceased. He is a committed member of the Apostolic Church.

9. Mr. Kolowe submitted and urged the Court to consider in accused’s favour the following factors on Sentence;

1. That he pleaded guilty
2. That he has shown remorse to the victim
3. That he voluntarily surrendered to the Police
4. That he is a first time offender
5. That he was not drunk when the offence was committed
6. That some compensation in the sum of K7,000.00 cash, 45 pigs, 12 carton of Coke and 2 bags of Kaukau were paid.
7. That there is peace between the parties.

9. He submitted that although the offence is prevalent and that the life of a young person was taken away he submitted that a sentence of 1 to 3 years is appropriate and the sentence be wholly suspended with conditions would be the appropriate sentence in the present case.
   

10. Mr Emmanuel Thomas of Counsel for the State submitted that the Court should find that the accused had a high duty of care. He said any reasonable driver would have taken care and avoided the incident. There is Peace between the parties and the offender is not a threat to the community.

11. The trend of Sentencing on dangerous driving causing death cases depends entirely on the facts of each case. I refer to the case of The State v. Nepo (2016) N6178. Accused pleaded guilty to two (2) Counts of Dangerous Driving Causing two (2) Deaths. His Honour Cannings J imposed 5 years imprisonment which was wholly suspended on conditions. In addition, the Court ordered that accused be disqualified from holding or obtaining driver’s Licence for a period of 5 years. That order was made pursuant to S.330 (2) (a) of the Criminal Code.

12. I refer to another case of CR 1405 of 2014. The State v. Joseph Kalasim, Unreported Judgement dated 17^th September, 2015 where the accused pleaded guilty to the charge of dangerous driving causing death. His Honour Geita J imposed a sentence of 2 years imprisonment which was wholly suspended on conditions. In addition the Court ordered that accused be disqualified from holding drivers Licence for 3 years.

13. Another case I refer to is the case of The State v. Philip Samson (2016) N6347. The accused pleaded guilty to the charge of dangerous driving causing death. I imposed a sentence of 2 years imprisonment which was wholly suspended on condition that he shall enter into a recognizance to keep the peace for 2 years. As there were many mitigating factors which I considered were of weight, I declined to make an order for the accused to be disqualified from holding his driver’s Licence.

14. I have considered the accused’s expression of remorse during allocatus. I have also considered Counsel’s submissions in mitigation on Sentence and I consider that this is not a worst case of dangerous driving causing death.

15. I consider the following mitigating factors in favour of the accuseds;

1. He pleaded guilty and saved court’s time,
2. He is a first time offender,
   
3. He voluntarily surrendered to Police,
4. He Co-operated well with Police and admitted the offence,
5. He was a Licence driver,
6. He was not under the influence of Liquor,
7. Has paid 45 pigs, K7, 000.00 cash, 12 carton of Coke and 2 bags of Kaukau as compensation.
8. Has reconciled with relatives of the deceased
   

16. Against the Mitigating factors the Court considers that the degree of dangerous driving was very high which resulted in the death of a young child whose life was prematurely ended,

17. Taking into consideration all the particular circumstances of the case, the trend of Sentencing in the cases referred to; the mitigating factors in favour of the accused, I consider a sentence of 2 years imprisonment. The Sentence shall be wholly suspended on condition that he shall enter into a recognisance to keep the peace for 2 years.

18. As the degree of dangerous driving was very high in the case, I make an order for the accused to be disqualified from holding his driver’s licence for 12 months pursuant to Section 330 (2) (a) of the Criminal Code.

Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused