State v Ero [2018] PGNC 384; N7510 (18 September 2018)

N7510

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 981 of 2018

THE STATE
-v-

MARTIN ERO

Vanimo:Geita J
2018: 10,14, 18 September

CRIMINAL LAW–Sentence - Dangerous Driving Causing Death – Criminal Code Act s328 (2) & (5) - Guilty plea on one count.

CRIMINAL LAW-Sentence –Power of Court invoked in ordering that the offender be disqualified from holding or obtaining driver’s licence, Section 330 (2) Criminal Code Act.

Cases Cited
Karo Gamoga v The State [1981] PNGLR 443
Saperus Yalikabut v The State (2006) SC890
The State v Alphonse Raphael [1979] PNGLR 47
The State v Benson Makapu (2015) N5993
The State v Goli Golu [1979] PNGLR 653 N180
The State v Soma [2006] PGNC 71;N4480.23/08/2006

Counsel:
Mr. Raphael Lumen, for the State
Mr. Michael August, for the prisoner

JUDGMENT ON SENTENCE

18 September, 2018

1. GEITA J: Upon arraignment the offender, aged 31 pleaded guilty to one count of dangerous driving causing death under Section 328 (2) and (5) of the Criminal Code. He dangerously drove a vehicle, a Nissan Dump Truck along Vanimo to Bewani road on 21 October 2017 resulting in the death of one of his passengers. The accused picked up passengers at Ossol village, Bewani and drove to Vanimo. He drove at high speed and lost control when the vehicle ran off the road and overturned. The deceased was seated on top of the truck’s roof and was thrown off upon impact. The offender has no prior convictions.

Allocutus

2. When the offender was invited to tell Court on what matters the Court should take into account when deciding punishment he said: This is my first time in Court and I ask to be placed on probation as I have two children, aged 2 years and 4 years and my wife is dead. I am sorry to the deceased’s family.

3. The offender has pleaded guilty and so he will be given the benefit of doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution. (Saperus Yalikabut v The State (2006) SC890.) He was said to have consumed some alcohol with the victim before the trip. Cash “bel kol” of K5000 and funeral expenses were taken care of by the offender’s employer.

Mitigating factors are:

4. The prisoner pleaded guilty;

1. Compensation paid to the deceased family members;
2. First time offender.

100. Genuine remorse shown

4. No prior convictions
   

5. The aggravating factors are:

1. One death resulted, a school age child.
2. Some alcohol consume
   

Pre-Sentence Report

6. A report on the offender was prepared by the Community Based Corrections Services, Ms Marilyn Binjari upon application by his Lawyer. He is 31 years old and comes from Ossol village in Bewani, West Sepik Province. He is married with two children aged between 2 and 4 years. Their mother has since died leaving them with the offenders’ mother and family to care for them. He has never been to school and was employed as a driver with a local logging company. His family contributed K760.00 and gave to the family of the deceased. His employer Jumbo Track Limited met the funeral expenses and haus krai and gave K5, 000 to Andrew Yapa, the deceased’s father. Some amount of K20, 000.00 in cash and kind was used as haus krai and funeral expenses. The report recommends that the offender is not a danger to himself and to his community as both families have since reconciled. The Probation Officer recommends the offender to be a suitable candidate for non-custodial sentence.

Defence Submissions

7. Counsel for the offender Mr August submitted that a sentence of 2 years be considered and to be wholly suspended with conditions based on the mitigating factors outweighing aggravating factors. The Court was invited to exercise its discretion under section 19 of the Code.

He submitted that only one death occurred and that was partly brought about by the victim who was drinking at the time and was seated on top of the cabin of the moving dump truck when he met his fate. He submitted that although someone had died as a result of his dangerous driving, this case cannot be said to be the worst. (The State v Goli Golu [1979] PNGLR653 N180). Mr August invited the court to rely on the case of the State v Benson Makapu (2015) N5993. That was the case I did in Vanimo in 2015 in which an old women was run over by the prisoner. I found that the accident was unavoidable and was not one of risk taking and that the accident was partly contributed by the victim. A sentence of 2 years was imposed but wholly suspended with conditions including the disqualification of the offender’s driving licence. Mr August submitted that the mitigating and extenuating circumstance far outweigh the aggravating factors as found in Benson Makapu case. (supra).

State Submissions

8. Mr Lumen concedes that the aggravating factors and the mitigating factors barely even out save for the fact that no amount of remorse or compensation can bring back the deceased to life. As to the amount of cash compensation (K20, 000.00) said to be paid to the deceased family, Mr Lumen submitted that there was no independent evidence to verify this payment. Whilst I do agree with Mr Lumen’s contentions, there appears to be some form of payment voucher attached to the report purportedly to show that such amount of money was paid by the accused’s employer towards funeral expenses, I will take judicial notice of that document. To my mind it is safe to infer that with that type of money together with food outlay, peace, normalcy and reconciliation between both families was reached.

As to the need for public deterrence, both general and personal, in these types of cases, Mr Lumen submitted that sentencing was a discretionary matter however urged Court to begin with a head sentence of 18 months to 2 years.(Karo Gamoga v The State [1981] PNGLR 443).

Decision Making Process

9. I will adopt and apply what I consider to be very useful guidelines developed by Justice Cannings in determining a mid-range sentence in dangerous driving causing death cases, i.e. 30 months imprisonment: (The State v Daniel Soma (2006) N4480. In the case before me the mitigating factors and the extenuating facts outweigh the aggravating factors. Ideally prison terms remain the preferred sentencing options in such cases were innocent live(s) are lost due to dangerous driving: (Karo Gamoga) supra, and The State v Alphonse Raphael [1979] PNGLR 47. In this case I am more inclined to consider a wholly suspended sentence in light of the many mitigating factors and the extenuating factor. Furthermore I consider it proper to disqualify the accused from driving again for some time.

10. As to the deceased family demanding K20,000.00 compensation from the accused and his family, I have said in some of my earlier cases that Courts should refrain from entertaining situations of one’s misery or misfortune turned into money making exercise. (The State v Benson Makapu [2015] N5993.

Order

11. Having been convicted on one count of dangerous driving causing death contrary to Section 328 (2) and (5) of the Criminal Code you are sentenced as follows:

1. Sentenced to 2 years less any pre-sentence period;
2. The whole of the remaining sentence to be suspended;
3. You are disqualified from holding or obtaining a driver’s licence to operate a motor vehicle for a period of five years. (Section 330(2) Criminal Code invoked)
4. The Senior Clerk of National Court Vanimo Sub Registry, shall forthwith transmit a sealed copy of this order and copy of judgment of the Court to:
   
   • The Commissioner of Police
   • The Superintendent of Traffic
   • The Officer in Charge of Traffic Registry for Vanimo
   • The PPC Vanimo.
     

Sentence accordingly.

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