State v Tumpi [2019] PGNC 233; N7912 (19 June 2019)

N7912

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1190 & 1191 of 2018

STATE

V

JULIE TUMPI

Vanimo: Gora AJ
2019: 14^th, 17^th 19^th June

CRIMINAL LAW- Guilty plea – Two deaths arising from Motor Vehicle accident – Charge of manslaughter under Section 302 of Criminal Code – Claim of breach of duty of care and negligence – Standard of duty of care and degree of negligence.

CRIMINAL LAW – Guilty plea – Manslaughter – appropriate sentence – Maximum penalty not appropriate – Sentence should reflect standard of duty of care and degree of negligence – No evidence of high degree of recklessness and excessive aggravating circumstances – Suspended sentence appropriate.

Cases Cited:
Papua New Guinea Cases

Goli Golu v The Sate [1979] PNGLR 653
Ure Hane v The State [1984] PNGLR 105
John Elipa Kalabus v The State [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38
Regina v Druett [1965-66] PNGLR 395
Rex Lialu v The State [1990] PNGLR 487
Manu Kovi v The State [2005] PGSC 34; SC 789

Overseas Cases

Evgeniou v The Queen [1963-1964] 37 A.L.J.R 508

COUNSELS

Mr. R Luman, for the State
Mr. M August, for the Defendant

RULING ON SENTENCE

19^th June, 2019

1. GORA AJ: INTRODUCTION: JULIE TUMPI, an adult female prisoner, was charged with two counts of Manslaughter under one Indictment pursuant to Section 302 of the Criminal Code. She pleaded GUILTY to the both counts and was convicted accordingly by the court.
   
2. Count 1 reads:

“JULIE TUMPI of Patiko, Wosera Gawi, East Sepik Province stands charged that she on the 26^th day of February 2018 at Vanimo in Papua New Guinea unlawfully killed one RODERICK PAITA.”

3. Count 2 reads:

“JULIE TUMPI of Patiko, Wosera Gawi, East Sepik Province stands charged that she on the 26^th day of February 2018 at Vanimo in Papua New Guinea unlawfully killed one JOHN DONGAL.”

BRIEF FACTS

4. On the 26^th of February 2018, you drove a motor vehicle described as a Toyota Land Cruiser, single cabin, white in color bearing the registration number VAD 028. You were driving from West Tower into Vanimo town. The two deceased persons namely Roderick Paita and John Dongal were sitting in the back tray of the vehicle. At the junction at the top of the East and West Tower you tried to apply the brakes but the vehicle’s brakes did not work. The vehicle gained speed as it travelled downhill whilst on the third gear. You completely lost control of the vehicle and it ran off the road at Makepa Street. The vehicle first hit a frangipani tree branch and the branch hit deceased Roderick Paita on the head as he stood up to call out for you to slow down and he fell hard into a concrete drain causing severe head injuries. He died instantly.

Deceased John Dongal on the other hand fell off the vehicle’s back tray and landed hard on the bitumen road as the vehicle hit the side concrete drain. He also died instantly from severe head injuries received from landing hard on the bitumen surface.

State alleges that you had a Duty of Care under Section 287 of the Criminal Code as you were in charge of a dangerous thing, namely a motor vehicle. Your failure to ensure that the vehicle was properly serviced and road worthy and that the brakes were in good working conditions on the fateful day renders you criminally responsible for the deaths of late Roderick Paita and late John Dongal.

ISSUES

What is the appropriate sentence to impose on you?

THE LAW

5. The law on the offence of Manslaughter is provided under Section 302 of the Criminal Code. The provisions read:

“A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter. Penalty: Subject to Section 19, imprisonment for life.”

6. Imprisonment for life is the maximum penalty. However it is a trite law in this jurisdiction that the maximum penalty is reserved only for the worst type of cases as observed in the cases of Goli Golu v The Sate [1979] PNGLR 653; SC172 and Ure Hane v The State [1984] PNGLR 105; SC207. This principle of law has been re-stated in many other cases as well.
   
7. It is also a settled principle of law that each case must be decided on its own merits or on its own peculiar facts and circumstances as observed in cases such as John Elipa Kalabus v The State [1988] PNGLR 193; N604 and Lawrence Simbe v The State [1994] PNGLR 38; SC455.
   
8. Court also has an unfettered jurisdiction under Section 19 of the Criminal Code to impose a term of years instead of the maximum prescribed penalty or to impose alternative forms of sentence, of course taking into account relevant facts and circumstances of each case.
   
9. For your case, both counsels are of the view that it is not of the worst type which would attract the maximum penalty, even though two lives were lost instantly and prematurely under the circumstances.
   
10. I agree with the counsels, it is not a worst type of manslaughter case. There are several reasons. First, there is no evidence to suggest that you were driving dangerously at an excessive speed. Second, there is no evidence to suggest that you were driving whilst under the influence of alcohol and thirdly there is no evidence that you were driving recklessly, having no regard for your passengers.
    
11. In other words there is no evidence of high degree of recklessness on your part nor existence of excessive aggravating circumstances. This, I believe is the reason why you were not charged for the offence of Dangerous Driving of a Motor Vehicle causing death under Section 328 of the Criminal Code. Instead the State alleged you had a duty of care under Section 287 of the Criminal Code and therefore was charged with the offence of Manslaughter under Section 302 of the Criminal Code. This is a more serious charge in so far as the prescribed penalty of imprisonment for life is concerned. The offence of Dangerous Driving causing death on the other hand attracts only a sentence for a term not exceeding 5 years.
    
12. State has alleged that you had a “duty of care” which you breached by negligently driving a motor vehicle which, according to mechanical report, was not road worthy. Section 287 (Duty of Persons incharge of Dangerous Things) of the Criminal Code provides that:
    

“(1) It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precaution to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.”

13. You had pleaded guilty to the two counts of manslaughter whereby two lives were lost instantly and prematurely as a result of you losing control of the vehicle you were driving because its brakes failed to function. You had a duty of care towards your passengers and to other road users as well and when you failed to first ascertain the fitness and roadworthiness of the vehicle before driving, you were negligent in that respect and was in breach of that duty of care and you are criminally responsible.
    
14. It is therefore necessary to ascertain first, what was the standard of care required of you and second, the degree of negligence you demonstrated. These are important issues to take into account when considering sentence. Counsels made no submissions to assist court in this regard.
    
15. However, I take note of an old case of Regina v Druett [1965-66] PNGLR 395, in which the court held that “the standard of care required by a person in control of a motor vehicle is the same as that required by the common law where negligence causing death is alleged to amount to manslaughter.” In another foreign old case of Evgeniou v The Queen ([1963-1964] 37 A.L.J.R 508), the court observed that the standard of negligence to be established is the criminal standard, which involves showing the accused acted with such a reckless disregard for the lives and safety of others as to make his or her conduct deserving punishment.
    
16. As alluded, the standard of duty of care and degree of negligence on your part are important issues to consider when deciding sentence. It follows therefore that the circumstance of each case must be thoroughly and carefully taken into account. This was expressly stated in the case of Rex Lialu v The State [1990] PNGLR 487: SC401, in which the court in setting sentencing guidelines for manslaughter cases held that “a sentencing court must have careful regard to the circumstances of the death and the way in which death was actually caused.”
    
17. You pleaded guilty to the two counts of manslaughter. But it appears from facts that the deaths of the two deceased persons was caused indirectly by falling onto hard surfaces when they were thrown off the vehicle. One was first hit by a tree branch before falling off into a cement drain and the other by falling off onto the bitumen surface of the road. Their injuries were not directly caused by you and you had no deliberate intention to harm them. Cause of both deaths was fractured skulls. Not only that, but there is no evidence to suggest that you were driving recklessly such as speeding or driving under the influence of alcohol at that time. In fact you were driving to work that morning and driving downhill when the brakes failed. You tried all your best to control the vehicle but as it picked up speed downhill you lost control.
    
18. Though you had a duty of care, the degree of negligence on your part cannot be compared to the degree of negligence demonstrated by persons who drive recklessly for instance at a very high speed or driving under the influence of alcohol where the degree of negligence would be deemed as very high. In your case, you did not demonstrate such a high degree of negligence except that you failed to first ascertain the brakes of the vehicle which you drove were in good working condition. I’ am therefore of the view that the circumstances surrounding your case does not warrant imposing a very severe penalty or sentence. Of course there is no doubt the vehicle which you drove had faulty brakes at that time which caused the accident during which the two deceased persons died. Your actions led to the death of the two deceased persons to which you have already pleaded guilty and must be punished for your wrong doing.
    
19. The Supreme Court in the case of Manu Kovi v The State [2005] PGSC 34; SC 789 suggested four (4) categories of sentencing tariffs for each type of homicide case starting from the least serious circumstances of cases to the worst type case scenarios.
    
20. For the offence of manslaughter in particular, counsels have suggested that your case falls in category 1. In this category, the killing takes place in circumstances where the offender is emotionally under stress, there is de-facto provocation, killing is in a domestic setting, killing follows straight after argument, minimum force used or where victim had pre-existing disease that caused or accelerated death for instance enlarged spleen. The suggested sentencing tariff in this category is 8-12 years imprisonment.
    
21. Defence counsel submitted that Category 1 for manslaughter cases in the Manu Kovi case can be followed. However, the suggested tariffs are recommendations only and he suggested a head sentence of 5 years to be served concurrently for the both counts and to be wholly suspended with conditions.
    
22. Counsel for the state on the other hand submitted that court should impose a sentence of 3 years for each count to be served cumulatively because there were two victims, hence total of 6 years imprisonment. And further that custodial sentence was necessary because the family of deceased Roderick Paita wants you to serve time in prisoner for loss of their son’s life prematurely.
    
23. The sentencing tariffs in Manu Kovi case does not reflect the circumstances of deaths arising from motor vehicle accidents as in your case. I am therefore of the view that the suggested sentencing guidelines in that case may not be of much help in so far as the offence of manslaughter arising from motor vehicle accident is concerned. So it goes back to the issue of the varying degrees of breach of duty of care and negligence which I alluded to earlier and further to the application of the courts discretion under Section 19 of the Criminal code. There are also other considerations which the court can take into account such as the mitigating and aggravating factors and of course the Pre – Sentence Report before deciding on an appropriate sentence to impose.
    

MITIGATING FACTORS

24. Mitigating factors which weigh in favour of you are that:
    
    • (a) You are a first time offender and has no prior convictions recorded against you, meaning that you have generally been a good citizen but for this incident.
      
    • (b) You pleaded guilty to the two counts, initially in your admissions during the Record of Interview and thereafter when you pleaded guilty to the two counts on arraignment. This has saved court and the state time and resources to run a trial had you pleaded not guilty to the charge.
      
    • (c) You have expressed great remorse for the death of the two deceased persons one of whom you regarded as son and the other being your uncle respectively, who both lived with you and your family in your house. You apologized in court and said sorry to the families of the two deceased persons. You also said sorry to the court and to your own family particularly your husband and children for taking them thru this difficult situation.
      
    • (d) You had paid belkol monies of K10, 000 each to the families of the two deceased persons. You also met the cost of repatriating their bodies back to their places in Simbu and Kieta respectively. By doing this, you demonstrated that you are truly sorry for what happened and therefore took the responsibility upon yourself for causing the accident leading to the deaths of the two deceased persons.
      
    • (e) You are a mother of four children who are still under your care and they look upon you for their daily up – keep and welfare.
      

AGGRAVATING FACTORS

25. The aggravating factors, however is that two lives have been lost prematurely and forever. Their families will miss them for the rest of their lives. Courts have often stressed that the sanctity and value of human life is so precious than anything else. That is why the law places a duty of care upon those who are in control of dangerous things such as motor vehicles which may endanger human lives.
    

PRE- SENTENCE REPORT

26. The Pre- Sentence Report compiled by the Probation Services appears to be favourable to you. It has reported that you are a good citizen and has not been in conflict with the law previously and you have good standing in the community. It has therefore recommended that you are a suitable candidate for probation supervisions for any suspended term imposed by the court.
    

CONCLUSION

27. The circumstances relating to the offence you committed whereby you drove a motor vehicle which had defective brakes caused an accident during which two of your passengers were thrown off, one into the cement drain and the other to the surface of the bitumen road. They both sustained severe head injuries (fractured skulls) causing their deaths. The vehicle which you drove is a dangerous thing within the meaning of Section 287 of the Criminal Code and was under your control at that time. Therefore the law placed upon you a duty of care towards your passengers which you breached and was negligent when you failed to ensure that the vehicle was in good running condition, let alone the brakes, before you drove it. You have therefore broken the law in that regard and to which you pleaded guilty to the two counts.
    
28. The offence of manslaughter under which you were charged carry a maximum penalty of life imprisonment. However the maximum penalty is reserved only for the worst type cases. Your case does not fall into the worst type category and therefore the maximum penalty is not appropriate.
    
29. I have taken note of the aggravating factor that two lives have been lost prematurely as a result of your breach of duty of care which you owed to them as your passengers. However the degree of negligence on your part at that time was, in my view, minimum and does not call for a severe punishment particularly in view of the fact that there is no evidence of high degree of recklessness or excessive aggravating circumstances. I agree with counsel for the State that a sentence of three (3) years each for the two counts, hence total of six (6) years is appropriate to be served cumulatively because there were two victims.
    
30. Regarding the question of whether your sentence should be custodial, non- custodial or part-custodial and part non-custodial, I take note of the mitigating factors submitted on your behalf and of course the Pre-Sentence Report. You are a good and respected citizen with no previous conviction records. After the incident you took all necessary steps to mitigate peace between yourself and your family and the families of the two deceased persons by paying belkol monies of K10, 000 each to the families of the two deceased. Furthermore you took the responsibility of repatriating their bodies to their places in Simbuand Kieta respectively.
    
31. You are also a mother of four (4) children who are still under your care and custody. Your children will suffer most if you are to serve a custodial sentence. The Pre-Sentence Report has also recommended that you are a suitable candidate for Probation Supervision meaning that a suspended sentence is an option to consider.
    
32. All these considerations I take into account and I am of the view that a custodial sentence would not be appropriate given the circumstances surrounding this case.
    

ORDERS

33. Hence I make the following sentencing orders:
    
    1. Prisoner is sentenced to six (6) years imprisonment IHL being three (3) years for each count to be served cumulatively.
       
    2. Two (2) years are suspended on mitigating factors and the remaining balance of four (4) years is further suspended wholly with the following conditions:
       
    • (a) Prisoner is to do three hours community work each working day from Monday to Friday for the first 12 months of the suspended sentence to be supervised by the Provincial Probation Services in Vanimo.
      
    • (b) Prisoner is to pay compensation pursuant to the Criminal Compensation Act of K3000 each to the families of the deceased victims within the first 12 months of the suspended sentence.
      
    • (c) Prisoner driving licence is further suspended for the entire duration of the suspended sentence of 4 years and for further 12 months thereafter.
      
    • (d) Prisoner is to keep peace and be of good behaviour bond for the duration of the suspended term of 4 years.
      

Sentenced accordingly
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused