State v Walia [2019] PGNC 328; N7961 (12 July 2019)

N7961

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 42 OF 2019

THE STATE

V

WILLIE WALIA

Alotau : Toliken, J.
2019: 19^th February, 12^th July

CRIMINAL LAW – Sentence – Dangerous driving causing death – Plea – Unlicensed driver – Prisoner Not worst case of dangerous driving – Mitigating and aggravating factors considered –Deterrence as over-riding purpose of sentence – Appropriate sentence – Sentence of 2 ½ years less time in pre-sentence detention – Appropriate case for suspension – Balance of sentence wholly suspended on condition – Two years probation - Prisoner not to obtain driving licence during period of probation - Criminal Code Ch. 262, ss 328 (2)(5), 330(2).

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Sima Kone [1979] PNGLR 294
Gamoga Karo v The State [1981] PNGLR 443
Avia Aihi v The State (No. 3) [1982] PNGLR 92
The State v Alphonse Naulo Raphael [1979] PNGLR 47
The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165
The State v Philip Iparu (2005) N2995
The State v Hoivo (2012) N5175
The State v Kupa Nepo (2016) N6178
The State v James Waisi (2014) N5615
The State v Tobiyala (2016) N6417
The State v Norton Malko (2018) N7606

Counsel:

L Rangan and A Kupmain, for the State
P Palek, for the Prisoner

JUDGMENT ON SENTENCE

12^th July, 2019

1. TOLIKEN J: On 19^th February 2019, the prisoner pleaded guilty to one count of dangerous driving causing the death of one Douglas Boure thus contravening Section 328 (2)(5) of the Criminal Code, Ch. 262.

FACTS

2. The brief facts are that on 11^th of May 2018, between 12.30 – 1.00a.m the prisoner was driving a PMV truck along the East Cape Highway, at high speed to drop off the deceased Douglas Boure at his village. As they were passing Bou Village the prisoner fell asleep on the wheels and ran off the road on his right side and hit a pandanus tree and then ran into a coconut. The impact of the collision was on the right side of the truck where the deceased was sitting. The deceased died as a result.

THE OFFENCE

3. The offence of dangerous driving carries a maximum penalty of 5 years imprisonment. It is, however, trite that the maximum penalty is usually reserved for the worst instances of a particular offence. The Court has discretion to impose a lesser sentence, though, if the circumstances of the case warrant it pursuant to Section 19 of the Code. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92).
   

ISSUES

4. The sentencing issues then are; (1) is this a worst case? (2) if not, what then should be an appropriate sentence for the prisoner?, and (3) is this an appropriate case to warrant suspension of the sentence, whether wholly or partially?
   

SENTENCING PRINCIPLES

5. The primary purpose of sentencing for dangerous driving causing death is deterrence (public and personal), for the protection of road users. In the words of the Supreme Court in The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165 at 168, this is “to assure the public conscience that the Law in the circumstances prevailing in Papua will demonstrate an element of retribution.” And to that end, the Court was of the opinion that for many communities in country, custodial sentences were “the only really effective personal and public deterrent available” and that “sentences of detention appear to be in tune with what public conscience and community feeling would demand in most cases of dangerous driving causing death."
   
6. What this effectively means is that cases of dangerous driving causing death must invariably be visited upon with custodial sentences in the first instance. The only exception would be what the Supreme Court in The Public Prosecutor v Sima Kone [1979] PNGLR 294 described as “the most exceptional of cases” where “the necessity for public deterrence against the offence may be overridden by the circumstances of a particular case, to the extent that the offender is not sentenced to a term of imprisonment” or sparred imprisonment.
   
7. In Gamoga Karo v The State [1981] PNGLR 443, the Supreme Court then held that whilst public deterrence prevails over other factors, the sentence itself remains within the discretion of the Court, which ought to distinguish between cases of heedlessness or recklessness; i.e. between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other.
   
8. Hence, while the Court can have regard to the character, antecedents, age, health or mental condition of offenders, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, these pale into insignificance when considered against the need for deterrence, not out of any concern, that the offender himself might re-offend, but for public deterrence generally. In other words, the individual circumstances of the offender are subordinate to the necessity for public deterrence. Furthermore, the offender is not a criminal who needs to be reformed or rehabilitated. Hence, rehabilitation is irrelevant. (The State v Hoivo (2012) N5175)
   
9. The Courts have over the years tried to provide some guidelines as to what factors ought to be considered in sentencing offenders for this offence. The State v Alphonse Naulo Raphael [1979] PNGLR 47, subsequently approved by the Supreme Court in The Public Prosecutor v Sima Kone (supra), set out some factors which may be taken as aggravating the offence. These are:
   
   • Driving without a licence, on an expired licence, with someone else’s licence or in a vehicle not authorized by a licence in fact held.
   • Driving an uninsured and unregistered vehicle.
   • Driving under the influence of alcohol, or whilst drinking alcohol.
     • Driving a mechanically defective vehicle.
     • Carrying passengers for money on a vehicle not licensed to carry passengers for reward.
       
10. The number of deaths may also rightly be taken into account as also aggravating the offence (The Public Prosecutor v Willy Moke Soke (supra). In The State v Bevan Hoivo (supra), I said that other factors may include the following:
    • erratic, furious or aggressive driving;
    • episodes of road rage;
    • showing off or competitive driving;
    • running away from a police pursuit;
    • ignoring signs of fatigue when driving long distances;
    • deliberate non-observance of street signs such as stop or give-way signs;
    • running through red lights at traffic lights;
    • driving without being accompanied by a licensed driver while being the holder of Learners Permit;
    • talking on or texting on a mobile phone or operating hand-held computers and other electronic devises/gadgets while driving.
      
11. These are factors that have been brought about either by the general trend of deteriorating bad manners, the pressures of modern metropolitan life and advances in technology, which unfortunately have resulted in bad driving habits that now pose grave danger to road users.
    
12. But, what would constitute those “exceptional cases” alluded to by the Supreme Court in Willy Moke Soki and Sima Kone? The Supreme Court in Gamoga Karo (supra) intimated that the term “most exceptional of circumstances” is not the same thing as circumstances uncommonly encountered. There is such a variety and combination of circumstances involved in facts giving rise to the particular charge, which makes it most undesirable for any Court of Appeal to lay down guidelines other than in the broadest sense.” And as Kandakasi, J. said in The State v Philip Iparu (2005) N2995, the circumstances are infinite. It is, therefore, left to the sentencing Court to decide what circumstances may be considered “most exceptional” in each particular case.
    

SERIOUSNESS AND DEGREE OF CULPABILITY

13. The seriousness of a particular offence will depend on the following factors when viewed objectively:
    
    • Whether the prisoner was aware of the risk involved in his manner of driving, normally in cases involving prolonged or sustained bad driving.
    • Whether the offender’s judgment and mental faculty were affected by alcohol or drugs.
    • The speed in which the offender was driving. This would include excessive speed, driving above statutory speed limits, driving at a speed that was not be appropriate for the prevailing conditions of the road or cutting corners while speeding.
    • Serious culpable behaviour such as texting or talking on a hand-held mobile phone, or hand-held radio or other devises or media which distracts one’s attention, or aggressive and furious driving, or knowingly driving when suffering from a medical or physical condition that significantly impairs the offenders driving skills, or ignoring signs of fatigue when driving long distances, or knowingly driving mechanically defective or un-roadworthy vehicles including ones with smooth tyres.
    • Driving while only a holder of a learner’s permit or being unlicensed.
    • Failing to have proper regard to vulnerable road users. This include driving without proper care, when driving through places like schools, hospitals, residential areas, pedestrian crossings or public market areas.
      

SENTENCING TREND

14. I cite the few cases below to show what has been imposed in similar cases and to provide some consistency.
    
15. The State v Kupa Nepo (2016) N6178 (Cannings, J): The offender there pleaded guilty to 2 counts of DDCD. He was driving a Toyota Landcruiser along the Bruce Jephcott Highway in Madang. He was driving too fast and failed to keep a proper look out on the road ahead. He failed to pay heed to road signs which indicated a diversion on the road and drove and therefore drove head to a dead end. He suddenly applied his brakes on loose gravel and the vehicle overturned killing two of the passengers on board while others sustained injuries. He was sentenced to 2 ½ years for each count for a cumulative sentence of 5 years. The sentence was wholly suspended with condition for compensation and probation supervision.
    
16. The State v James Waisi (2014) N5615 (Cannings, J.), there, the offender was convicted after trial. He drove a dump truck fully laden with gravel dangerously across the path of an oncoming 15-Seater PMV bus, by failing to signal and to keep a proper lookout for oncoming traffic. He caused the collision which resulted in the death of a passenger in the bus. The Court fixed a starting point of 4 years. The mitigating factors included the fact that the offender had no priors, a long unblemished driving record that he surrendered to the police and had paid bel kol and was remorseful. The aggravating factors were that the offender failed to signal, failed to keep proper lookout and absconded bail and had to be re-arrested. He was sentenced to 3½ years, less the pre-sentence custody period. He was also was permanently disqualified from holding or obtaining a drivers licence. The balance was wholly suspended with conditions.
    
17. The State v Bevan Hoivo (supra): There, the prisoner pleaded guilty to one count of dangerous driving causing death. He was carrying passengers and was travelling at high speed on a road that had been recently graded, and thus had loose gravel. He lost control of the motor vehicle and jumped off as it veered uncontrollably to the other lane. The vehicle ran off the road, over a small a ditch where it knocked the deceased over, who was standing there killing him. The vehicle overturned with the deceased still caught under it. The aggravating factors there were that the prisoner was unlicensed. He merely had a learner's permit which had expired a month before the accident and was speeding along a recently graded road with loose gravel.
    
18. I was of the view that a sentence of 2 years would be appropriate in the circumstances of that case. However, because the prisoner had spent 4 years 7 months and 2 weeks in pre-trial custody, I sentenced him to the rising of the Court instead.
    
19. The State v Tobiyala (2016) N6417: There the offender was driving at a speed of 45 - 50k.p.h into Alotau Town from Gurney Airport. As she was negotiating the Huluna Corner at Rabe village she momentarily left her lane and hit the deceased, an elementary pupil attending Rabe Elementary School, as he was attempting to cross over to the school which is situated on the opposite side of the road. She applied her brakes but upon hearing people shouting she sped off without stopping and in the process dragged the child about 8m from the point of impact. I convicted the offender after trial and sentenced her to 2 years imprisonment with light labour. The offender was a first time offender and was subjected to extra-judicial harassment and threats of violence by the deceased’s relatives, among other mitigating factors. From this I suspended 1 year with condition.
    
20. The State v Norton Malko (2018) N7606: The offender there, a policeman, pleaded guilty to one count of DDCD. He was on duty and fatigued from two continuous shifts. He was driving along the Charles Abel Highway, at high speed, in bound for Alotau Town when he hit and fatally injured an old woman who was attempting to cross the road at Waima Village. The deceased was attempting to cross over to the right side of the road from the left. She reached the middle of the road safely but in confusion turned back the left side of the road and got hit by the offender. The offender saw the deceased cross the road from a safe distance but did not slow down and as a result hit the deceased as she turned back. I sentenced the offender to 3 years imprisonment. I ordered him to serve 1 year and suspended the balance on condition.
    

ANTECEDENTS

21. The prisoner is from Gadudu Village, Alotau District, Milne Bay Province. He is 29 years old and is the first born of two siblings in his family. Both of his parents are still alive and he is a member of the United Church. He only has 6^th Grade formal education and was employed as a crew to the same PMV that he drove, earning a fortnightly wage of K280.00. He is a first time offender. He has been in pre-sentence detention for a period 1 years and 2 months.
    

ALLOCUTUS

22. The prisoner apologised to God and Court for breaking law and the victim’s family and the community. He pleaded for mercy and asked that he be placed on probation.
    

SUBMISSIONS

23. Mr. Palek submitted in behalf of the prisoner that an appropriate sentence for the prisoner here ought to be 12 – 24 months. Counsel supplied a bit more detail to the circumstances leading up the fatal incident. The prisoner was with the driver Mark Lemeki at the truck owner’s house having dinner when the deceased came and asked if he could be dropped off at Lelegwagwa Village. The owner agreed to have him dropped off after the prisoner and the driver had had their dinner. Soon after they set off for Lelegwagwa with Lemeki driving. The prisoner sat in the offside while the deceased sat in the middle. They stopped at Oparai Village and Lemeki went off to buy smoke. He took quite a while to return. The deceased wanted to be dropped off quickly so he asked the prisoner to drive him home and he did. However, as they drove past Bou Village the prisoner fell asleep on the steering wheel. He lost control of the vehicle and ran off the road at high speed and collided head on with a coconut tree. The deceased died from the impact. The prisoner was unlicensed.
    
24. Mr. Palek submitted that this is not a worst case and should therefore attract a sentence lower than 3 years
    
25. The prisoner’s Presentence Report is a balanced one. The author assessed the prisoner to be a “genuine and suitable” candidate for probation supervision. Compensation, comprising of K15,000.00 in cash and kind totalling K17,219.00 was also paid and accepted by the relatives of the deceased. This is therefore an appropriate case for a suspension.
    
26. Mr. Kupmain submitted in behalf of the State on the other hand that this case called for a deterrent sentence for the protection of road users and others. Factors that should be taken into account are that the prisoner was not licensed, he drove at high speed when he was inexperience or worst still that he did not know how to drive and thus in the process voluntarily assumed a great risk which resulted in the death of the deceased.
    

CURRENT CASE
Objective Degree of Culpability

27. The prisoner here was unlicensed and voluntarily took or assumed a dangerous risk that could result in the injury or death of other persons using the road. It was well past midnight and he would have been sleepy any way but decided to drive the vehicle. He was also speeding. He knew or ought to have known the risks involved when he decided to drive the vehicle on that night. His objective level of culpability would therefore be in the mid range. Hence I fix a starting point at 2 ½ years.
    

Mitigating Factors

28. I take the following mitigating factors into account:
    
    • The prisoner pleaded guilty to offence
    • His plea is an early one

• He co-operated with police by making admissions in his Record of Interview.
• He is a first time offender
• He appears to be genuinely remorseful
• Compensation of K17219.00 in cash and kind was paid to the deceased’s relatives.
  

Aggravating Factors

29. The following aggravating factors are present in this case:
    
    • This is a prevalent offence not only here in Milne Bay but right across the country
      • The prisoner was not licensed
      • He was speeding
    • In his record of interview he admits that neither he nor the deceased wore seat belts
    • He also admits in his record of interview that it was raining and dark as it was night and the road was wet. Hence his failure to take appropriate care and attention to the road conditions must aggravate his offending.
      
30. Now, it must said again that too many people, most of them innocent, are being killed and/or maimed on our public roads as a result of the dangerous driving of people like the prisoner here. And this obviously calls for the courts to pass appropriate sentences to deter and punish offending drivers. The prisoner here is not a criminal for whom rehabilitation should be considered as we have seen. Rather he must be punished for the sake of punishment so that he and would be offenders can be deterred.
    
31. Mr. Palek submitted that the prisoner’s culpability is lower than that of Malko who got 3 years. The difference between Malko and the prisoner is that Malko was a licensed and experienced driver even though he was fatigued from working almost non-stop for some 16 hours. Yes, Malko did not slow down when he saw the deceased cross the road which should have done but as we have seen the deceased in a moment of undecidedness suddenly turned back from where she had crossed and got hit as a result.
    
32. In this case, the prisoner deliberately took it upon himself to drive the vehicle. He did not have to because it was being driven by the driver Lemeki, who despite taking a little too long to return after alighting to buy smoke, would have driven the deceased home safely. The prisoner instead chose to listen to the deceased and took over the vehicle knowing full well that he was did not have a licence and therefore did not possess the skill and care in managing a dangerous thing like the vehicle well so that nobody is put in harm’s way. In effect the prisoner’s culpability would therefore be slightly higher than that of Malko.
    
33. In the circumstance I should think that an appropriate sentence should be in the same as in Malko. However, due to his mitigating factors I think that an appropriate sentence ought to be 2 ½ years. I therefore sentence him to 2 ½ years imprisonment. From that I deduct the period of 1 year and two months the prisoner had spent in pre-sentence detention.
    
34. This is appropriate case for suspension and since the prisoner has spent a year and 2 months already in detention the balance of his sentence is therefore wholly suspended. He shall be on probation for a period of 2 years with an addition condition that he shall perform 120 hours of unpaid community service for the Gadudu Elementary School under the supervision of the Head Teacher of the said school in consultation with Provincial Community Based Correction Officer in Alotau.
    
35. Furthermore, pursuant to Section 330 of the Code the prisoner shall not obtain a driver’s licence during the period of his probation.
    

Ordered Accordingly.

_______________________________________________________________
P. Kaluwin, Public Prosecutor: Lawyer for the State
L.B. Mamu, Public Solicitor: Lawyer for the Prisoner