N9155

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 268 OF 2020

BETWEEN
THE STATE

AND:
DANNY MINA

Vanimo:   Rei, AJ
2021:  21st May, 18th, 19th July

CRIMINAL LAW – Sentence – Dangerous Driving Causing Death.  
Criminal Code Act S.328 (2) & (5) – Guilty plea on one count.

CRIMINAL LAW – Sentence Power of Court invoked in ordering that the offender be disqualified from being issued with a driver’s license – S.330(2) Criminal Code Act.

Cases Cited:	

The State -v- Martin Ero N7510
The State -v- Goli Golu [1979] PNGLR 653

Legislations Cited:

Section 328 (2) & (5) Criminal Code Act
Section 330 (2) Criminal Code Act

Counsel
	
Ms. T. Aihi, for the State
Mr. K. August, for the Prisoner 

JUDGEMENT ON SENTENCE

19th July, 2021

1.	REI AJ: An Indictment was presented by the State on 21st May 2021 in which the accused was charged that he on the 21st day of September 2019 at Paiponi/Kamtan Road, Vanimo, West Sepik Province in Papua New Guinea did dangerously drive a motor vehicle registration number VAC.374 upon a public highway thereby causing the death of Wekno Mowi.

2.	Upon arraignment, the offender pleaded guilty to the charge.

3.	The brief facts are that the prisoner stopped the vehicle at Komtasi to buy a cigarette at the market there.  He was then approached by a group of men and asked to drive them to Yatamui to buy their beer.  Along the road between Akramanek and Komitasi (road) the prisoner so dangerously drove the vehicle that it overturned resulting in all passengers jumping out of the vehicle.  The deceased also jumped out and died as a result, the only person who then died.

4.	The prisoner was then 18 years of age at the time of committing the offence.  By now he would be about 20 years of age.

5.	He was then attending Naitin Primary School doing Grade VI.

ALLOCATUS

6.	Upon entering a guilty plea, the prisoner was asked to address the Court on the sentence to be imposed.

7.	He then said that he was sorry for what happened and, as a show of genuine remorse, his family paid cash of K1,000.00 to the relatives of the deceased as part payment for compensation.

8.	When this matter came up for Submissions on Sentence, Mr. August submitted that the prisoner and his family are still prepared to pay further compensation in the sum of K4,000.00 making a total payable compensation of K5,000.00.

MITIGATING FACTORS

9.	In mitigation for penalty, it was submitted the prisoner:

(i)	paid initial compensation of K1,000.00
(ii)	will pay a further amount of K4,000.00 
(iii)	is a first time offender
(iv)	expressed genuine remorse
(v)	a young offender 
(vi)	no prior conviction

10.	The aggravating factors are:

(i)	a death resulted from the accident.
(ii)	dangerous management of a motor vehicle
(iii)	speeding

SUBMISSIONS

11.	Mr. August submitted on behalf of the prisoner that he should be given a suspended sentence in the light of the fact that the mitigating factors outweigh the aggravating factors.

12.	He stressed that the prisoner and his relatives have paid K1,000.00 compensation and are still willing to pay another K4,000.00.

13.	He also submitted that the prisoner was previously convicted by the Vanimo District Court and sentenced 8 months imprisonment in hard labour which commenced on the 18th of October 2019 and ended on 17th June 2020.  He has been remanded in custody since 17th June 2020 awaiting the trial of the matter.

14.	He then submitted that the prisoner has been in custody for at least 1 year 9 months.

15.	Ms. Aihi for the State submitted that because a life was lost, and that the prisoner did not have a valid driver’s license he should be given a custodial sentence of three years and any sentence already served be made concurrent with the sentence to be imposed by this Court.

SENTENCE

16.	The prisoner stands charged under S.328 (2) and (5) of the Criminal Code Act which provides inter alia:

“(2)	A person who drives a motor vehicle on a road or a public place dangerously is guilty of misdemeanor.”
“(3)	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.”

17.	It is clear that a person who causes the death of another person resulting from the dangerous control and management of a motor vehicle is liable upon conviction to imprisonment for a term not exceeding five years.

18.	I note in this case that the prisoner did not have a valid driver’s license as a result of which the Vanimo District Court, West Sepik Province convicted and sentenced him to eight months imprisonment on 18th October 2019.

19.	On calculation, this term of imprisonment was served up to and including the 17th of June 2019.

20.	Since the 17th of June 2019 until today, the prisoner was remanded in custody awaiting the trial of this matter – which is a little over 12 months.

21.	He has therefore served about 20 months in prison being 8 months under the Court Order of Vanimo District Court and 12 months in remand.
22.	The Pre-Sentence Report filed on the 14th of July 2021 says that the prisoner is a suitable candidate for probation.

23.	I have considered all relevant factors in this matter and note that the mitigating factors outweigh the aggravating factors.

24.	I also note that the prisoner has cooperated with the Police and the Court in this matter.  He is a young offender and, at the time of committing this offence he was attending Naitin Community School doing Grade VI.

25.	His education progress has no doubt been adversely affected by this matter.

26.	A case similar to the facts of this case is The State -v- Martin Ero N7510 which was decided by His Honour Geita J.

27.	In that case His Honour imposed a non-custodial sentence of 2 years less any pre- sentence period.

28.	This is not the worst scenario case as is in the case of The State -v- Goli Golu [1979] PNGLR 653.

29.	The important feature of this case is that when the motor vehicle overturned, the deceased jumped out and was later found lying underneath the vehicle resulting in his death – a case befitting the defence of volenti non-fit injuria.

30.	But that does not mean the prisoner is absolved of criminal responsibility in that he was in control of a dangerous machine and should have taken necessary steps to avoid the accident, although I note that he did not posess a current valid driver’s license: a motor vehicle being a dangerous machine requiring proper control and management by the person behind the wheels.
	
ORDER

31.	Having giving consideration to all these factors I consider the prisoner be sentenced to 3 years imprisonment which term includes both the 8 months terms previously imposed by the Vanimo District Court and the 12 months in remand while waiting for the trial of this matter.

32.	The sentence is to be served concurrently.

33.	The balance of 1 year 6 months is to be suspended upon the following conditions:

(i)	the prisoner to pay K4,000 to the relatives of the deceased within 6 months from today which money shall be paid into the Trust A/C of the National Court of Justice in Vanimo and a report be made to Court
(ii)	the prisoner shall enter into a good behaviour bond while on suspended sentence
(iii)	the prisoner shall carry out community work on each Sunday throughout the term of the suspended sentence under the supervision of the officers of Probation and Parole Office, Vanimo
(iv)	the prisoner is not to be issued with a driver’s license pursuant to Section 330 (2) of the Criminal Code Act for a period of 3 years
(v)	the Senior Clerk of the National Court Sub Registry of Vanimo, East Sepik Province shall forthwith transmit a sealed copy of the Written Order and Judgement of the Court to:

•	The Commissioner for Police
•	Superintendent Traffic
•	Officer in Charge of the Vanimo Traffic Registry
•	PPC Vanimo
(vi)	the relevant officer of the Probation and Parole should make a report within 6 months as to the status of the community work performed by the prisoner
(vii) the prisoner is not to consume alcohol during the time of suspended sentence	
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defendants