State v Hayka [2022] PGNC 339; N9764 (19 July 2022)

N9764

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 799 OF 2022

THE STATE

-v-

MAGGI HAYKA

Ramu: Geita J
2022: 7^th, 14^th, 19^th July

CRIMINAL LAW - Guilty after Trial - Particular Offence, Dangerous Driving Causing Death – Criminal Code Act s328 (2) & (5).

CRIMINAL LAW – Guilty after trial – Sentence – Driving not considered dangerous - death resulted - first time offender – unlicenced driver – driver under intoxication - victim partly contributed to the accident – Sentenced to 2 years, wholly suspended with Probation and conditions – Token compensation of K5000.00 awarded under Criminal Law (Compensation) Act 1991.

Cases Cited:
Papua New Guinean Cases

Goli Golu v. The State [1979] PNGLR 653
State v Jerry Javigut (2015) N6016
The State v Iparu [2005] N2995
Ure Hane v. The State [1984] PNGLR 105

Overseas Cases

R v Coventry [1938] HCA 31; 59 CLR 633l
McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 at 49-50 (Barwick CJ).

Counsel

Mr. Francis Popeu, for the State
Mr. Noel Loloma, for the Prisoner

JUDGMENT ON SENTENCE

19 July, 2022
1. GEITA J: The prisoner was found guilty after trial on one count of dangerous driving causing death. The offence falls under s. 328 (1) & (5) of the Criminal Code Act and attracts a maximum penalty of 5 years.

2. The facts as found by the Court on the conviction following trial are these: On 25 December 2021 the accused a 36-year-old female and mother of 4 children was driving along Gusap Mill Road compound in an unregistered and uninsured Toyota Land Cruiser 10-Seater vehicle whilst under the influence of alcohol. The vehicle was white in colour with registration no. EAH 544. The accused was unlicenced at the time and therefore not qualified to drive such grade motor vehicles.

3. As she attempted to do a right hand turn to go to the compound, she bumped the deceased Jason Lazarus on the right-hand side of the road and dragged him to the left-hand side and stopped some five meters away from the point of impact. The deceased grabbed onto the bumper bar and was caught under the vehicle as it came to a stop. All along the accused did not apply the brakes to stop the drag. The deceased was dragged out from under the vehicle and rushed to Gusap Health Centre but died shortly due a crushed chest. The manner in which the accused drove that vehicle was considered to be dangerous to the public which caused the death of Jason Lazarus.

4. The accused is married with four children who have since transferred to their father’s home in Wewak. She is unemployed and lives with some friends at Sankian village outside of Ramu township. Some amount of K10,000.00 was given to a policeman to hand over to the deceased’s family. The victim’s family maintains that that money went to repatriation and funeral costs and demand that an additional K50,000.00 be paid to them as proper compensation for the loss of their son.

Allocutus

5. During allocutus the accused asked for leniency and to be considered for probation, saying that she was worried for her four young children. Three of them are currently in Primary School with one at Elementary School. She apologized to the Court, the Police, CIS and apologized to the family of the deceased. She also told Court that she was suffering from a medical condition.

6. No prior convictions were recorded against the accused.

7. As to aggravating factors, death resulted as a result of the dangerous driving. As to mitigation factors, the accused co-operated with police and the courts, she has no prior convictions, she has diligently attended all court dates and not breached her bail conditions. Some form of compensation was paid, and she has expressed genuine remorse.

Defence Submissions

8. Counsel for the defence Mr Loloma submitted on your behalf that yours was not the worst type of dangerous driving causing death case and asked for a mid-range sentence of between 2-3 years with some suspensions. (Goli Golu and Ure Hane cited). Counsel Loloma submitted that the accident was partly caused by the deceased who came in front of the moving vehicle to pass his New Year’s greetings to the occupants of the vehicle the accused was driving. The Court was invited to take note of the welfare of your 4 children and that K10,000.00 was already paid as compensation. In your defence Mr Loloma invited the Court to observe the sentence imposed by this Court in an earlier case in Wewak. (State v Jerry Javigut (2015) N6016). In that case the prisoner was sentenced to 2 years, but his sentence was wholly suspended. Mr Loloma also pointed out to this Court that the accused’s suitability for probation was not recommended.

Prosecution Submissions

9. Mr Popeu submitted that a sentence of between 2 -3 years would be considered appropriate. He submitted that the K10,000.00 said to be paid by the accused to the deceased relatives as compensation was not correct. Such monies went towards funeral and repatriation costs and not compensation per se. The victim’s family are still grieving as no formal compensation and or reconciliation was performed to appease the situation. As a result, they are still demanding a proper compensation of K50,000.00 from the accused and her family. In the absence of some form of compensation the accused should not be allowed any suspension of sentence.

10. A pre-sentence report prepared on her behalf did not recommend her suitability for probation. All her personal particulars and other relevant information were captured in the report. She still insists that the deceased jumped into the running vehicle and caught her by surprise. She attained Grade 10 education and her husband has since resigned from Ramu Agri and returned home to East Sepik Province with their children.

Decision making process

11. As to what type of sentence should I impose for it to reflect the seriousness and gravity of this case, I first look at the question of whether your driving constitutes a danger. That test is an objective one. (R v Coventry [1938] HCA 31; 59 CLR 633l; McBride v The Queen [1966] HCA 22; (1966) 115 CLR 44 at 49-50 (Barwick CJ).
In this case I ask the question who caused the death of the deceased? The answer is very clear: You caused his death by driving a Toyota 10-seater vehicle. I ask the next question was the vehicle you were driving registered and insured? The answer to both question is a No. I ask another question where you in a clear state of mind at the time of driving the motor vehicle? The answer again is No, you were under the influence of alcohol, (intoxication). I ask another question can your driving be considered safe to the pedestrians using the road? The answer is No, you cut a corner in order to turn right.

12. In this case I do not regard your driving as reckless. You were driving at a safe speed. Rather the death in my view was caused by your inexperience coupled with driving under the influence of alcohol. And so, when you were faced with the deceased, whom you claim jumped in front of the vehicle, you panicked, lost control and due to your inexperience and intoxicated state of mind failed to apply the brakes. The deceased was caught under the vehicle you were travelling and dragged some 5-10 meters before it came to a stop. By then serious injuries had been caused to the deceased. Had you applied your brakes upon impact the injuries suffered by the deceased would be minimal and not fatal.

13. As regards the case of The State v Jerry Javigut (2015) N6016 the mitigation factors far out weigh the aggravating factors. In that case I found that the accident was unavoidable and was not one of deliberate risk taking. The prisoner pleaded guilty, paid a compensation of K20,000.00 immediately after the accident. The prisoner entered a guilty plea. Furthermore, I found for the prisoner that the victim partly contributed to the accident. In your case your aggravating factors far outweigh your mitigation factors. You were found guilty after trial. In the process the deceased’s family members were called to give evidence and relive the horror and pain they suffered. The prosecution machinery was necessitated at cost to the State to call its witnesses. To this end the case of The State v Jerry Javigut (supra) is distinguished.

14. Rather the case of State v Iparu [2005] N2995, 18/10/2005 befits your circumstances and so I will apply it in your situation. The prisoner pleaded guilty, was unlicenced, inexperienced and was driving under the influence of liquor- 4 deaths resulted. The prisoner was sentenced to 3 years.

15. As I understand from the sketch plan of the accident area, this evidence is showing to me that its highly likely that the deceased was not walking on the side of the road. Although he may be walking on the right-hand side of the road, he definitely was not walking on the safe foot path. According to the sketch map he was hit in the middle of the road along the right hand ‘T’ junction. In short, he was walking on the road and not on the side as claimed by witnesses. That would explain why when an inexperienced driver cut a corner to turn right the driver was faced with the deceased right in front of him. An experienced driver ideally would not cut corners but stay on his/her side of the lane, the left lane i.e., and safely negotiate the right-hand turn and avoid hitting the deceased. Be that as it may, most roads are designed for vehicles and not for humans. Pedestrians have designated sidewalks and foot paths. Although the accused maintained that the deceased was drunk and may have contributed to his death, this view was not supported by other evidence including the Autopsy findings. Her assumption is therefore a falsehood and unfounded. I find therefore that the deceased partly contributed to his death.

16. As to the accused’s fear and respect for the rule of law, this attribute is founded in the manner in which she regularly attended all court mentions in Madang. Furthermore, as I understood from her pre-sentence report her husband and four children have since returned to East Sepik Province leaving her behind in Ramu in compliance with her bail conditions and to have her day in court. It is fitting that I take that attribute in her mitigation.

17. Notwithstanding your concern for your young family, you are first time offender, the aggravating factors in your case far outweigh your mitigating factors. Due to the foregoing findings and conclusions, I am satisfied that a term of imprisonment for a short time is warranted as a form of personal and public deterrence.

18. As to the victim’s family demand for some formal compensation to be made to them beside the K10,000.00 already paid for funeral and repatriation costs, to appease their sorrow and loss to the tune of K50,000.00, the Court does have any jurisdiction to award such orders. The Court can only award a maximum K5,000 under The Criminal Law (Compensation) Act 1991. Might I add here in passing that the Courts are slow to award or even consider such huge compensation demands under this law.

19. You are therefore sentenced to serve a prison term of two (2) years from now. Your court bail of K1,000 will be refunded to you. Any pre trail custody periods available to you will be deducted.

20. Furthermore, you are disqualified from holding or obtaining a driver’s licence to operate a motor vehicle within a period of 3 years commencing today. A copy of this order shall be transmitted by the Assistant Registrar Madang National Court for transmission to the Commissioner of Police in Port Moresby.

21. Court Order

1. You are sentenced to serve a prison term of two (2) years from now, less any pretrial custody periods available to you. Your court bail of K1,000 will be refunded to you.
2. The whole of the sentence will be suspended on the following conditions
   1. That you enter into Probation for a period of 3 years and to be of good behaviour.
   2. That you pay a token compensation of K5, 000 to the victim’s immediate family members. Such compensation must be paid within six (6) weeks in default sentence.
      
3. That you are disqualified from holding or obtaining a driver’s licence to operate a motor vehicle in the country within a period of 3 years commencing today. A copy of this order shall be transmitted by the Assistant Registrar Madang National Court for transmission to the Commissioner of Police in Port Moresby.
   

Sentence accordingly.

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