State v Afike [2022] PGNC 455; N9985 (9 June 2022)

N9985

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 568 0F 2021

THE STATE

V

LEON AFIKE

Prisoner
Popondetta: Sambua, AJ
2022: 1^st, 3^rd & 9^th June

CRIMINAL LAW – 1x count of dangerous driving causing death – guilty plea - no prior convictions – policeman – class1 license holder – driving a Toyota land cruiser without a valid license - 3 years sentence considered appropriate penalty for dangerous driving causing death – pre-trial custody period to be deducted.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
John Kalabus v State [1988] PNGLR
Lawrence Simbe v The State [1994] PNGLR 38
State v John Banuk (No.2) [2014] N5757
State v Papen (No.2) N3639 (21/05/09)
State v Yosi [2016] N6348 (11 July 2016)
State v Nepo [2016] N6178
State v Ondu [2014] N5747
State v Tobiyala [2016] N6417
State v Walia [2019] N7961
Public Prosecutor v Sima Kone [1979] PNGLR 294, SC158
Public Prosecutor v Kerua [1985] PNGLR 85

Text

Criminal Law and Practice in PNG 2^nd Edition

Criminal Justice (Sentences) Act 1986

Counsels
Mr R Luman & Mr N Pare, for the State
Mr E Yavisa & S Kuruwalo, for the Prisoner

DECISION ON SENTENCE

09^th June, 2022

1. SAMBUA, AJ: The prisoner Leon Afike pleaded guilty to one count of dangerous driving causing death under section 328 (5) of the Criminal Code.
   

The history of the case

2. The prisoner Leon Afike was a Police Constable based at Popondetta Police Station and was attached to the Prosecutions Section. It was alleged that between 4.00 p.m. and 5.00 p.m. on the afternoon of Saturday 30^th November 2019, the prisoner whilst under the influence of alcohol drove a motor vehicle namely a Toyota Land Cruiser, Ten-Seater, brown in colour, bearing registration number HAP 143 from Kakandetta village into Popondetta town along the Killerton Road with two other passengers onboard the said motor vehicle.
   
3. The prisoner was driving recklessly and dangerously at high speed and as he was driving past the Independence Oval, the prisoner bumped the deceased Solomon Kone causing the deceased to land on the roadside some 3 metres away from the point of impact and hit his head on the cement drain adjoining the Independence Oval. The deceased died soon thereafter from injuries sustained. After bumping the deceased, the prisoner did not stop but continued to drive on and was chased by Correctional Service ("CS") officers in a CS vehicle. He was eventually apprehended and charged with dangerous driving causing death.
   

The Law

4. Section 328 (1) of the Criminal Code states:

(2) A person who drives a motor vehicle on the road or in a public place dangerously is guilty of a misdemeanour.

Penalty: Subject to the succeeding provisions of this section-

On summary conviction- a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.

On conviction on indictment-a fine not exceeding K1, 000.00 or imprisonment for a term not exceeding two years, or both.

(5) If the offender causes the death of a person of or grievous bodily harm to another person, he is liable on conviction on indictment to imprisonment for a term not exceeding five years.’

(Emphasis added)

The Autopsy Report

5. An autopsy was conducted by Dr Philip Golpak at the Popondetta General Hospital on the 20^th of November 2019. During the autopsy Dr Golpak noted the following injuries to the deceased Solomon Kone:
   
   1. Swollen left forearm
   2. Face was swollen
   100. Eyes were black
   4. Defuse bilateral subdural haemorrhage
      

and therefore concluded that the cause of death was Defuse Subdural Haemorrhage due to Motor Vehicle Impact.

Personal Particulars

6. The prisoner is 30 years old, and he is married with 2 children who are between the ages of 1 and 5 years old. He hails from Pakmong village in Mu-Buyer District in Western Highlands Province. He comes from a family of 7 siblings. He is the second born in the family. His parents are still alive. All other siblings are still in school except his brother Vania Afike and himself are Police Officers serving here in Popondetta. He joined the Police Force in 2014 and Popondetta is his first posting and was attached to the prosecutions section. He is the only bread winner to his family. He attends Pentecostal Church. He has no prior conviction
   

Factors of Mitigation and Aggravation

Mitigating Factors

7. The following are factors in mitigation in favour of the prisoner which included that:

1. The prisoner pleaded guilty to the charge which saved the courts time

and resources

2. The prisoner is a first-time offender
   

Aggravating Factors

8. The following are aggravating factors not in favour of the prisoner which included that:

1. The prisoner is a policeman.
2. The prisoner unlawfully drove the vehicle (He only had a class 1 licence and not a Class 6 Licence);

100. The prisoner was under the influence of alcohol.

4. The prisoner bumped the deceased and killed him.
5. The prisoner drove the vehicle on a high speed without due care and attention.
6. There was no form of genuine remorse and
7. The prevalence of this offence in the community and PNG.
   

Statement in Allocutus

9. In his statement in allocatus, the prisoner stated that he is a Police Officer attached to the Prosecution Section of the Royal Papua New Guinea Constabulary in Popondetta Oro Province. He has served the Police Force for eight (8) years until the accident. He stated that it was not his intention, but an accident and a life was lost and he sympathised with the family for their loss. He further stated that he had made attempts to pay compensation of K12,000.00 to the family of the deceased but the family of the deceased did not want to receive any compensation payment. He stated that he is married with 2 children. And sought mercy of the court to be lenient on him when sentencing him.
   

Submissions by Counsels

10. Mr Yavisa submitted that the maximum penalty for the offence of Dangerous Driving Causing Death is 5 years imprisonment but it should be reserved for the worst type of cases. This case does not fall under the category of worst case and the Court has the discretion to impose a sentence lower than the maximum penalty: Goli Golu v The state [1979] PNGLR 653, Ure Hane v The State [1984] PNGLR 105, Avia Aihi v. The state (No. 3) [1982] PNGLR 92.
    
11. He further submitted that in determining an appropriate sentence, the first issue to determine is whether the maximum is warranted. In this case, although a life has been lost, clearly it is not a worst kind of reckless and grossly/careless accident which automatically attracts the maximum sentence.
    
12. He also submitted that sentencing is not an exact science. It is a discretionary process and discretion must be exercised according to the recognized principles of law: per Canning J in State v Alphonse Polpolio & Jeffery Baru (2006) CR 701 & 865 of2006.
    
13. In State v Philip Samson [2016] N6347 (Auka, AJ) said:
    

"The maximum punishment for this offence is 5 years imprisonment. The Court has a general discretion to impose a lesser sentence with or without other forms of punishment enumerated in S. 19 of the Criminal Code. In addition it is open to the Court to order that the offender be disqualified from holding a driver's licence pursuant to S. 330 (2) (a) of the Code”

14. The following factors must be considered in the decision on penalty. The aggravating factors obviously would include that a life has been lost and the prevalence of the offence. On the other hand, time and resources which would have been used up and expended in conducting a trial. In his allocutus, he has shown remorse and apologised to the deceased and his family and relatives. He is a first-time offender. He has shown willingness to pay compensation to the deceased family with K12, 000.00 and a pig.
    
15. He submitted that in State v Richard Faringuma [2021] N9096, the prisoner drove a vehicle so dangerously along a public highway between Waromo and Lido villages in Vanimo West Sepik Province and bumped the deceased Severinus Moyas thereby causing his death. At the initial time it was alleged that the prisoner was drunk. He paid a compensation of K5, 000.00. Considering his Pre-sentence Report, the prisoner was sentenced to 3 years imprisonment, and after deducting his pre-trial custody, the whole of the balance was suspended with conditions.
    
16. He also submitted that in State v. Joseph Kalasim CR 1405 of 2014, an Unreported Judgment dated 17^th September 2015, on a plea of guilty to DDCD, Geita J imposed a sentence of 2 years which was wholly suspended with conditions. In addition, the Court ordered that accused be disqualified from holding a driver’s licence for 3 years.
    
17. He also submitted that in the case of State v. Kupa Nepo (2016) N6178, the accused pleaded guilty to Dangerous Driving Causing two (2) Deaths. The deceased were his passengers. At the time he was not under the influence of liquor. His Honour Cannings J imposed 30 months each for the 2 deaths, hence, a total of 5 years imprisonment, which was wholly suspended with conditions. In addition, the Court ordered that accused be disqualified from holding or obtaining driver's Licence for a period of sentence pursuant to s.330 (2) (a) of the Criminal Code.
    
18. Therefore submitted that on the basis of the foregoing reasons and considering that the mitigating factors and the aggravating factors carry the same weight, a sentence of 2 years be imposed subject to the court’s discretion under Section 19 of the Criminal Code. And that the penalty be wholly suspended with strict conditions as the Pre-Sentence Report speaks for the Prisoner. The Pre- Sentence Report recommends that he is a suitable candidate for probation and therefore a suspended sentence with strict conditions will complement the Pre-Sentence Report recommendation ashe has served the Police for 8 years without any disciplinary records. And most importantly, during his career as a Police prosecution, he has not been involved or been charged with an offence summarily or criminally. And therefore sought the following Orders that the prisoner be given a sentence of 2 years; and the 3-weeks pre-custodial period spent at the Popondetta Police Station be deducted and the balance be wholly suspended, and he placed on good behaviour bond with conditions.
    
19. Mr Pare on behalf of the State submitted that it is trite law that the maximum penalty should be reserved for the most serious instances of an offense: Goli Golu v The State [19791 PNGLR 653.
    
20. He also submitted that in Lawrence Simbe v The State [19941 PNGLR 38 and in the case of State v Sovou (1998) N1961 a decision by Sakora, J, it was held that each case is determined on its own peculiar facts and circumstances. Furthermore the court has a wide discretion under section 19 of the Criminal Code Act in determining the proper sentence as each case and the circumstances warrant.
    
21. In exercising the sentencing discretion, in Lialu v The State [1990] PNGLR 487 the Supreme Court (per Kapi DCJ) held that:

"This exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear, and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles".

22. In his submission on penalty, Mr Pare referred a number of cases for purposes of comparation. Those cases include:
    
    1. The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165, Supreme Court held that "to assure the public conscience that the Law in the circumstances prevailing in Papua will demonstrate an element of retribution. " Sentences of detention will be applicable in cases of dangerous driving causing death.
       
    2. The Public Prosecutor v Sima Kone [1979] PNGLR 294, the Supreme Court held that "the most exceptional 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"
       
    100. The State v Joe Kalasim; CR 1405 of 2014 (Unreported Judgement per Geita J): The offender, a policeman, pleaded guilty to dangerous driving causing death of a young man who was standing at the roadside. He was sentenced to 2 years' imprisonment.
         
    4. The State v Maliko [2018] PGNC 486; N7606. The prisoner pleaded guilty to one count of dangerous driving causing death. He was driving a police vehicle continuously for three consecutive 8 hours shifts when he hit an old lady who was crossing the road. The deceased crossed the road and was in the middle of the road but few seconds of undecidedness to turn back and got hit by the prisoner's vehicle. The court held that the prisoner voluntarily surrounded to the police, paid a K20, 000 compensations and was not a criminal and so he was sentenced to 3 years, His licence was cancelled and prisoner to serve 1 year of his sentence in custody and the rest to be wholly suspended and 2 years to be on good behaviour bond.
       
23. He therefore submitted that in consideration of the circumstances surrounding this case and the case authorities put forth, this is not a worst type of case that requires the imposition of maximum penalty but a term of imprisonment would be appropriate in this case.
    
24. He submitted that this case is more serious in the sense that it involves a policeman who knows the law very well. The prisoner has failed to comply with the traffic rules, that is not to drink and drive, speeding and driving recklessly. Furthermore, he was not supposed to have driven that motor vehicle as he only has a class 1 license. Only persons with class 6 license were permitted to drive land cruiser vehicles. The level of criminal culpability is very high in this case.
    
25. At the time of the incident, there were no other vehicles on the road except the vehicle he was driving on that road and the deceased who was at the side of the road, where he failed to exercise the duty of care when he was under the influence of alcohol, speeding and bumping the deceased who died as a result of being bumped by that motor vehicle driven by the prisoner.
    
26. Also, despite the fact that he said it was an accident in his allocatus, he never said or showed genuine remorse towards the deceased and the deceased's family or apologize to them. The court should also be mindful that he said he had made attempts to compensate K 12, 000. 00 and a pig but compensation is not a form of punishment to stop the prisoner from going to jail.
    
27. Mr Pare further submitted that though the pre-sentence report is favourable to the prisoner for a suspended sentence, the court should also take into consideration the views of the deceased's family and community that an innocent life has been taken, and that the prisoner’s punishment will be an example for other policemen who breaks the law. The aggravating factors outweighs the mitigating factors and further that there is a need for a deterrent sentence for every offender who commit such offences, particularly police officers who are well vested with the law.
    
28. The State therefore submitted for a head sentence of 3 to 4 years as the starting point with no suspension but subject to your Honour’s discretion under section 19 of the Criminal Code, Chapter 262 and in addition, submitted for the absolute cancellation of the driver's license under section 330 (2) (a) to operate a motor vehicle.

Issue

The issue is, what should be an appropriate penalty in the circumstances of this case?

29. I have heard submissions from both counsels and am grateful for their respective submissions that had greatly assisted me in arriving at penalty I am about to impose on the prisoner.
    
30. The prisoner was convicted on 1 count of dangerous driving causing death laid pursuant to section 328(5) of the Criminal Code after his guilty plea.
    
31. The Supreme Court in Goli Golu v The State [1979] PNGLR 653 and John Kalabus v State [1988] PNGLR 193 stated that the maximum penalty should be reserved for the worst type of cases.
    
32. The Supreme Court in Lawrence Simbe v The State [1994] PNGLR 38, held that each case is to be determined on its own peculiar facts and circumstances.
    
33. This is an alcohol related dangerous driving causing death. In this case the prisoner after drinking alcohol at Kakandetta village in the out sketch of Popondetta town and was driving along the Killerton road in Popondetta town when the accident happened.
    
34. I have considered his statement in allocatus for the Court’s mercy and to be lenient on him with his sentence. However, this is a case where alcohol is involved, and death resulted. Had alcohol was not involved, death would not have resulted, and the deceased would not have died. He would still be alive today. His family and his loved ones would not be missing him.
    
35. Alcohol related dangerous driving causing death is now a common occurrence in the country and the courts should take a serious stance on these cases and impose hefty sentences for dangerous driving causing death.
    
36. However, the courts cannot impose hefty sentences because the maximum penalty prescribed by section 328(5) of the Criminal Code is a 5-year sentence. This is lenient and inadequate sentence for a loss of life, a precious gift from the creator and no one should or has a right to take away that life so easily in whatever form or manner.
    
37. I am of the view that it is about time Parliament review the penalty provision to increase the sentence for dangerous driving causing death under section 328(5) of the Criminal Code similar to that of manslaughter sentence under section 302 of the Criminal code where the penalty is life imprisonment. Manslaughter cases are also accidental deaths with no intention to cause death but death results anyway like in this case in a motor vehicle accident.
    
38. In the case of State v John Banuk (No.2) [2014] N5757 (18 August 2014), a Kokopo decision by late Lenalia, J (as he then was) whereby he stated:
    

“26. ...........that the sanctity and value of a human life is very precious and values more than any wealth the world can offer and as such, it must be given prominence and ought to be protected at all costs by the Courts. That is why the Parliament fixed the maximum penalty of life imprisonment for the offence of manslaughter.

.............a life has been lost forever. No money, remorse or compensation will assist to resurrect the victim's life”.

39. This summation by late Justice Lenalia is relevant and applicable to this case and I adopt it in this judgment. Compensation will not restore human life. Once it’s been lost in a reckless and careless way like in this case, where the prisoner a policeman who should have known better and failed to comply with the traffic rules that is not to drink and drive and was speeding and driving recklessly. And in addition, he was illegally driving that motor vehicle as he only has a class 1 driver’s license. Only persons with class 6 driver’s license are permitted to drive land cruiser vehicles.
    
40. And for him as a Policeman, the level of criminal culpability is very high in this case. At that time of the incident, there were no other vehicles on the road except the vehicle he was driving. He bumped the deceased who was at the side of the road when he failed to exercise due care and attention and was under the influence of alcohol and was speeding.
    
41. Furthermore, no compensation will restore the life that has been tragically lost because of the prisoner’s reckless and careless attitude of driving a motor vehicle under the influence of alcohol dangerously The relatives may enjoy the payment of compensation, but victim/deceased’s life will not be brought back to life whereby he will enjoy the precious life given by the creator to its fullest.
    

Sentencing trend

42. I consider the sentencing trends in recent cases. The following are National Court sentences for Dangerous Driving Causing Death:

(a) State v Papen (No.2) N3639 (21/05/09) –The offender was convicted of 3 charges, Dangerous Driving Causing Death, Dangerous Driving Causing Grievous Bodily Harm and Unlawful Use of Motor Vehicle. 3 years was imposed for DDCD, 2 years for DDCGBH and 1 year for UUMV all to be served concurrently. Pre-Trial Custody period of 1 year 2 months was deducted so balance of 1 year 9 months and 28 days to be served IHL.

(b)State v Yosi [2016] N6348 (11 July 2016) – This is a Mendi case and it was presided over by late Justice Ipang in 2016. This is a case where the offender pleaded guilty to one count of DDCD pursuant to section 328 (2) and (5) of the Code.

Briefly in that case, the accused pleaded guilty that he drove a Toyota Land Cruiser and bumped into a packed PMV bus parked on the side of the road. The deceased who was under the PMV bus fixing a flat tyre was consequently killed.

A sentence of 3 years was imposed. 1 year and 7 months was deducted for pre-sentence period and the balance of the sentence was fully suspended and the offender was placed on Good Behaviour Bond. The Court also made further orders that he is disqualified from holding a driver’s license for the duration of 1 year and 5 months.

(c) State v Nepo [2016] N6178 (12 February 2016) – This is a Madang matter. His Honor Justice Cannings presided over in that case where the offender pleaded guilty to 2 counts of DDCD. It was alleged that the offender dangerously drove a vehicle, resulting in the death of 2 of his passengers.

A head sentence of 30 months was imposed for each offence. As there were two separated victims the sentences were served cumulatively. There was no deduction under the totality principle. The total sentence was 5 years imprisonment, all of which was suspended on conditions, including that there be further reconciliation with the deceased’s relatives, including modest compensation.

In addition, the Court ordered under section 330 (2) (a) of the Criminal Code that the offender be disqualified from holding or obtaining a driver’s license for the period of the sentence.

(d) State v Ondu [2014] N5747 (19 September 2014) – This is a Mendi case presided over by Kassman J in a case involving a charge of DDCD for the death of three men under s. 328 (2) and (5) of the Criminal Code.

The Court imposed a custodial sentence of 3 years for each of the three counts. The sentences were to be served concurrently. The Court emphasized that speed was the major cause of the motor vehicle incident that resulted in the death of 3 innocent men.

(e) State v Tobiyala [2016] N6417 (9 July 2016) – This is a Alotau case which Toliken J presided over. The case involved a female accused and the matter was contested, and the offender was found guilty after a trial. The deceased child was attempting to cross over to the other side of the road to get to an elementary school which he was attending. That morning, he was walking to school with his two older brothers. The child was rushed in a taxi to the Alotau General Hospital but was pronounced dead on arrival. The Court imposed a notional head sentence of 2 ½ years’ imprisonment. For the unlawful and extra-judicial harassment and intimidation of the prisoner resulting in unnecessary trauma, 6 months were deducted. The Court exercised his discretion and suspended 1 year. The Offender was ordered to serve 1 year in custody at Giligili Correctional Institution.

(f) State v Walia [2019] N7961 (12 July 2019) – This is another Alotau case presided over by Toliken J which is more recent. In that case the offender was an unlicensed driver. The prisoner was driving a PMV truck along the East Cape Highway, at high speed to drop off the deceased at his village. As they were passing another 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 tree. The impact of the collision was on the right side of the truck where the deceased was sitting. The deceased died as a result.

A sentence of 2 years and 6 months was imposed which were fully suspended and he was placed on Probation for 2 years. He was further ordered to perform 120 hours of Unpaid Community Service

48. I note from the cases above that the sentence range for Dangerous Driving Causing Death is 2 to 3 years on a plea of guilty and suspension of these periods have depended on the peculiar circumstances of the matter and with conditions attached. However these sentences are not alcohol related like in this case. Therefore will treat this case differently from the sentences from these cases mentioned hereabove.

49. In Public Prosecutor v Sima Kone [1979] PNGLR 294, SC158, Waigani

Prentice CJ Saldanha Greville Smith JJ

The driver of a motor vehicle whilst under the influence of alcohol and driving at considerable speed collided with two trees and as a result both his son and wife who were passengers in the vehicle were killed. On a plea of guilty, the trial judge read to the accused the depositions and sought his acknowledgement to each relevant fact, and then placed him on recognizance to be of good behaviour for two years stipulating that during that time the accused should spend ten days each month in the service of the occupational therapy patients at Port Moresby Hospital.

On appeal against inadequacy of sentence, it was held

In sentencing offenders on charges of dangerous driving causing death, only in the most exceptional of cases may the necessity for public deterrence against the offence be overridden by the circumstances of a particular case, to the extent that the offender is not sentenced to a term of imprisonment.

Where multiple deaths occur from dangerous driving, that may be considered as a factor in sentencing.

In the circumstances the recognizance (with postponement of sentence) was quite inappropriate and a sentence of imprisonment with hard labour for eighteen months should be substituted.

49. This case was decided in 1979 some 43 years ago and the sentencing trend has changed and increased in alcohol related dangerous driving causing death although it is not demonstrated in this case with statistics on the increase in number of alcohol related dangerous driving causing death sentences.

50. This is an alcohol related dangerous driving causing death case and a Police officer is involved and therefore I consider it to fall into the worse category of dangerous driving causing death cases and will attract a sentence higher than the sentences imposed in the cases referred to by counsels and the cases I have cited hereabove.

51. In this case the Medical Report on the deceased by Dr Philip Golpak at the Popondetta General Hospital 20^th of November 2019 noted the following injuries to the deceased Solomon Kone:

1. Swollen left forearm
2. Face was swollen

100. Eyes were black

4. Defuse bilateral subdural haemorrhage
   

and therefore concluded that the cause of death was Defuse Subdural Haemorrhage due to Motor Vehicle Impact.

52. Consequently, I consider a sentence of three (3) years is an appropriate penalty in this case and sentence the prisoner to three (3) years in hard labour.

53. I have also considered the favourable Pre-sentence report and have considered whether I should suspend part of the sentence. I am of the view that if I suspend part or the whole sentence, I will be condoning such reckless and careless attitudes of drunken drivers and especially Police officers like in this case and therefore have decided against it. Hence the prisoner is to serve the full three years sentence.

54. The prisoner has spent three (3) weeks at the Popondetta Police cell before being released on bail. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.
55. This provision allows the court discretion to decide whether to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted. However, in the exercise of my discretion, that period will be deducted from the head sentence.

Order

1. Prisoner is sentenced to three years IHL.

2. Pre – trial custody of 3-weeks spent at the Popondetta Police Station to be deducted from the head sentence of 3 years.

3. To serve two years, 11 months & 1 week

4. His bail money shall be refunded forthwith

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