State v Ninesieng [2022] PGNC 469; N9930 (22 February 2022)

N9930

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 595 0F 2020
CR NO 596 0F 2020
CR NO 597 0F 2020

THE STATE

V

TOMMY NINESIENG
Prisoner

Tabubil: Sambua, A J
2022: 16^th 18^th & 22^nd February

CRIMINAL LAW – 1x count of dangerous driving causing death – 2x counts of dangerous driving causing grievous bodily harm – guilty plea on all three counts - no prior convictions - 4 years considered appropriate penalty for dangerous driving causing death - 2 years 6 months considered appropriate for dangerous driving cause grievous bodily harm – sentences to be served concurrent – pre-trial custody period to be deducted.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
John Kalabus v State [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38
State v John Banuk (No.2) [2014] N5757
State v Papen (No.2) (2009) N3639
State v Yosi [2016] N6348
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
Public Prosecutor v Kerua [1985] PNGLR 85

Text

Criminal Law and Practice in PNG 2^nd Edition
Criminal Justice (Sentences) Act 1986

Counsels

Mr A Kaipu, for the State
Miss R Mangi, for the Prisoner

DECISION ON SENTENCE

22^nd February, 2022

1. SAMBUA, AJ: The prisoner Tommy Ninesieng pleaded guilty to one count of dangerous driving causing death under section 328 (5) of the Criminal Code and two counts of dangerous driving causing grievous bodily harm also under section 328(5) of the Criminal Code.
   

The history of the case

2. The State alleged that on the 15^th of November 2018, on the morning, the prisoner was drinking with his friends while driving his motor vehicle, a white 4x4 Nissan Patrol registration number AGE-603. He had been drinking since 7 pm on the 14^th of November 2018. They had bought two Warrior alcoholic drinks and it finished around midnight.
   
3. So, around midnight from the 14^th to 15^th November 2018, the prisoner and his offsider picked up three girls and they went to the old Wangbin to buy more beer and cigarettes. After buying some more beer the prisoner drove at high speed to Mr. Maus Sharp Corner along the Tabubil/Kiunga Highway just outside the Tabubil township They sat and drank till dawn.
   
4. As the sun was rising, they decided to drive back and buy some more beer at Green Lodge. As they reached a creek and turned a corner downhill at high speed, the vehicle flipped and rolled few times throwing all seven occupants out of the vehicle.
   
5. The accident resulted in the death of Helen Alphonse Woks and serious injuries to Jessie Noipi and Marie Grace Tendiki.
   

The Law

6. 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

7. An examination of the body of Helen Alphonse Woks revealed an open crush injury to the right half of her head where the hemi section of her scalp was degloved with a traumatic open hemicraniectomy of the skull with extravasation of brain matters. Her face was also crushed and grossly defaced.
   
8. The rest of the body from the shoulder down to the lower limbs appeared intact but with minor bruises. She died at the scene of the accident as a result of the seriousness of the injuries she sustained to her head and face.

Antecedent Report

9. The prisoner is 50 years old. He is from Kobremin village, Telefomin in West Sepik Province. He is married and has a daughter and three sons. The daughter is 21 years old. His youngest son is 5 years old and stays at home with him while the two sons are doing grade 6 and grade 8.
   
10. The prisoner has four brothers and three sisters. His father is deceased but his mother is still alive. He attends the Baptist Church. He attended the St. Peters Primary School in Erima, Port Moresby and continued on to do his Secondary Education at De La Salle Secondary School at Bomana and then his tertiary education at Goroko Technical College in 1992 where he took Plumbing.
    
11. After completing his studies at Goroka Technical College he came and worked as an apprentice with the Ok Tedi Mining Limited at Tabubil in 1994. He then started working as a Process Plant Operator with the OK Tedi Mining Limited in 1997 until he resigned from that job on 20^th November 2018 as a result of the accident from which he is in Court today.
    
12. He has been living in Tabubil since 1997 and supports and takes care of his family and has been driving for about 20 years and the accident was his first.
    

Factors of Mitigation and Aggravation

Mitigating Factors

13. The Mitigating factors were that the prisoner pleaded guilty, thus saving the Court and the State time and resources in running a trial and has cooperated with the Police from the very beginning. The prisoner is a first-time offender, without any prior criminal record. The vehicle is a registered vehicle and he is a licenced driver and had paid compensation to the deceased relatives

Aggravating Factors

14. The Aggravating factors were that, a life has been lost and serious bodily injuries were sustained by two victims of DDCGBH. The offences are prevalent and the prisoner was intoxicated

Statement in Allocutus

15. In his statement in allocutus, the prisoner said sorry to the deceased and other passengers. He said that after the accident, K15,000.00 was paid as compensation to the deceased relative. He also sought mercy and leniency from the court with his sentence.

Submissions by Counsel

16. Miss Mangi submitted that the maximum penalty for the offence of Dangerous Driving Causing Death and Dangerous Driving Causing Grievous Bodily Harm is 5 years imprisonment term but it should be reserved for the worst type of cases. This case does not fall under the category of worst cases and the Court has the discretion to impose a sentence lower than the maximum penalty because the mitigating factors outweigh the aggravating factors.

17. She submitted that, the range of sentences for the offence of dangerous driving cause death are between 2 to 3 years while the offence of dangerous driving causing grievous bodily harm are 1 to 2 years depending on the circumstances of each case.

18. She submitted that in the present case, the prisoner never intended nor expected an accident to happen. In his 20 years of driving, he never encountered an accident and he never expected one to happen on that day. No one was forced into the vehicle he was driving but everybody wanted to have a good time, so they went around in the vehicle. However, the accident happened, and a life has been lost and two people have been injured and that is a guilt the prisoner will live with for the rest of his life.

19. The prisoner has expressed remorse and has apologised to the court and to his family, and the family of the victims for committing the offence. He has paid customary compensation to the family of the deceased in the sum of K 15, 000.00 to show his remorse for the life that has been lost.

20. He said that from the bottom of his heart and in the eyes of the Court, the family of the victims and those in the vehicle, he sincerely apologizes for what happened. His family contributed and they paid K15, 000 to the deceased family. For that he asked the Court to be merciful and lenient with his sentence.

21. In light of the mitigating factors and the aggravating factors, Miss Mangi submit that the court should consider the range of sentence between 2 to 3 years for the offense of dangerous driving causing death and 1 to 2 years for the offence of dangerous driving causing grievous bodily harm as the appropriate sentence given the circumstances of this case.

22. On the question of whether the sentence should be made concurrent or cumulative she submitted that the Supreme Court in the case of Public Prosecutor v Kerua [1985] PNGLR 85 set the principle of deciding whether sentences should be made concurrent or cumulative. It was also used in the case of State v Nepo [2016] N6178 (12 February 2016). The principles are:

1. 'Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.
2. Where the offences are different in character, or in relation to different victims, the sentence should normally be cumulative.
3. When a Court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate.
   

23. She submitted that all three counts were part of the same event so the one transaction rule should apply, hence the sentence ought to run concurrently.

24. Mr Kaipu on behalf of the State submitted that considering the aggravating and mitigating factors, the court should impose a sentence that would operate both as a personal deterrence to the prisoner and a general deterrence to the public at large. A sentence of two and half (2.5) years for count 1 is appropriate and a sentence of 12 months, respectively for counts two (2) and three (3) are appropriate.

25. Since there are three (3) victims, the sentence should be served cumulatively giving a total sentence of four and half (4.5) years.

26. Considering that this is not a worst instance of this offence and taking into account the Totality Principle, a sentence of three and half (3.5) years is appropriate to prevent a harsh and oppressive outcome for the prisoner.

27. Also, taking into consideration the prisoner's statement in allocutus and the compensation of Kl5,000.00 for the deceased victim, the State is of the view that this is a case where partial or wholly suspended sentence is appropriate.

28. Furthermore, as per the wishes of the surviving victims, Marie Grace Tendiki and Jessie Nolpi and their families, the State submitted as per section 5(1)(a) of the Criminal Law (Compensation) Act 1991 that compensation orders be made for personal injuries and related expenses.
Issue

29. The issue is what should be an appropriate penalty in the circumstances of this case.

30. I have heard submissions from both counsels and am grateful for their respective submissions that had greatly assisted me in arriving at the penalty I am about to impose on the prisoner.

31. The prisoner was convicted on 1 count of dangerous driving causing death and 2 counts of dangerous driving causing grievous bodily harm all laid under section 328(5) of the Criminal Code after his guilty plea.

32. 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.

33. 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.

34. This is an alcohol related dangerous driving causing death and dangerous drive causing grievous bodily harm case. In this case the prisoner was drinking alcohol with his friends on the previous day and continued on till the next morning when the accident happened.

35. I have considered his statement in allocatus for the Court’s mercy and to be lenient on his sentence. However, this is a case where alcohol is involved, and death resulted. Had alcohol was not involved and the continuous drinking from the previous day to the morning of the next day, death would not have resulted and the deceased would not have died. She would still be alife today. Her family and the loved ones would not be missing her.

36. 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.

37. However, the courts cannot impose hefty sentences because the maximum penalty prescribed by section 328(5) of the Criminal Code is a 5-years sentence. This is lenient and inadequate sentence for a loss of life, a precious gift from the creator and no one should take away that life so easily in whatever form or manner.

38. 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 sentences under section 302 of the Criminal code where the penalty is life imprisonment. Manslaughter cases are also considered as accidental deaths with no intention to cause death but death results anyway like in a motor vehicle accident.

39. 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”.

40. 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 and his friends who started drinking from the previous day and continued on till the next morning when the accident occurred, and a precious life of a young woman was lost and that lost life will not be brought back to life. It is lost forever.

41. The relatives may enjoy the payment of compensation, but the young girl’s life will not be brought back to life whereby she will enjoy the precious life given by the creator to its fullest.

Sentencing trend

42. I will consider the sentencing trends in recent history. The following are National Court sentences for Dangerous Driving Causing Death and Grievous Bodily Harm:

(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 were deducted for pre-sentence period and the balance of the sentence was fully suspended and the offender was placed on Good Behavior 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 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 wheel 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.

43. I note from the cases cited above that the sentence range for Dangerous Driving Causing Death is 2 to 3 years and generally the sentence range is 1 to 2 years on a plea of guilty and suspension of these periods have depended on peculiar circumstances of the matter and with conditions attached. However these sentences are not alcohol related like this case. Therefore will treat this case differently from the sentences from these cases.
44. 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.

45. 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 not demonstrated in this case with statistics or the increase in number of cases of alcohol related dangerous driving causing death sentences. The two lawyers did not help by referring to the alcohol related dangerous driving causing death sentences or it may be that most of these cases were being dealt with or processed in the summary courts and therefore there are no cases of alcohol related dangerous driving causing deaths sentences are reported in our recording system.

46. This is an alcohol related dangerous driving causing death case 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.

47. In this case the Medical Report on the deceased, showed that her face was also crushed and grossly defaced and one can only imagine that she died a horrific death.

48. Consequently, I consider a sentence of four (4) years is an appropriate penalty for dangerous driving causing death for count number 1 and a sentence of two and half years for count 2 and count 3.

Cumulative or Concurrent sentences

49. On the question of whether the sentence should be made concurrent or cumulative, the prisoner is charged with one count of dangerous driving causing death and 2 counts of dangerous driving causing grievous bodily arising out of the one and same motor vehicle accident.

50. The Supreme Court in the case of Public Prosecutor v Kerua [1985] PNGLR 85, which is a Waigani decision by Kidu CJ, Bredmeyer and McDermott JJ. This case involved the prisoners were charged with Murder - Wounding - Deprivation of liberty and question raised was whether the sentences should be cumulative or concurrent. It was held that in deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:

1. Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.
2. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.
3. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

51. In this case although there a three different victims, they are victims of the same motor vehicle accident therefore the sentences to be served concurrently. This means that the sentences for counts 2 and 3 are to be served with the sentence of four count 1.

52. I have also considered the favourable Pre-sentence report and that he has paid K15,000.00 as compensation to the victim’s relative and 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, therefore have decided against it. Hence the prisoner is to serve the four years sentence.

53. If the prisoner has spent any period in custody awaiting hearing of the case, 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.

54. This provision allows the court the discretion to decide whether or not 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, I have decided that, that period will be deducted from the head sentence of 4 years.

Order

55. The Court orders that:

1. Prisoner is sentenced to 4 years IHL for the count 1.

2. Prisoner is sentenced to 2 years & 6 months for count 2

3. Prisoner is sentenced to 2 years & 6 months for count 3

4. All 3 sentences are to be served concurrently.

5. His bail money shall be refunded

6. I recommend that if there was pre-trial custody period, that pre-trial custody period is deducted from the sentence of 4 years and he is to serve the balance
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused