State v Billy [2022] PGNC 97; N9554 (17 February 2022)

N9554

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 220 OF 2022

STATE

v

ROSCO BILLY

Alotau: Salika CJ
2022: 16^th & 17^th February

CRIMINAL LAW – Practice and Procedure – Charge of unlawful killing - Offence similar to offence under Section 528 – Dangerous driving causing death – Offence also chargeable under Sections 27 and 28 of the Small Craft Act of 2011.

Cases Cited:

State v Kanamon Sapou (2021) Unreported and Unnumbered decision of National Court.

Counsel:

Mr D Mark, for the State
Mr L Mamu, for the Prisoner

17^th February, 2022

1. SALIKA CJ: INTRODUCTION: The prisoner Rosco Billy pleaded guilty to one count of unlawfully killing of Don Wilson Kaisa, on offence under Section 302 of the Criminal Code Act.
   

BRIEF FACTS

2. The brief facts are:
   

“On 1^st of February, 2019, at 9.00 pm, Accused was operator of a dinghy travelling from Wedau to Vurawa village at high speed to drop off passengers. At that time, he was consuming alcohol and taking marijuana with fellow passengers.

Accused suddenly did a “U” turn of the outboard motor causing the passengers including deceased to fall overboard, while the dinghy sprung uncontrollable in circle without the operator. A search was conducted but the Deceased body was never recovered after the incident.

We alleged Accused Roscoe Billy unlawfully caused death of DON WILSON KAISA an offence contrary to Section 302 of the Criminal Code Act, Chapter No. 262.”

ISSUE

3. The issue for the Court to determine is the penalty to impose on the prisoner.
   

THE LAW

4. Section 302 of the Criminal Code Act reads:
   

“Section 302 MANSLAUGHTER

(1) A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, Imprisonment for a life.”

The maximum penalty for a person found guilty of manslaughter is life imprisonment.

5. I agree, with respect, with the submission of Mr Mamu, the counsel for the prisoner, where he submitted that this offence is likened to an offence under Section 528 (5) of the CCA of dangerous driving causing death which carries a maximum penalty of 5 years. In the present case, the prisoner admitted to operating the boat in a manner which exposed the life of the deceased and which action resulted in the deceased falling off the boat and ultimately drowning. This was not the usual type of manslaughter where violence is involved. It was an incident involving negligence and failure to take due care towards the safety of the deceased.
   
6. I am indebted to Mr Mamu for directing the Court’s attention to the Small Craft Act 2011 and more particularly to Sections 27 and 28 of that Act. Those provisions provide:
   

“27. OFFENCE TO OPERATE A SMALL CRAFT IN A RECKLESS, DANGEROUS OR CARELESS MANNER.

(1) A person who-

• (a) Operates a small craft in a reckless, dangerous or careless manner; or
  
• (b) Being the owner or captain of a small craft, allows the person to operate the craft in a reckless, dangerous or careless manner, is guilty of an offence.

Penalty: A fine not exceeding K100,000.00 or imprisonment for a term not exceeding two years, or both.

(2) Where a person is injured or dies as a result of the commission of an offence under Subsection (1), the penalty for the offence is a fine not exceeding K500,000.00 or imprisonment for a term not exceeding 10 years, or both.

28. OFFENCE TO OPERATE A SMALL CRAFT UNDER THE INFLUENCE OF INTOXICATION SUBSTANCES
    

(1) A person who-

(a) operates a small craft under the influence of alcohol, or a drug not taken for medical purposes; or

(b) being the owner or captain of a small craft, allows the person to operate the craft under the influence of alcohol, or a drug not taken for medical purposes; or

(c) being the captain or person in charge of or a crew member of a small craft during voyage, consumes or is under the influence of alcohol, or a drug not taken for medical purposes, is guilty of an offence.

Penalty: A fine not exceeding K100,000.00 or imprisonment for a term not exceeding two years, or both.

(2) Where a person is injured or dies as a result of the commission of an offence under Subsection (1), the penalty for the offence is a fine not exceeding K500,000.00 or imprisonment for a term not exceeding 10 years, or both.”

7. The Small Craft Act of 2011 defines commercial small craft as a small craft used or capable of being used at sea, which is used for hire, reward, or any commercial purpose, including carrying passengers or cargo for reward or commercial fishing. People operating such crafts must ensure that the persons in charge of the crafts must not consume intoxicating drinks or alcohol should not be consumed by captains of such crafts.
   

PERSONAL PARTICULARS

8. The following personal particulars are noted:
   
   • He is 40 years old.
   • Married with 4 children – has 5 dependents.
   • From Baiamai village, Rabaraba District, Alotau, Milne Bay Province.
   • He is also known as Okole Oko.
   • He was educated up to Grade 10 at Dogura High School.
     

MITIGATING FACTORS

9. The following mitigating factors are noted:
   
   • (a) First time offender.
   • (b) He pleaded guilty
   • (c) Expressed remorse.
   • (d) Co-operated with police.
   • (e) Early admission.
     

AGGRAVATING FACTORS

10. The following aggravating factors are taken into account:
    
    • He was drinking while driving the boat.
    • Failed to control his passengers to sit down.
    • Failed to stop his passengers to stop drinking.
    • Did not pay any attention to the safety of his passengers and himself.
    • As he was travelling in the night, failed to control his craft.
      

CONTRIBUTORY NEGLIGENCE

11. As this charge is likened to that of dangerous driving causing death, one factor that usually arises in dangerous driving causing death cases is the issue of contributory negligence on the part of the deceased. This issues usually arise in civil when damages are being assessed from motor vehicle accidents. In that regard, the estate of the deceased is at liberty to take out civil proceeding. In this case, the deceased was heavily drunk and lost balance. He flung into the sea and could not stay afloat. The deceased was so intoxicated that he could not swim and save himself. There is no evidence he could swim. Thus the more reason the captain of the small craft must be sober at all times when driving a motor vehicle or a motor operated boat or craft.
    
12. Being a passenger on a small craft or on a dinghy is different from being a passenger in a motor vehicle. First of all, a motor vehicle is different from a 23 feet banana boat or dinghy. Travelling as a passenger at sea is different from travelling as a passenger in a motor vehicle. Being a passenger in an open back PMV is different from being a passenger on an open back banana boat. The driver of a motor vehicle is seated in front. He sometimes does not know what his passengers at the back are doing. A small craft operator as in this case is usually operating the dinghy from the back. He has a good knowledge of what his passengers are doing who are seated in front of him inside the boat. In this case, the deceased was standing in the boat when the skipper lost control of the boat and did a U turn. It was the captain’s duty to tell the drunken passenger to sit down. It was also the captain’s duty to slow down the speed of the craft.
    
13. In a motor vehicle, if a driver looses control of the steering wheel, the motor vehicle will veer off the road and crash. For a motorized boat, the motor operating gear is the handle of the motor. If the skipper looses control of the handle, the boat will go around in a circle. I suspect this is what happened in this case. Being drunk himself, the skipper may have lost control and so he himself was thrown out off the boat into the sea, together with the deceased. He was able to keep afloat and save himself, while the deceased could not save himself and drowned.
    

CASE PRECEDENTS

14. Only one (1) case was cited by counsel and that is unreported and unnumbered case dealt in 2021 by Geita J in Madang in CR No. 1220 of 2021, The State v Kamanam Sapom. The captain of the craft was out drinking with his friends on a boat in the night off Kranget Island. At the same time a man was out fishing on a canoe. The captain of the motorized boat failed to see the fisherman in the dark and crashed into the fisherman’s canoe, throwing the man off his canoe and the man drowning. The prisoner in that case was sentenced to 10 years imprisonment.
    
15. The facts in that case and in this case are different but the consequences of their negligent acts are the same. The earlier case occurred at about 8.00 pm in the dark while this case occurred between 7.00 pm and 7.30 pm. It was starting to get dark. In this case, the captain was very drunk. In the earlier case, the captain was not very drunk. He just did not see the canoe in front of him with a man fishing. Both cases exhibit criminal negligence in my opinion. In the earlier case, the conduct of the captain may have amounted to ordinary criminal negligence and I find he was grossly negligent in that he did not slow down. He was speeding which he lost control of the steer as he was very drunk and the boat veered off into another direction.
    
16. Drivers, and captains of ships and small operating crafts are responsible for the lives of their respective passengers and for that reason, they have a high duty to ensure the safety of their passengers. In this case, the skipper failed to do that and failed to ensure and observe safety requirements. As a result, someone lost his life.
    
17. Considering all the circumstances of this case, the mitigating and aggravating factors, I sentence the prisoner to 10 years imprisonment with hard labour. He has been in custody for one year and three months. Those are taken off. The balance he is to serve is 8 years and 9 months in hard labour.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner