State v Poki [2023] PGNC 122; N10241 (8 May 2023)

N10241

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 23 OF 2023

THE STATE

V

JEFF POKI

Ialibu: Miviri J
2023: 02^nd & 8^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Dangerous Driving Causing Death S328 (1) (2) (5) CCA – Early Plea – Compensation Paid – Bus Driven at High Speed – Evasive Action Late to Avoid – Pedestrian Deceased – Internal Injuries – Due Care & Attention – First Offender – Unblemished Good Character – Road Users Motorist/Pedestrians Protection – Prevalent Offence – strong deterrent sentence.

Facts:

Accused was the driver of a 25-seater Bus driven at high speed which did not stop hitting deceased who died from internal injuries.

Held

Plea
First Offender
Life lost
Due Care & Attention
Payment of Compensation
Protection of road users’ pedestrian/motorists
3 years IHL.
1-year IHL in jail.
2 years suspended on 2 years GBB.
Bail refunded forthwith.

Cases Cited:
Beraro v The State [1988-89] PNGLR 562
Kumbamong v State [2008] PGSC 51; SC1017
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91
R v Elly [1965] PGSC 56
Simbe v The State [1994] PNGLR 38
State v Yosi [2016] PGNC 160; N6348
State v Walia [2019] PGNC 328; N7961

Counsel:

P. Kagl, for the State
J. John, for the Defendant

SENTENCE

08^th May, 2023

1. MIVIRI J: Jeff Poki was the driver of a Toyota Coaster registered number P2873J on the highway between Walum Junction and Ialibu on the 10^th April 2021. He was driving at high speed when he came to a corner at Pilipiliailan where the deceased was. He tried to avoid by braking, but it was too late, he bumped Clara Pera with the bus in the middle. She died instantly and the bus carried her body for 10 meters. He did not stop and pursued to Ialibu. He was chased by the relatives of the deceased who apprehended him and gave him to the Police. She died from internal injuries as a direct result of being hit by that bus.
   
2. The medical report by Doctor Carolyn U Kema annexure to the affidavit of dated the 21^st April 2021, established that the body was viewed 14^th April 2021. She had died on the 10^th April 2021 at 4.00pm. Cause of death was cardiopulmonary Arrest, Severe Haemorrhage, and suspected Vascular injury. At Post-mortem She was 135cm in height. And had a blood-stained face and left external ear. The left eye was protruding and bulging and bruises on her abdominal wall. There were abrasions on her left knee.
   
3. There were multiple fracture of the ribs anteriorly from 1^st to the 6^th rib on the right. There was also fracture of the 1^st to the 5^th rib anteriorly on the left. The lungs were bruised and there was significant blood in the pericardial cavity. The heart was normal and there was minimal blood in the thoracic cavity bilaterally. The Doctor concluded that; “The type and severity of the injuries suggest causative mechanism to be that of significant direct blunt force exerted at high velocity typically associated with collision from moving vehicle/machinery.”
   
4. It is clear by this independent evidence that excessive speed was the material contributing factor to this death. In this regard it is upon the prisoner to have slowed down where people frequented areas, such as markets, residential areas, villages, generally areas where there were People bound to be around immediately by the roadside. Here the sketch in the Police Accident Report dated the 10^th April 2021, by police shows that the subject area immediate was a corner, or bend in the road. And there had been light rain. She was on the opposite side of the road. And materially at that time a blue Toyota five door land cruiser was coming from the opposite direction which blocked the view of the prisoner, Q 27 to 44 Record of Interview of Prisoner with Police dated 19^th April 2021. And in that period, she had run behind the passing five door land cruiser into the lane of the prisoner. He bumped her in the middle of the bus. Because he did not see her with the passing vehicle. He was on fourth gear doing 100kmph. He tried to brake to no avail because of the speed he was travelling. Even shifting to third gear was too late causing the bump into her. Realizing he did not stop but proceeded as he did followed by the relatives of the deceased to the Police Station. And he also reported to Kaupena Highway Patrol and surrendered himself to Police. It was a very new coaster 25-seater bus registered and current, used as a PMV. Except for the dent in the middle directly as a result of the accident, vehicle was not damaged nor was it in any way mechanically defective.
   
5. The prisoner was not a stranger to that particular location and the road having driven back and forth running the PMV. He was a first offender aged 38 years old at the time of this sentence. Originally from Beachwood village, in Imbongu Southern Highlands Province. He was married with two children aged 10 years old in Kaupena primary school grade 3, and another also in that same school grade 1. He was employed as the driver of the said bus earning his upkeep and family. And attended up to grade 12 at Ialibu Secondary School. But did not have that certificate issued by that school. Together with relatives and leaders they paid compensation with money and pigs to the relatives of the deceased valued at K 41, 000.00 in cash and 41 pigs held at Komoli village June 2021. Which was confirmed by the presentence report ordered tendered into court. With the Means assessment report. Father of the victim although dissatisfied with the compensation wanted peace and so maintained as an educated person.
   
6. He is a member of the PNG Bible Church. His village councillor describes him a quiet humble and a respectful person. And is cooperative and hard working. He is not a troublemaker in the village. It was out of character and given the description of the offence that I set out above was an accident. His sight was momentarily blocked by the on passing vehicle. And he has been very remorseful as to what happened both in court and in the report in presentence. He was law abiding until the offence. He earned his upkeep as a driver. The presentence report ordered recommends a part non-custodial term subject to the discretion of the Court.
   
7. What then is the appropriate sentence given all set out above?
   
8. It is my view that each case will draw its own sentence from its facts circumstances. And this is not inconsistent with Simbe v The State [1994] PGSC 18; [1994] PNGLR 38 (2 March 1994). Tariff and range are relevant matters for consideration, but each case will be worked out by its own peculiar facts and circumstances, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). This court in State v Yosi [2016] PGNC 160; N6348 (11 July 2016) imposed 3 years IHL but suspended what was remaining after the custodial period 1 year 7 months. And also ordered suspension of the driving licence of the prisoner for 1 year 6 months. In yet another case of State v Walia [2019] PGNC 328; N7961 (12 July 2019) driver fell asleep ran off the road bumped killing the passenger in it. It was a PMV as is the case here. But this is not a case where the driver has fallen asleep. This is a case where an on coming vehicle has obstructed temporary the views of the driver. And in that short space of time is faced with a pedestrian the deceased. Because of the speed he has not controlled successfully to avoid. It would not amount to the same consideration that were before these other cases. But in my view a sentence in the vicinity of three years is warranted. But it certainly will not be likened to the others set out above.
   
9. Because there are People and villages alongside the public highway here, it is upon motorists to ensure that they maintain a safe speed to avoid what was seen out here. Motor vehicles and the use of it has become prevalent and into the villages where our People are not educated, so that they are aware. It is necessary to avoid blockage of roads by angry people as a result of such an action as here. It is grave that Motorist exercise high discipline in ensuring safety of all travelling public, that both the pedestrian as well as the driver of a motor vehicle each in their way take care at all times. Because the law recognizes this fact at section 287 Duty of Persons in charge of dangerous things:
   

“(1) It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that in the absence of care or precaution in its use or management the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid that danger.

(2) A person on whom a duty is imposed by Subsection (1) shall be deemed to have caused any consequences that result to the life or health of any person by reason of any omission to perform that duty.”

10. So relevantly, “It has been established that negligence sufficient to meet the standard of civil liability is not enough to constitute a breach of Section 289; there must be negligence according to the standard of the criminal law, which may be described shortly as recklessness involving a grave moral guilt. Evgeniou v. Reg. 37 A.L.J. R 508, per McTiernan and Menzies, JJ. at p. 509. "He must be shown to have acted with such a reckless disregard for the lives and safety of others as to make his conduct a crime against the state and conduct deserving punishment." R. v. Bateman 19 App. R. 8 cited Owen, J. (ibid) page 513. Thus, a high degree of negligence must be proved by the Crown, and, of course, it is necessary that proof of criminal negligence should be established beyond reasonable doubt, R v Elly [1965] PGSC 56 (30 June 1965).
    
11. It would be more dangerous than the shooting where three shots were fired at birds in kunai grass in a swamp area between 6 and 6.30 pm from a public area in which a number of other people were present. The victim was bending over, setting a bandicoot trap when he was hit by the shots, Beraro v The State [1988] PGSC 7; [1988-89] PNGLR 562 (21 December 1989). The defence of accident was not applicable there. Here it was incumbent upon the driver that always safe to maintain a speed that will see avoid like situation as was the case here. And in the case of the pedestrian, it is always safe to be alert always when using the road as a walkway. And further it is upon villagers to build their houses and life at least 40 meters away from the road. And also, in many instances blockage of public highways have occurred. Compensation has been demanded payment forced upon other road users in many instances. This is hinderance to development because the public highway is frequently used to move freight support and logistics for various projects, mining business its infrastructure that are beneficial to the Nation and the People. It is therefore not a light matter between the driver and the deceased, and his line or extended family. This is not a situation where it must be lightly canvassed between the driver of the PMV and the deceased her people.
    
12. It must be set in line that where there is high criminal negligence, drink driving excessive speeding, mechanical defective vehicle, no lights bald tyres, generally vehicle not maintained so that its use will automatically be a danger to both the driver and to all who board it, including the pedestrian, than the charge should be one of Manslaughter pursuant to section 302 of the Criminal Code. Or alternatively any of the homicide charges which is open on the evidence for the Public Prosecutor to consider. Here I am considering a maximum of sentence of five (5) years where death has occurred. That is subject to exercise of discretion vested under section 19 of the Code.
    
13. In this regard compensation is right in its true spirit, to make peace and to ensure relationship sour by the crime is brought back so that, offender and community including the immediate relatives and people of the deceased see eye to eye, life is not set into ruins after the crime. It should never be a case of paying one’s way out of jail. Nor should it be the case that, the haves against the have nots, the former who can pay their way out of jail, the latter who bear the brunt of their actions. Custom and its practises here in the Southern Highlands must be the source of the payment of compensation. In this regard the kina is not the heart, pigs and the wealth in the society must be the source of compensation. It will have a lasting and lingering effect to normalize relationships. Disparity in sentence must be avoided. That has been done here evidenced by the presentence report.
    
14. This is the language of the criminal Law compensation Act 1991 section 5 (3) (b) that sets out compensation not to exceed K 5000 either as goods or cash or kind. It does not in my view pay out time that is due by the will of the legislature which prescribes five years imprisonment. Although here a 20-year-old woman lost her life to a speeding motorist who could not control a loaded 25-seater PMV Bus from hitting her. Braking to stop a vehicle at high speed at a corner saw what the witnesses saw. The vehicle swerved bumped her carrying her 10 meters dropping her with the tires going over her. He was on his side of the lane when this happened.
    
15. The highway is used both here by the motorists as well as the pedestrian. Motor vehicle parts will be replaced if damaged, no doubt whatever became damaged as a result of the accident will be replaced and maintained to new. That would not be the case of the 20-year-old young woman who has died. She will not come back to her parents or her loved ones. Here the maximum penalty prescribed is 5 years maximum by section 328 (5) of the Code.
    
16. In Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986) the court had this to say in, "suspension of sentence pursuant to section 19 (6) of the criminal code is, or maybe appropriate in three broad categories. The categories are not exhaustive (1) where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender; (2) Where suspension will promote the repayment or restitution of the Stolen money or goods; (3) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or health."
    
17. I am mindful that suspension will be part of the sentence not outright. Because I consider that the circumstances aggravating as well as the mitigating factors of the case that a just and proportionate sentence in your case would be 3 years IHL. Of which 1-year IHL will be served in jail. The offence is prevalent. Life is lived only once. A vehicle will have its parts replaced but not so the life of the deceased. The remaining 2 years will be suspended on a 2 years’ good behaviour bond. I do not make any order as to community work in view of the all set out above. Nor an order for suspension of the driving licence given all set out above.
    
18. The sentence is 3 years IHL for the crime of dangerous driving causing death contrary to section 328 (5) of the criminal Code upon Jeff Poki.
    
19. 1 year will be served in Jail and a warrant will be issued forthwith.
    
20. 2 years is fully suspended on a 2 years GBB.
    
21. Bail Money is ordered refunded forthwith.
    

Sentenced accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant