State v Sui [2023] PGNC 125; N10246 (10 May 2023)

N10246

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 240 OF 2023

THE STATE

V

ISSAC SUI

Ialibu: Miviri J
2023: 04^th & 10^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Dangerous Driving Causing Death S328 (1) (2) (5) CCA – Early Plea – Compensation Paid – Police Vehicle on Duties – PMV Bus Parked in Front – Pedestrian Running From Back of Onto Lane – Into On Coming Police Vehicle – Duty Of Care – First Offender – Unblemished Good Character – Road Users Motorist/Pedestrians Protection – Prevalent Offence – strong deterrent sentence.

Facts
Accused was the driver of a Police vehicle driven at high speed pursing report of a crime bumped deceased child who ran out of the back of a parked 15 seater Bus.

Held
Plea
First Offender
Life lost
View Blocked by Parked Bus.
Police pursuit of criminal report.
Payment of Compensation
Protection of road users pedestrian/motorists
2 years IHL fully suspended on 2 years Probation Order on conditions

Cases Cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Gamoga v The State [1981] PNGLR 443
Kumbamong v State [2008] PGSC 51; SC1017
Mulas-v- Regina [1969-70] PNGLR 1
Public Prosecutor v Bruce Tardrew [1986] PNGLR 91
Simbe v The State [1994] PNGLR 38
State v Nepo [2016] PGNC 10; N6178
State v Yosi [2016] PGNC 160; N6348

Counsel:

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

SENTENCE

10^th May 2023

1. MIVIRI J: Issac Sui is a policeman who was the driver of the police vehicle Toyota Land cruiser Troop Carrier registered number HAX 507 on the highway between Ialibu and Walum on the 26^th May 2022 at about 5.30pm. Whilst approaching the Ialibu High School a crowd had gathered on both sides of the road. There was also a 15-seater PMV Toyota Hiace bus parked and stationary in the oncoming direction towards Ialibu. When he approached the crossing at the school, a child ran from behind the stationary bus and onto his lane. He hit the child who fell to the tar of the lane and was instantly killed. He surrendered to Police, was arrested charged with dangerous driving causing death pursuant to section 328 (1) (2) & (5) of the Criminal Code.
   
2. He pleaded guilty to the Indictment pursuant to section 328(1) (2) & (5) as presented. And the facts are set out above. He is liable as a result of that conviction to imprisonment for 5 years. That is the maximum due him. It is a discretion on the application of section 19 after consideration of all relevant aggravating, as well as mitigating, and any extenuating circumstances. And the consideration of section 19 (6) is glossed out in Public Prosecutor v Bruce Tardrew [1986] PGSC 10 [1986] PNGLR 91 (2 April 1986) where it was held, "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."
   
3. So, for our purposes here the offender can have part of his sentence suspended where it will promote deterrence of the criminal conduct for which he is convicted and any other similar. Further it gives an option for him to reform or rehabilitate for the better. And that imprisonment will cause excessive suffering because of the health of the prisoner. The facts here are that the prisoner was a policeman driving a police vehicle at that speed to attend to car theft that was reported to Police. And he was commanded by his superiors from the Eastern end command, Senior Inspector Philip Kumo, and Imbongu Police Station Commander Sergeant Paul Wasingo to attend immediately as the crime was in progress at Iombi village involving villagers who took a vehicle belonging to the member for Imbongu Honourable Pila Ninigi MP. He was therefore speeding to get there as quickly to stop what was happening there. It was a criminal offence taking place. Given it was a police emergency report attended to in the course of which the child ran out from behind the parked bus onto his lane where he bumped her killing her as she hit the coal tar.
   
4. The police road traffic accident report dated the 26^th May 2022 shows that the road is straight and then runs into a bend ahead. There is a school crossing ahead which will alert drivers to slow down because of that fact. Here from the evidence of Constable Andrew Kino of Traffic Section Mendi Police Station dated 30^th May 2022, “Whilst the deceased was there, a 15-seater Toyota Hiace bus came and stopped at the left side of the lane facing Ialibu dropping off passengers. Whilst the bus was still there the Imbonggu Police vehicle travelled towards Walume way. When the police vehicle was about to approach the bus, the first kid coming out of the back of the bus and ran across the road towards the school gate. The deceased also came at the back of the bus and tried to run crossing the road following the other kid. When he started to run, he met with the police vehicle travelling down, ran into the vehicle bumper which hit the head of the deceased killing him dead instantly.”
   
5. The autopsy report by Doctor Carolyn U Kema MOIC Ialibu District Hospital dated the 30^th May 2022 set out the cause of death as, “time of death was the 26^th May 2022 between 17 00 hrs and 1800hrs. Place of death was Kuli village Ialibu. Cause of death direct cause: Cardiac Respiratory Failure. Antecedent causes; (a) Severe Traumatic Head Injury. (b) Depressed Skull fracture....Compound Fracture to the right lower leg and dislocation of the right ankle.” And she confirmed in her medical certificate of death attached.
   
6. In the record of interview, Question 13, he explained that the bus was parked on his lane and he tooted his horn as he saw the first boy run across the road. And then the second ran onto the bumper of his police vehicle and dying as a result after being hit on it. He was on police duties particulars as set out above. He was not drunk and was a driver for 8 years prior to the accident. He held a class six licence. And the weather was fine. It was between 5.30pm and 6.00pm when he was driving through that section of the road and in the police vehicle were four other policemen including off sider and Officer In Charge Sergeant Wasingo. He had his leg on the brake and tooted the horn but to no avail to stop the first boy, then the deceased appeared following the first boy causing the accident.
   
7. This was therefore speeding that was prompted by his call of duty as a policeman. Because in the vehicle was his immediate supervisor officer in charge Sergeant Wasingo and four other policeman they were intent on attending to the criminal complaint that was made commanded by the commander of the Eastern End Senior Inspector Philip Kumo on the vehicle as the crime was in progress at Iombi village involving villagers who took a vehicle belonging to the member for Imbongu Honourable Pila Ninigi MP.
   
8. In my view the speeding is not for the sake of speeding and its enjoyment but for duties that are called out as a Policeman. And it was unfortunate that the deceased child ran onto the road. Because there was a balance between what was reported as a crime and happening. Hence it was incumbent on his call of duty to take policemen to the scene to stop what was happening. And here children being what they are do not heed danger and appreciate common sense as would an adult. Seeing the friend run successfully across the road and on coming traffic, deceased opted to take that to his detriment and demise. It is not entirely the fault of the prisoner that deceased died. Yes, it was a public frequented area but whereas here there is a call to duty as a Policeman, crime in progress must be stopped for obvious reasons as to its effects on the People effected. Here a car theft was reported and before any damage or any other illegal activity takes place it must be stopped. That was what was the circumstances here upon the prisoner driver.
   
9. His speeding will not be as same as that of the State v Jeff Poki Cr 23 of 2023 sentenced to 3 years IHL. I year was in jail and 2 years was suspended on a 2 years GBB. That was a PMV driver speeding a public frequented area with an oncoming Toyota land cruiser five door on the opposite lane that prevented. The speeding here was to make money or of a PMV. In comparison this speeding is of Policeman by their call of duty responding to a crime in progress. It was therefore important to get as quickly as possible to the site of the crime in progress. And that is evident by the Officer in Charge Sergeant Wasingo with the other four policemen on board.
   
10. Any criminal sanction by section 328 (5) must take account and give a balance between speeding that is necessary because of the call of duty, and that which is for pure pleasure and enjoyment, and for profit or gain, in passing an appropriate sentence. Life is lived once and will not come back because of the criminal penalty prescribed. But it must be laid out that no action will be denied that a life has been taken. Time will be accorded but the consequences of that must also be considered in so ordering. In particular should emergency driving either by Police, or ambulance drivers, or any other in emergency be controlled in their speeding? In so doing what becomes of the emergency that is being called upon for immediate attendance. For example, Fire that is burning a house down with People inside trapped, Should the emergency driver be penalized with a hefty penalty inscribed by the legislature as is the case here. In so doing it means that whether emergency or not the driving must heed safety of the public on the side of the road at all times. It in effect means forfeiture of the call of duty as an emergency personal. Here a police officer must drive normally allowing the crime to be committed without heed or prevention. Or in the case of a fire emergency house lives and properties lost. Or in the case of an ambulance driver death as a result of the emergency.
    
11. It is important that emergency vehicles are properly equipped as such with equipment announcing on sight on hearing that an emergency is on and the vehicle is promptly identified by all as an emergency, so that pedestrian public at large other road users are alerted of that fact. Here lights depicting and used flickering with emergency horn or the like put on sounding out warning to other road users, motorists, public pedestrians of the apparent immediate danger and emergency on red alert coming down the road at that speed. The photograph of the subject vehicle does not depict that it has police emergency lights fitted or that it has a siren drawn out on the top blaring when there is an emergency with the lights depicting. That is not so on this vehicle. There is no emergency blinkers and blinking on this occasion to signify that fact. That in my view would be against the policeman and driver with the police here. By the very nature of their duties all vehicles of the Police, ambulance or fire or other emergency vehicles must have lights and siren fitted to signify. Vehicle colouring and markings must immediately depict whether in the night or at day, what time it is clearly showing it is an emergency vehicle and if it is speeding with its lights flickering with siren blaring it is an emergency so that as here the situation will be avoided. As it happened a pedestrian child was killed.
    
12. So the path followed in State v Jeff Poki CR 23 of 2023 will not be followed given the reasoning above. Here there is no emergency equipment fitted on the subject vehicle. It will be a case where the sentence will reflect with caution that like vehicles as a precondition for them getting on the road must have these equipment fitted. Without which they will not be on the road. The reasons are specific and spelt out by this case, death will arise. But an emergency for what it is must be attended to swiftly in good time to avoid further serious consequences arising. The sentence will reflect this fact. But the law is the same, whether one is a policeman or civilian, there is no distinction in its application. One is not favoured by the law in any way or form in the sentences prescribed by the Criminal Code. All are equal and must be dealt with dictated by their individual circumstances and evidence therefrom, not without. The evidence and the circumstances here has dictated for the sentence to follow as it is.
    
13. Some contribution in the sum of K 9, 110.00 was made by the Police in support towards the funeral expenses of the deceased. That is not compensation as demanded by the relatives of the deceased. Pain and suffering and the loss of that life will not be erased by the compensation. The living will live from the reward of the dead. K 75, 000.00 is a lot of money demanded. It is against compensation 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 ones 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.
    
14. And this in my view is the language of the Criminal Law (Compensation) Act 1991 section 5 (3) (b) that sets out compensation by not to exceed K 5,000.00. 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 child is dead he being what children are did not take heed of the on coming vehicle, nor that care should be taken at roads because of the frequency of vehicles on it. The sentence must protect the pedestrians and our children, but at the same time, emergency drivers Police Ambulance fire and any others of similar calling must be protected and encouraged to continue to do what they do for the call of community society emergencies without fear of being prosecuted for criminal breaches in the use of the emergency vehicles. At the same time their duties are visible and clear for all to take evasive action to not see what was the case here.
    
15. What then is the appropriate sentence given these for the prisoner here?
    
16. I am conscious that the maximum penalty is always reserved for the worst offence. And I take due account that the facts circumstances here do not attract it as the worst case. In this regard Avia Aihi v The State (No 3) [1982] PNGLR 92 (5^th March 1982). I am mindful that for all intent and purposes I am not shackled in my sentencing discretion which is the dictate of the Legislature for all intent and purposes open given. Shackling the discretion of the Court by this means is with the greatest respect amounting to legislating. And the courts are not by law in that domain. Application of the law to a given set of situation or circumstances is indeed the domain of a court. I am not alone in this regard with reference to Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). From which I draw that all facts in the presentence report must be given their proper weight not lip service. And that I do here in the consideration of this sentence under the various heads of the sentence. It is good practise to take account of similar facts and circumstances in sentencing, but the overall driver should be the immediate facts circumstances at hand in an offence: Simbe v The State [1994] PGSC 18; [1994] PNGLR 38 (2 March 1994).
    
17. In my view this is not a case of heedless driving or reckless driving as observed in Gamoga v The State [1981] PGSC 11; [1981] PNGLR 443 (27 October 1981). Because the question that is posed is, “In relation to the offence of dangerous driving causing death contrary to s. 336(1) of the Criminal Code the test to be applied is an objective one which apart from the question whether the driving constituted a danger must include a finding of fault on the part of the driver causing the situation: such fault to involve a failure, or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case.” Gamoga (supra). Here because of the reasons set out above, this is a policeman who was because of the call to his duty was driving as seen here. He did not fall below the care and skill of a competent driver given. Experienced of 8 years driving as a policeman given his circumstances the deceased because of his tender age did not comprehend to take care and caused his young life.
    
18. Put another way, “Upon a charge of dangerous driving causing death there is no issue of breach of duty towards the deceased. The questions in issue are: Was the accused person driving a motor vehicle on a road dangerously, that is dangerously towards the other persons who might reasonably be expected to be on or near the road; and, if he were, did he thereby cause the death of another person? ”Mulas, Regina v [1969] PGSC 32; [1969-70] PNGLR 1 (10 February 1969). There was evidence of the prior consumption of alcohol by the driver and which contributed to his dangerous driving causing the death. There was no proper control of the vehicle.
    
19. That in my view is not the case here by all set out above. Therefore, the sentence will be likened to State v Nepo [2016] PGNC 10; N6178 (12 February 2016), there were two deaths as a result of the dangerous driving of the prisoner who had consumed alcohol. The court suspended the 30 months imprisonment on conditions. Here there is no alcohol a policeman intent on getting to a crime in progress that was reported and pursued. And this is not a situation as observed in State v Yosi [2016] PGNC 160; N6348 (11 July 2016), where a parked bus with the deceased under it removing the tyres was killed by the prisoner. He attracted 3 years imprisonment deducted by the time in custody and the remainder suspended on conditions.
    
20. This is a case by its own facts and circumstances set out in aggregate with all above. In my view the just and proportionate sentence is 2 years IHL all suspended on a 2 years GBB. I make no order as to the suspension of the licence. Nor as to further compensation in the light of the Criminal Law (Compensation) Act 1991 that K 5000 in goods and kind is the limit.
    
21. His bail money will be refunded forthwith.
    

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