DC649

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN IT’S GRADE FIVE CRIMINAL JURISDICTION]

GFCr 16 of 2007

BETWEEN

JOHN MONDIA
Informant

AND

AIZHU FENG
Defendant

Madang: M Selefkariu
2007 : September 5

CRIMINAL - Offence pursuant to Section 328 (5) of Criminal Code Act - dangerous driving causing grievous bodily harm to another person - guilty plea – matter for sentence to consider submissions on sentence.

CRIMINAL CODE ACT – Schedule 2 offence triable summarily – sentence considered on the aggravating and mitigating factors – both prosecution and defence agreed to a fine as appropriate punishment pursuant to section 19 (1) (b).

CASES CITED
1. Goli Golu v. The State [1979] PNGLR 653
2. Kali Mari v. The State (1980) (unreported) SC175
3. R. v. McGrath [1971] PNGLR 247
4. The State v. Peter Kose Welna [1993] PNGLR 168.
5. John Elipa Kalabus v. The State [1988] PNGLR 193.

LEGISLATION
1. Criminal Code Act Chapter 262

JUDGEMENT ON SENTENCE

5 September 2007

M SELEFKARIU: The proceeding this afternoon is for your sentence. After pleading guilty to your charge you handed a one page written submission to Court. The prosecution has also submitted a short written submission on sentence. The decision of Court takes into account the matters raised in both submissions.

FACTS

1.	According to police brief facts, you drove a venicle on 24 March 2007 along a public road called Bruce Jephcott Highway. The vehicle was a Toyota Utility, grey in colour bearing the registration number BBX 403. At about 10.00 am you drove passed a bridge on the road at Sankiang village and your vehicle was heading toward Ramu Sugar township. 

2.	Your vehicle approached a curve or bend in the road. At that time police alleged that you were traveling at a very high speed and when negotiating the bend in the road you lost control of the vehicle which swerved to the left side and off the road. You tried to control the vehicle by turning to the right hand side in order to bring the vehicle back onto the road. 

3.	Police said because you were speeding and when you turned the steering wheel of the vehicle sharply to the right that caused the wheels (tyres) to break. As a result it caused the vehicle to overturn and roll over for 15 metres before stopping on the side of the road. 

4.	At the scene of the accident police saw and measured the skid marks. When the vehicle first went off the road on the left side it measured 15 metres and from there when you turn the steering wheel to the right the skid marks measured 5 metres. From the point where the wheels broke and the vehicle overturned to where it stopped that measured 15 metres. Police assessed the damages to the vehicle as extensive and beyond repairs.

5. That time you carried two passengers in the vehicle and both of them were PNG nationals. Both of them received injuries to their bodies and one of them had his finger cut off completely which is a permanent injury and grievous harm.

DEFENCE SUBMISSIONS ON SENTENCE

6. Earlier on you pleaded guilty to drive a motor vehicle dangerously and causing grievous bodily hard to another, pursuant to Section 328 (5) of the Criminal Code Act. In your submissions for mitigation of sentence you submitted that you are married with one child. Both your wife and child are in your country, China. You said after the accident you paid more than K3500.00 as compensation to the victim which also covered his medical expenses.

7. You submitted that you cooperated with police in their investigations resulting in your arrest and charge. You have cooperated with the Court and police prosecution by pleading guilty and saving Court’s time. Finally you respectfully ask for Court’s mercy and ask for a penalty of a fine.

PROSECUTION’S SUBMISSIONS ON SENTENCE

8. In the police submissions they provided a brief account of the facts. They also quoted parts of the provision that contains the charge the defendant is charged for. Prosecution submits that the offence committed by the defendant is a serious one and quite prevalent. Such that cases of this nature have increased in this jurisdiction, Madang Province, where drivers of motor vehicles have been reckless and negligent, hence causing deaths and sufferings of serious injuries to their passengers and pedestrians. They submitted that the defendant is one of these offenders who should be cautious and to take greater consideration of other road users in our public roads. 

9. Prosecution submitted that the defendant drove the vehicle dangerously resulting in one of the passengers suffering a permanent injury to his finger which was severed completely in the course of the accident. They ask the Court to impose a penalty of maximum fine against the defendant. They submitted that by doing that will deter other drivers and such punishment will stand as example to foreigners and PNG citizens’ drivers. They further submitted that foreigners who come into contact with PNG Laws must be made to respect them.

10. Prosecution submitted that the facts clearly show that the manner of driving by the defendant was dangerous as he was speeding with high speed when negotiating the bend in the road. That cause the vehicle to go out of control and ending up in the accident as it did. This, prosecution submitted as serious and aggravating.

11. They submitted that the Court has power to impose a fine pursuant to Section 19 (1) (b) of the Criminal Code Act. They finally submitted that when considering the amount of fine the Court should impose the maximum fine of K2,000.00 prescribed under this provision as the offence is serious and further such punishment will act as deterrence to other drivers be they foreigners or PNG citizens.

REASONS FOR DECISION 

12. The offence for dangerous driving causing grievous bodily harm is found under Section 328 (5) of the Criminal Code Act.

The same provision creates two offences one for causing grievous bodily harm as what the defendant is charged for and the other for causing death. 

The penalty prescribed for both offences is for imprisonment for a term not exceeding five (5) years.

13. It is trite law that the highest punishment for any offence are reserved for the worst type of that offence. Goli Golu v. The State (supra). In order for the Court to arrive at an appropriate punishment it must determine each case on its own facts. Section 328 (2) of the same provision provides –

A person who drives a motor vehicle on a road or public place dangerously is guilty of a misdemeanor.

14. On summary conviction – a fine not exceeding K200.00 or imprisonment of a term not exceeding six (6) months or both. On conviction on indictment – a fine not exceeding K1,000.00 or imprisonment for a term not exceeding two (2) years or both. It is clear the offence of dangerous driving causing grievous bodily harm is more serious than subsection (2) of Section 328 and slightly less serious for the offence of dangerous driving causing death.

SENTENCING FACTORS: Mitigation & Aggravation 

Guilty Plea

15. A plea of guilty has always been considered as a show of remorse or desire to save the victim the trauma or unpleasantness of appearing as a witness at trial. An early guilty plea carries mitigatory weight than a later one.

Contrition and Remorse

16. The defendant says he paid compensation to the victim including medical expenses. It is acceptable by Court that voluntary restitution or compensation is regarded as evidence of contrition.

17. The defendant is a first time offender and until today where he appears and pleads guilty for the charge he stands charged he has an unblemished criminal record as confirm by police.

18. The defendant said he cooperated with police and is confirmed by the prosecution. This factor is regarded as mitigating factor for sentence.

19. The defendant asked for a fine but the prescribed penalty is for imprisonment for five (5) years. The prosecution appears to support the notion that a penalty of fine would be appropriate under the circumstances given the mitigating factors in favour of the defendant. Prosecution has submitted that by s. 19 (1) (b) of Code the Court is empowered to impose a total fine of K2000.00 and have asked for a maximum fine.

20. There are other sentencing options open to this Court such as, payment of compensation Criminal Law Compensation Act, Probation: Probation Act, recognizance for GBB, Community Work or conditional discharge. These options are subject to the discretion of Court which are themselves based on proper principles and on case precedents.

In the submissions both sides did not provide any case precedents.

21. The perception in relation to this type of cases is that it is becoming prevalent. Police ask for a deterrent punishment but submitted that for this case a fine would be appropriate. 

Under s. 528 (2) Code the penalty on summary conviction is K200.00 fine or imprisonment for six (6) months or both and on indictment a fine of K1000.00 or two (2) years imprisonment or both.

22. Subsection (5) of this Section is more serious than subsection (2). Given all the mitigating factors in favour of defendant a custodial sentence would appear inappropriate.

23. Apart from compensation other options listed above again appear inappropriate as offence is serious and the defendant would be leaving for his home country, China after the project he is engaged with ends. So I agree that a fine would be appropriate and the option under Section 19 (1) (b) of Code empowers this Court to impose a fine.

24. In consideration of all the aggravating facts and mitigating factors and the law prescribing the offence I rule as follows:-

COURT ORDER

Defendant is convicted and fined K1500.00.

This is to be paid within three (03) days from now. In default the defendant to be imprisoned to a term of six (06) months in hard labour. It is also ordered that his passport and visa be released to him once he complies with this order.

For Prosecution – Sergeant Noah Pitu
For Himself – In Person