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State v Iparu [2005] PGNC 11; N2995 (18 October 2005)

N2995

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1410 of 2003

THE STATE

-V-

PHILIP IPARU

WABAG: KANDAKASI, J.
2005: 11th and 18th October

DECISION ON SENTENCE

CRIMINAL LAW- Sentencing – Dangerous driving causing death - Four instant deaths – Driver unlicensed, inexperienced and driving under the influence of alcohol – Alcohol abuse and driving under the influence of alcohol is common occurrence - Vehicle running off the road for 30 meters before plunging into cliff – Driver failing to control and or otherwise stop the accident from happening – Worse case of dangerous driving causing death – Deterrent sentence called for - Guilty plea by first time offender – Compensation paid by relatives of accused – 3 years custodial sentence imposed.

PNG Cases cited:
Karo Gamoga v. The State [1981] PNGLR 443.
The Public Prosecutor v. Willy Moke Soki [1977] PNGLR 165.
The Public Prosecutor v. Sima Kone [1979] PNGLR 294.
The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (29/04/04) N2590.

Overseas Cases

R. v. Coventry, [1938] HCA 31; (1938) 59 CLR 633.

Counsel:

Mr. M. Ruari for the State.
Mr. D. Kari for the Accused.

18th October 2005

KANDAKASI J: You pleaded guilty to one charge of dangerous driving causing death. Upon a perusal and consideration of the evidence in the District Court depositions, I accepted your guilty plea and convicted you on the charge presented against you. I did that after I raised with your counsel, suggestions in your record of interview that the vehicle had mechanical defects to its steering, brakes, clutch and gear systems, which suggested a possible defence of pure accident.

The Facts

The facts as put to you and you pleaded guilty are these. On 18th December 2002, at about 11:30 pm, you drove a Toyota Land Cruiser, registration number TAB 044 (vehicle) along the Okuk Highway at Waipakume village. You had seven people, including yourself in the vehicle as passengers. Three of you were inside the cabin whilst the rest sat at the back tray of the vehicle. You and your passengers were drunk with alcohol. At the time of your driving, you did not have a driving license and did not have any driving experience.

After having driven to a number of places in the Wabag town area, including Pato Potane’s place where you picked up a carton of beer, you finally drove along the Okuk Highway, heading for Keas village via Pawas. As you drove down and approached a curve, you lost control of the vehicle, causing it to travel at high speed. You lost control of the steering of the vehicle and failed to slow it down. As a result, the vehicle went of the road for about 30 meters before it plunged a further 30 meters or so into the Lai River, where it landed on a big stone.

The impact of the vehicle going off the road and landing hard on a big stone in the Lai River caused the four passengers at the back tray of the vehicle namely, Ambrose Marakos, Isaki Samuel, Michael Boluan and Boski Aiok to be thrown out of the vehicle. They too landed hard on stones resulting in serious injuries to their heads, leading to their immediate deaths. Of the passengers that survived, two of them sustained serious injuries.

You surrendered to police immediately after the accident. There is evidence in the form of the pre-sentencing report that, your clansmen paid customary compensation for the death and loss of the four people who are also your clansmen. The payment of the compensation has ensured peace and normalcy in your village.

Address on Sentence

In your address on sentence, you asked the Court to note that all of the deceased persons were your relatives and that you did not mean to kill them. It was an accident. You are thankful to God that you and the other two passengers in the vehicle at the time are alive. You also asked the Court to note that, you surrendered to police immediately after the accident. Further, you asked the Court to note that you and your relatives paid customary compensation. Furthermore, you asked the Court to note that, you are a first time offender and that you are sorry for bringing about the death of the four people, which means a loss to their family, relatives and friends. You ended with a plea for probation.

Your lawyer, urged the Court to take into account what you told the Court as well as your other personal and family backgrounds as outlined in the pre-sentence report prepared by the Probation Service here in Wabag, before arriving at a decision on your sentence. The pre-sentence report states that, you are 27 years old and come from Keas Village, here in Wabag. You are married with one child and you live with your parents in your village. By way of education, you completed grade 6 and have no formal employment. You are therefore, a subsistence style dweller. You have no health problems.

The pre-sentence report also states that your relatives paid customary compensation for the death and loss of the four people. The compensation consisted of 135 live pigs, 64 slaughtered, and K13, 000.00 cash. The payment of compensation has ensured normalcy in the village and in particular, ensured good relationships between your family and the families who lost the deceased persons.

Further, the pre-sentence report states that you are not a violent person. The incident giving rise to the death of the four people was an accident in which you did not intend to have the deceased killed. Your community is therefore prepared to help you to rehabilitate if you are given a non-custodial sentence. Based on this, the pre-sentence report recommends a non-custodial sentence for you without providing any detail proposal for rehabilitation and community based sentence outside the prison system for you.

Your lawyer correctly, in my view, submitted that, this is a serious case of dangerous driving causing death. It therefore requires a sentence that will serve both a personal deterrence for you and generally any other person who might be inclined to repeat your kind of conduct. He submitted that a part custodial and part suspended sentence would be appropriate for you. He did not suggest any particular term of sentence.

The State agrees with the submission of your counsel, particularly that, this is a serious case of dangerous driving causing death. He in fact submitted that this is a worse case of dangerous driving causing death. In making that submission, counsel for the State emphasized the fact that, four human lives were lost as a result of your actions or inactions. You had no license to drive any vehicle but you did. Further, you had no experience in driving and despite that, you drove on the fatal day with passengers. Furthermore, you drove whilst under influence of alcohol. Counsel for the State submitted further that, it was a combination of your inexperience, being unlicensed and drunkenness that directly contributed to the accident and the consequential death of the four people. This kind of behaviour, he submitted was common and that a deterrent sentence up to the maximum prescribed sentence of 5 years in hard labour in prison is appropriate.

The Offence and Sentencing Trend

The offence of dangerous driving causing death with its penalty is prescribed by Section 328 of the Criminal Code:

"Section 328 Section 328. Dangerous driving of a motor vehicle.

(1) ...
(2) A person who drives a motor vehicle on a 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 or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.
(6) . . ."

Both counsels were not able to draw the Court’s attention to any case on point that might be of assistance to me in terms of sentencing trends and or tariffs for dangerous driving causing death. This does not mean that, there are no cases dealing with dangerous driving causing death.

The Supreme Court in Karo Gamoga v. The State,[1] reviewed all of the cases on dangerous driving causing death up to the time of that decision and noted that the principle, that the need for public deterrence, prevails over other factors is settled. In so doing, the Court quoted the following from its earlier decision in The Public Prosecutor v. Willy Moke Soki,[2]:

"In many areas of this country and with some of its inhabitants, sentences of detention appear to us to be the only really effective personal and public deterrent available. Sentences of detention appear to be in tune with what public conscience and community feeling would demand in most cases of dangerous driving causing death."

The Court also had regard to what the Court said in The Public Prosecutor v. Sima Kone[3] in terms of:

"The court considers that only in the most exceptional of cases may the necessity for public deterrence against this offence be overridden by the circumstances of a particular case, to the extent that the offender be not gaoled."

The Court observed that the phrase:

"... ‘most exceptional circumstances’ is not the same thing as circumstances uncommonly encountered. There is such a variety and combination of circumstances involved in facts giving rise to the particular charge, which makes it most undesirable for any court of appeal to lay down guidelines other than in the broadest sense. The factors mentioned in Sima Kone ..., especially when conjoined with the ever present possibility of payback killing and tribal fighting resulting from a road accident death in many areas, carry with them the consequence that an offender could normally expect to receive a custodial sentence. Nevertheless, there are individual instances where such a course is not warranted. These it would be most undesirable to stipulate other than to say in general terms that such persons would appear at the bottom end of the sentence scale."

At the same time, the Court noted that, whilst these principles are well established, they nevertheless do not remove the judicial discretion in relation to sentence in terms of making imprisonment in every case of dangerous driving causing death mandatory or automatic. As the Court further noted, neither the decision in Willy Moke Soki[4] nor the one in Sima Kone[5] attempts to outline or define the exceptional case, which might call for a lesser punishment than imprisonment. This is because the circumstances involved in cases of dangerous driving causing death may be infinite.

Further, the Court noted that, there is a distinction between cases of heedlessness and recklessness. In other words, there is a distinction between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other. It then identified cases of high speed, intoxication, overtaking in the face of oncoming traffic, cutting corners, driving a vehicle in known unroadworthy or other dangerous condition and other such examples of recklessness where there is deliberate taking of unjustifiable risks as cases of aggravation.

Furthermore, the Court noted that since the decision of the High Court in R. v. Coventry,[6] it is not an essential element of the crime of dangerous driving causing death that the accused should have adverted to the possible consequences of his manner of driving and been indifferent to them. Although this has much to do with the question of guilt or innocence, the distinction between heedlessness and recklessness is obviously highly relevant to the question of penalty. What this means is that, when all other things are equal, one would expect the man who realizes that his manner of driving may endanger the public and nevertheless proceeds with it, to receive a heavier penalty than the man who carelessly fails to advert to the possibility of danger at all.

In the same case, per Pratt J., the Court noted that the Supreme Court had already observed:

"To our mind, the problem here with a multitude of defective vehicles being driven, frequently in drunken condition, by people with minimal driving abilities and little social responsibility in the matter of driving, is critical to the very existence of a stable society."

The Court further noted that, given the prevalence of the offence and the serious consequences that follow the commission of the offence, a custodial sentence is appropriate unless a prisoner demonstrates an exceptional case warranting a non-custodial sentence.

A quick survey of the kind of sentences imposed to date reveals a sentence of 12 months in hard labour reduced to the time already spent in custody and awaiting appeal in the Karo Gamoga case. That was a case in which the Supreme Court on appeal found that the appellant misjudged the speed of the other vehicle and there was no criminal negligence. Only one out of three people in the vehicle at the time died.

In the Sima Kone case, the National Court deferred sentence and in the meantime ordered certain hours of work at a hospital for two years. On appeal against that decision, the Supreme Court quashed the decision on sentence and substituted it with a custodial sentence of 18 months. Mr. Kone was the driver of a vehicle when he was drunk and asked to be driven by others was forced to drive despite his reluctance. He collided into a tree resulting in the death of his child and wife who were passengers in the vehicle at the time.

In the Willy Moke Soki case, the Supreme Court was of the view that a sentence above 6 months imprisonment was called for. There, 6 people died out of the appellants dangerous driving. However, because the condition for recognizance in the sentence imposed by the National Court had expired at the time of the Court’s decision, it did nothing about the sentence. There, the Court did hold that, the number of deaths out of dangerous driving causing death is a factor in aggravation, which the sentencing court should take into account.

I have not been able to find any recent cases. All of the above cases were decided upon in the late 1970s and early 1980s. Since then the offence of dangerous driving causing death has not decreased. Instead, they have increased. In most of the cases of dangerous driving causing death, alcohol is a very significant contributor. In some provinces including this province, there has been a ban on liquor or alcohol, appreciating the social problems alcohol has brought about. It means therefore that, in a case of dangerous driving causing death, where alcohol is involved, a sentence much higher than those imposed in the late 1970s and early 1980s is warranted. Such a sentence is necessary if the desired purpose of serving personal and general deterrence, which the above Supreme Court decisions clearly speak of, for the safety of the society, is to be achieved.

Sentence in Your Case

In your case, you were driving whilst under the influence of alcohol in a province where alcohol is banned. The law prohibits a person from driving whilst under the influence of alcohol, but you did. You were unlicensed and inexperienced at the time. This means that, you were in no position to take on any passengers. The only time in which an inexperienced person is allowed to drive is when one is learn-driving. When learn-driving, the law requires an experienced driver to provide instructions and guidance to the one learning. Hence a learn-driver cannot drive on his own, let alone, take on passengers because of the inherent dangers that come with it. Further evidence shows that, you drove at a speed, which was excessive in the circumstances. I believe you being drunk contributed to the speed at which you travelled. Then when the vehicle went out of control and out of the road, there was opportunity to safely bring the vehicle to a stop. Unfortunately, because of you being drunk and being inexperienced, you failed to bring the vehicle under control and avoid the accident.

Since you had no license to drive, coupled with your inexperience and being drunk, you were in a position to know that you were in no position to drive safely. Yet you placed yourself in control of a motor vehicle and took on others as passengers when legally your physical condition did not permit or allow you to. Then when you drove on the road, you had opportunity to bring the vehicle under control and avoid the accident and the consequential death of the four people but you did not. I find that, your actions were not misjudgments or pure accident. Rather, they were a deliberate breach of the traffic regulations or laws of the country and more so with knowledge that you were setting out to endanger the lives of your passengers, other users of the road and properties along the road or on the vehicle.

I find the above factors as serious aggravating factors. When I consider these factors against the background that, the offence of dangerous driving causing death in circumstances similar to yours is prevalent; I have no hesitation in coming to the conclusion that your case is a worse case of dangerous driving causing death. The maximum prescribed sentence of 5 years imprisonment is thus warranted. However, before arriving at a final decision on your sentence, I need to consider the factors that operate in your favour.

The first factor in your favour is your guilty plea. That saved the State the time and money it could have spent to secure your conviction. However, I note that in appropriate cases, this may be ignored particularly where the factors in aggravation are serious, which I find to be the case here.

Secondly, you are a first time offender. That means you have not been in trouble with the law before. However, it seems you have been committing the offence of driving without a license for sometime. Hence strictly speaking this would not be your first ever offence.

Thirdly, you speak with the support of the pre-sentence report that substantial compensation was paid for the four deaths you brought about. But there is no evidence of how much you personally contributed. You committed the offence and so before there could be any reduction in your sentence because of compensation already paid, there must be evidence of your own contribution. I consider such evidence is necessary, because compensation is usually paid by the community and or relatives of an offender, not out of love and an acceptance of an offender’s actions or inactions but with a desire to maintain peace between them and the victim’s side.

Taking into account both the factors for and against you, a strong deterrent sentence is called for. Such a sentence is necessary to send the message to people in this province in particular and those in the other provinces that, people who drive whilst under the influence of alcohol and taking on passengers when not properly licensed to do so, will be severely dealt with by the Court. This is what the society demands because so many lives have and continue to be lost by people of your kind who take unnecessary risks, resulting in the loss of innocent lives and destruction or damage to property. Not every person or citizen in the country own motor vehicles. They therefore rely on a few who own them. Hence, drivers in PNG have a far more onerous responsibility for themselves, the vehicles they drive and the passengers and goods they may have on board. Drink-driving when the driver is unlicensed and inexperienced in itself is a serious risk taken by a driver. Hence, such a person ought to be dealt with severely for the protection of the travelling public.

I note and take into account all that you and your lawyer asked the Court to consider before a decision on your sentence, in addition to those I have already mentioned. In this regard, I note your saying sorry for the loss of the deceased who said were your own relatives. Your expression of sorrow is nothing compared to the fact that four innocent and possibly useful members of the society have lost their lives because of your careless and criminal conduct. Your saying sorry will not bring them back to life.

I am sure your immediate family will be affected. That is however, a direct consequence of your own actions, for which you should receive no credit in terms of a reduced sentence. The authorities on this aspect are clear. I recently alluded to the legal position on that in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2).[7]

In the end, I consider a sentence of 3 years imprisonment would be appropriate. This would reflect your guilty plea and being a first time offender and the fact, that customary compensation to which you may have contributed something has been paid. If it were not for these factors a sentence up to the maximum prescribed sentence of 5 years would be appropriate. Ultimately, therefore, I impose a sentence of 3 years in hard labour to be served at the Baisu Correction Service, less the time you may have already spend awaiting your trial and sentence. A warrant of commitment in those terms shall issue forthwith.
__________________________________________________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor

^[1] [1981] PNGLR 443.
^[2] [1977] P.N.G.L.R. 165. at p. 167.
^[3] [1979] P.N.G.L.R. 294 at p. 297.12; See also The State v. Alphonse Naulo Raphael [1979] P.N.G.L.R. 47.13.
^[4] Opt. cit note 2.
^[5] Opt. cit note 3.
^[6] (1938) 59 C.L.R. 633.
^[7] (29/04/04) N2590.