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State v Jonduo [2013] PGNC 258; N5383 (26 April 2013)

N5383

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 588 of 2012

THE STATE

-v-

MOSES JONDUO

Wewak: Geita AJ
2013: April 19, 23, 26

CRIMINAL LAW- Particular Offence, Dangerous Driving Causing Grievous Bodily Harm – Criminal Code Act s328 (2) (5)

CRIMINAL LAW- Dangerous Driving- injury resulted- first time offender- early guilty plea – victim partly contributed to the accident – failed to take due care and attention – No means assessment report provided - generous compensation of K500.00 awarded under Criminal Law (Compensation) Act 1991

Cases Cited

Karo Gamoga V The State [1981] PNGLR 443
The State V John Koe [1976] PNGLR 562
State v Robert Yangu CR 09 of 2007
State v Victor Oswaldo Ningle Cr 50 of 2007

References
Criminal Code Act s328 (2) (5)

Counsel

Mr. Kupmain, for the State
Mr. Fingu, for the prisoner

26th April, 2013

DECISION ON SENTENCE

1. GEITA AJ: Moses Jonduo pleaded guilty to one count of dangerous driving causing grievous bodily harm to Pakus Auruo a national male.

2. The prisoner was charged that on 14 December 2011 he drove a motor vehicle, Toyota Hilux, registration number BCD 438 upon a public street, Sepik Highway (Waikakum) dangerously causing the injuries, thereby contravening section 328 (2) (5) of the Criminal Code.

3. Upon arraignment the prisoner pleaded guilty to the charge. A provisional guilty plea was entered and having satisfied myself with all the material before me I confirmed his guilty plea.

4. The brief facts of the case are that on the day in question, the accused was on his way to Waikakum village. As he was driving downhill he failed to negotiate a bend, lost control and bumped into an oncoming vehicle a Hino 300 PMV vehicle on the opposite lane. The State alleged that he was drinking at the time and was also travelling very fast resulting in the accident. The State further allege that the prisoner's vehicle bumped the front driver's side of the vehicle and went on and bumped the rear right hand side tyres causing dents to the PMV truck. At the time the prisoner was said to be so drunk.

5. The victim/driver of the PMV Hino truck Pakus Nouro's statement was that he loaded goods and passengers on that day and was headed for Yangkok village in Sandaun province. He said when he arrived at Waikakum village it was already dark so he stopped at Waimba Primary School to drop off some passengers. The victim said as he pulled out on second gear he saw the prisoner's vehicle approaching at full speed up the mountain with his head lights on. He said he saw the vehicle and slowed down to give time for it to pass by and continue on his journey. The victim said suddenly he was shocked when the vehicle bumped his PMV on the front driver's side and damaged it. He said he was hit and became temporarily unconscious but recovered soon after and shouted for help in pain. He was rushed to Maprik Hospital.

6. The point of impact, assessed to be 4 meters to the left side of the 10 meter wide highway would indicate that the prisoner's vehicle was slightly inside the opposite lane however the damage to the prisoner's side of his vehicle and the damage to the PMV truck, the driver's side and the damage on the rear right tyre and rim indicate that the victim's vehicle was in motion at an angle upon impact. The PMV is long wheel based and extends to about 5 -6 meters from front to the rear as shown in the photo exhibit. In addition the impact was not head on as none of the passengers in the front seats of both vehicles were seriously injured indicating that the PMV vehicle was parked on the opposite lane and as it lumbered up to move into its left lane to go downhill on second gear, obviously very slow for a Hino 300 PMV truck he found himself stuck within the tracks of an oncoming vehicle, causing the accident. In the words of the victim he waited for the oncoming vehicle to pass. By than it was too late and furthermore he did not have his parking lights on nor indication of his headlight being switched on at the time which was 7 pm and with slight showers. The victim said it was very dark but made no mention of switching his lights on.

7. The prisoner in his record of interview testified that he was tasked to assist with some "haus krai" errands by the District Treasurer. Between 5pm and 5.30pm he drove to Waken Hotel and picked up the District Treasurer who was very drunk at the time. He also picked up some drunken persons to drop them off at their homes. During the drop off errand he ended up in the accident. He denied drinking beer whilst driving as he was attending "haus krai". The prisoner said as he was driving uphill on third gear it was starting to rain and the PMV Truck did not have his parking lights on. He said the PMV truck drove down and came to the left side of his vehicle. The prisoner admitted his vehicle bumping the back right side tyre and wheel after the impact but denied he was speeding at the time. The prisoner said he didn't go straight and bumped the PMV truck. He said as he turned the corner on his side of the road the other vehicle also came and turned about to go down the mountain causing the impact.

8. Two State witness who were seated in the front seat with the victim deposed in their statements that it was dark at around 7pm and 7.30pm when they arrived at Waikakum village and stopped at Waimba primary school. They deposed of sitting in the front seats when they saw the prisoners vehicle approaching at high speed and headed straight at them hitting the front driver's side of their vehicle.

9. However the damages were restricted to the driver's side of both vehicles only and not frontal impact. In addition the damage to the PMV right rear wheel indicates that it was in motion at an angle when hit by the prisoner's vehicle.

10. The State's third witness statement says it all. He said around 7pm and 8pm as he was walking towards Waimba school he saw the prisoner's vehicle travelling uphill and hit the PMV truck which was on its side about 20 meters away.

11. The damage on the PMV front driver's side and the damage on the rear back wheel and rim indicate that the PMV was in motion at an angle or on its side as described by the witness. On its side could mean the PMV overturning and lying on its side but the photo evidence did not show signs of the PMV overturning or lying on its side. It was in good condition on all fours when the photo was taken with signs of damage to the front and the wheel base.

12. The medical report showed that the victim suffered from a painful left hip and leg but has recovered. From clinical diagnosis a stable fractured tibia was observed however this could not be confirmed due to the absence of an x-ray machine at the time. He was discharged with medication to rest his leg and await full recovery. At the time an assessment of 40% disability for the injury was recorded. No fresh assessment or a statement of his recovery and condition was put before the court during trial.
Antecedents

13. No prior convictions were recorded against you by the State.

Allocatus

14. When you were invited to tell the Court on matters you wanted the court to take into account in your favour, you said you were sorry for taking up the courts time. You said you were also sorry to the victim and the owner of the truck. That you would be willing to pay some compensation to the victim. You told court that it was your first time and you asked for leniency and to be placed on probation.

15. You a 50 years old and married with seven children of your own and adopted two other children. You come from Nungori village Kubalia in East Sepik Province. Six of your children are in school and three are staying at home. You attended Administrative College in 1985 and graduated with a Commerce Certificate in 1987.

Submissions by Defence Counsel

16. Your Lawyer Mr Fingu highlighted your guilty plea and your willingness to pay some form of compensation to the victim. Your clean criminal record was also pointed out to this court. A wholly suspended sentence with a starting point of 6 months was submitted to be appropriate sentence by the prisoners' counsel.

Submissions by the State

17. Mr Kupmain raised no serious objections, save to tell court that the offence was a serious one and attracted a sentence of up to 5 years in prison depending on the mitigation and aggravating circumstances. He urged court to consider an exemplary sentence of deterrence to the prisoner and others who may be contemplating committing similar offences. Mr Kupmain submitted that the court take into account the 40% disability assessment recorded by the victim's doctor in 2011.

Decision making process

18. The maximum penalty prescribed under the Criminal Code for s328 (2) (5) Dangerous driving of a motor vehicle is five (5) years.

(2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanour.

(5) If the offender caused the death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term of not exceeding five years.

19. In your case I consider 12 months to be the appropriate starting point.

20. No National Court case precedents were referred to me for very good reasons. One of which is that such cases are usually referred to the Grade Five Court upon election and rarely end up in the National Court. This case has come this far and upon my enquiries why it should be heard at the National Court the Public Prosecutor moved that it be so heard due to it being outstanding since 2011 and to have it returned to the Grade Five Court below would cause great hardship and injustice to the prisoner.

21. Mitigating factors are:

1. it was a one-off transaction;
2. you pleaded guilty

100. you are a first time offender.
     

22. Your submission for leniency has been considered. In the absence of National Court precedents I have referred to a District Court case involving the same charge which I deliberated. That is a motor vehicle accident case I did. The State v. Robert Yangu GFCr 17 December 2007 (unnumbered). The prisoner was found guilty. A suspended sentence of 18 months was imposed with reporting conditions. This was a dangerous driving causing death case. The prisoner was a first time offender, paid compensation, co-operated with police. The court found that the accident was unavoidable and was not one of deliberate risk taking.

23. In those two cases, I found that although the defendants driving was considered dangerous the court was satisfied that the two accidents were unavoidable and were not one of deliberate risk taking. I adopt the principles in the two District Court cases and apply them in this case.

Sentence

24. Having weighed all the facts before me, I am of the view that this is an appropriate case in which to suspend the entire sentence. I am satisfied that the victim was partly responsible for the accident in that he was negligent and failed to take due care and attention whilst driving a PMV on a public highway. In the end, I consider a sentence of 5 months to be appropriate. I will wholly suspend the 5 months of the sentence with conditions. In the absence of a Victim Impact Statement I order a generous amount of K500.00 to be paid to the victim under the provisions of the Criminal Law (Compensation) Act 1991 within two weeks from today in default distress.

Sentence accordingly.
______________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused