N5379
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1176 of 2011

THE STATE

-v-

KEVIN JIKI

Wewak: Geita AJ
2013: April 19, 23, 26
August 12, 16

CRIMINAL LAW- Guilty Plea- Particular Offence, Dangerous Driving Causing Death – Criminal Code Act s328 (5) - Accident was unavoidable and was not one of deliberate risk taking.

CRIMINAL LAW- Dangerous driving- death resulted- first time offender- early guilty plea – victims partly contributed to the accident – No means assessment report provided – 2 years, wholly suspended- generous compensation of K5000.00 awarded under Criminal Law (Compensation) Act 1991. 

Cases Cited

The State v Iparu [2005] N2995
The State v Papen (No.2) [2009] PGNC 58
The State v Soma (2006) N4480

Counsels

Mr. Timothy Ai, for the State
Mr. William Tekwie, for the prisoner

16 August, 2013

DECISION ON SENTENCE

1. GEITA AJ: Kevin Jiki aged 54 pleaded guilty to two counts of dangerous driving causing the death of two persons: Mathew Yoan and Isaiah Wangimbi.

2. The prisoner was initially charged with manslaughter under Section 302 Criminal Code however after successful negotiations between the State and Defence lawyer a lesser charge of dangerous driving causing death under Section 328 (5) Criminal Code Act was opted for. The offence attracts a maximum penalty of imprisonment for a term not exceeding five years.

Brief Facts

3. The facts as agreed by the prosecution and defence on the depositions for the guilty plea are as follows. Around 10pm on 24 September 2011 as the prisoner was driving a double cab utility vehicle registration BBE 139 out of Wewak town heading home to Mangara on the West Coast Road when he ran over the two deceased persons killing them instantly. The two persons were standing alongside a Hino PMV truck parked on the opposite side of the road in the prisoner's lane. The truck was owned by the deceased Mathew Yoan. In his attempts to avoid a collision the prisoner swerved to his left on to the side of the road and subsequently ran over the two persons. 

Allocutus

4. When you were invited to tell court on matters you wanted 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 are willing to pay some compensation to the victim. You told court that it was first time and you asked for leniency and to be placed on probation. 

5. You are 54 years old and married with seven children of your own and adopted two other children. You come from Sapanaut village Gawi sub district in East Sepik Province. Six of your children are in school and three are staying at home. Your highest education level is grade 6. 

Antecedents

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

Extenuating circumstances are:

(a)	One of the deceased/owner of the PMV Hino truck was parked on the lane which the prisoner had right of way.

(b)	The PMV was parked in the area where there was insufficient lighting to show passengers near- by. 

Mitigating factors are:

a)	The prisoner pleaded guilty;
b)	Compensation paid to the deceased persons families;
c)	First time offender.

The aggravating factors are:

•	Two lives were lost: one a 19 year boy
•	The age of the prisoner and his driving experience

Defence submissions

7. Your Lawyer Mr Tekwie referred me to some National Court cases dealing with Dangerous driving cause death. I summarise them in this manner:

1. State v Iparu [2005] N2995. 18/10/2005 Kandakasi J	Guilty plea-Prisoner unlicensed-inexperienced-driving under influence of liquor- 4 deaths	3 years imprisonment	
2. State v Papen (No.2) [2009] PGNC 58. 21/05/2009 Makail J	Three counts-dangerous driving causing grievous bodily – dangerous driving causing grievous bodily harm – unlawful use of motor vehicle concurrent- alcohol use.	3 yrs; 2 yrs and 1 yr-served concurrently.	
2. State v Soma [2006] PGNC 71;N448.23/08/2006. Cannings J	Guilty plea – DDCD-defective vehicle-excessive speed-presence of alcohol	4 years,2 years suspended with conditions	

8. Mr Tekwie advanced that in light of the three cases referred to above your case was not of the worst type save the loss of two lives and must be distinguished: The absence of any direct evidence, you were licensed, your vehicle was roadworthy and your driving could not be referred to as reckless. He advanced that your actions in taking evasive action avoiding a head on collision was the best option available to you at the time when it turned fatal.
The mitigating and extenuating circumstances far outweigh the aggravating factors as founded in Soma's case referred to above. The court was invited to exercise its discretion under Section 19 of the Criminal Code Act and impose a 2 years sentence to be wholly suspended with conditions. 

State Submissions

9. Mr Timothy Ai concedes to defence submissions and call for a 2 year sentence. He advanced that the seriousness of this crime should not be overlooked in that two lives were lost. No serious objections save to remind 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. 

Decision making process

10. A pre sentence report prepared on behalf of the prisoner recommended his suitability for probation and good standing in his community. He has to his credit 30 years trouble free driving experience. In light of some K18, 000.00 being paid to the relatives of the deceased with an undertaking to double that amount has caused great concern to this court. To this end both lawyers were invited to address court on a possible double jeopardy situation. Mr Tekwie for the defence told court that such practise was common in this province and with two deaths some amount up to K40, 000.00 was expected. He further clarified that such practise evolved over time as a form of easing tension and acceptance of responsibility within the province. Mr Ai offered very little assistance save to remind court about the maximum payable under the Criminal Compensation Act of K5000. I wish to point out here that the brief discourse on the question of double jeopardy does not in any way go towards reducing the criminality of the crime in this case. Courts have maintained all along that the payment of compensation must not be used to mitigate the outcome of sentence. 

11. Your submission for leniency has been considered. I acknowledge that death has resulted from this crime. The prisoner was a first time offender, paid compensation, co-operated with police. I am satisfied that the accident was unavoidable and was not one of deliberate risk taking. If the prisoner's answer to a question in his record of interview, which I consider crucial to this case is of any assistance, why he did not travel on to the other lane he replied: "that's my lane to travel...going on to the other lane...we might bump." . Conclusive inference that the victim (s) vehicle was parked on the wrong side of the lane and what I consider the spur of the moment decision to averted a head on collision. Inferentially the fact that the driver and a passenger were fatally wounded clearly shows that they were standing nearest to the drivers' cabin, hence the vehicle facing oncoming vehicles from the opposite direction. 

Sentence

12. 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. 

13. In the exercise of my discretion under Section 19 Criminal Code Act I consider a sentence of 2 years to be appropriate. I will wholly suspend the sentence with conditions. In the absence of a Victim Impact Statement I order a generous amount of K5000.00 to be paid to the victim under the provisions of the Criminal Law (Compensation) Act 1991 within 3 months from today in default distress. Furthermore you are disqualified from holding or obtaining a driver's licence to operate a motor vehicle within a period of 3 years commencing today. A copy of this order shall be transmitted by the Assistant Registrar Wewak to the Commissioner of Police in Port Moresby. 

Sentence accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused