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State v Ondu [2014] PGNC 136; N5747 (19 September 2014)

N5747

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 846 OF 2011

THE STATE

v

KIM ONDU

Mendi: Kassman, J
2014: 4th June & 19th September

CRIMINAL LAW – Dangerous driving causing death of three men – Sentence – plea of guilty to all three counts – speed – sentence of three years imprisonment imposed for each of the three counts – three sentences to be served concurrently.

Legislation cited:

Criminal Code Act Section 328(2) and (5), Section 19(1)(a), (b), (d), (f) and (6) and Section 330(2)(a) and (b)

Cases cited:

Goli Golu v. The State [1979] PNGLR 653
Public Prosecutor v Will Moke Soki [1977] PNGLR 165
Public Prosecutor v Sima Kone [1979] PNGLR 294
State v Alphonse Raphael [1979] PNGLR 47
Karo Gamoga v The State [1981] PNGLR 443
State –v- Sima Kone [1979] PNGLR 294
The State –v- Albert Yaro (2010)

Counsel:

Sheila Luben, for the State
Cecilia Koek, for the Accused

DECISION ON SENTENCE

19th September, 2014

1. KASSMAN J: This is my decision on sentence following a plea of guilty by Kim Ondu ("the accused") to the charge of three counts of dangerous driving causing death laid pursuant to Section 328(2) and (5) of the Criminal Code, Chapter 261.
   
2. The indictment stated that "Count 1 – Kim Ondu of Longo, Mendi, Southern Highlands Province stands charged that he on the 29th day of June 2010 at Red Karanas in Papua New Guinea drove a motor vehicle, a Mazda titan Dyna, white in colour, Registration No. LAZ 738 on a road namely Okuk Highway dangerously and thereby caused the death of Markson Mark. Count 2 – Kim Ondu of Longo, Mendi, Southern Highlands Province stands charged that he on the 29th day of June 2010 at Red Karanas in Papua New Guinea drove a motor vehicle, a Mazda titan Dyna, white in colour, Registration No. LAZ 738 on a road namely Okuk Highway dangerously and thereby caused the death of Nobert Moses. Count 3 – Kim Ondu of Longo, Mendi, Southern Highlands Province stands charged that he on the 29th day of June 2010 at Red Karanas in Papua New Guinea drove a motor vehicle, a Mazda titan Dyna, white in colour, Registration No. LAZ 738 on a road namely Okuk Highway dangerously and thereby caused the death of Ank Moses."
   
3. The accused was arraigned on the following facts.
   

"On the 29th day of June 2010 at about 6:30pm, the accused was driving along the Okuk Highway from Mount Hagen to Mendi. He drove a Mazda Titan Dyna, white in colour, Registration No. LAZ 738. The two deceased Nobert Moses and Ank Moses sat in the cabin with him. There were two other passengers at the back of the vehicle. It is alleged that the vehicle was traveling at high speed. When they approached a corner at Red Karanas there were three other vehicles parked along the road to the driver's left. At the same time there was another vehicle travelling towards them. The accused lost control of his vehicle and ran into the Landcruiser that was parked on the road side. It is alleged that the deceased Mark Markson was walking along the side of the road in front of the parked Landcruiser. When the accused vehicle hit the Landcruiser, it pushed the Landcruiser which in turn bumped the deceased killing him instantly. The accused vehicle ran into a second parked vehicle along the side of the road before skidding to the opposite side of the road. The two deceased Nobert Moses and Ank Moses sustained serious injuries. There were bystanders who tried to save the two men and remove them from the vehicle but could not. Their legs were stuck in the vehicle which was smashed in front. They both died in the vehicle. The State further alleges that the accused was driving at high speed hence his loss of control over the vehicle resulting in the three deaths."

4. In allocutus, Ondu said, "First of all I would like to say sorry to Father God for this incident. Secondly, I would like to say sorry to the families and relatives of the deceased. Thirdly, I say sorry to this Court. Fourthly, I am asking this court to have mercy on me. That's all." Ondu has no prior convictions.
   
5. Section 328(2) and (5) of the Criminal Code provides "328 (2) A person who drives a motor vehicle on a road or in a public place dangerously is guilty of a misdemeanor. Penalty: Subject to the succeeding provisions of this section. (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. The State has to establish that the death of or grievous bodily harm to the victim was caused by the driving of the vehicle, the accused was the driver of the vehicle which was involved in the incident and that, at the time of the incident, the accused was driving the vehicle at a speed or in a manner dangerous to the public. The test as to whether the conduct was dangerous is an objective one. In this case, speed is a factor.
   
7. Ondu is thirty six (36) years old and is from Longo Village, Mendi Southern Highlands Province. He is the sixth child out of seven children. His father is deceased but his mother is still alive. Ondu is married with four (4) children ranging from 12 years to 8 months and resides with them at the village. He is the sole provider for his family. Ondu is a member of the Apostolic Church and this is Ondu's first offence and first time to appear in court. I have not had the benefit of the pre-sentence report which I would peruse to ascertain, among other things, whether or not compensation was paid. Counsel for the accused make no mention of compensation in submissions.
   

Comparative cases

8. The Supreme Court said in Goli Golu v. The State [1979] PNGLR 653 that the maximum penalty should be reserved for the worst type of cases in terms of the facts and circumstances leading up to, during and following the crime.
   
9. This court may also suspend part of or the entire sentence with or without conditions. This is authorised under Section 19 of the Criminal Code. This section of the Criminal Code provides among others, a shorter term may be imposed [subsection (1)(a)], a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment may be imposed [subsection (1)(b)], a good behavior bond in addition to, or instead of, imprisonment may be imposed [subsection (1)(d)], the offender can be discharged and the sentence postponed [subsection (1)(f)] or a part of or all of the sentence can be suspended subject to conditions [subsection (6)].
   
10. The Court also has the power to make orders to disqualify the offender from holding or obtaining a drivers license either absolutely or for a specified period of time (see section 330(2)(a) and (b) of the Criminal Code.
    
11. There are numerous cases on dangerous driving causing death under s. 328(2) and (5) of the Criminal Code which have come before the Courts. Sentences have ranged from suspended sentences to custodial terms. This offence may warrant a punitive and deterrent sentence even where the offender is a first time offender. The principal is well established in Public Prosecutor v Will Moke Soki [1977] PNGLR 165; Public Prosecutor v Sima Kone [1979] PNGLR 294 and State v Alphonse Raphael [1979] PNGLR 47. However, judicial discretion in relation to sentence is not removed to the extent that a sentence of imprisonment is mandatory in every case of dangerous driving causing death (Karo Gamoga v The State [1981] PNGLR 443).
    
12. In the case of State –v- Sima Kone [1979] PNGLR 294 the accused pleaded guilty to the charge of dangerous driving causing death of his wife and son who were in the vehicle with him. At the time he was under the influence of alcohol. The National Court placed him on two years own recognizance. The Supreme Court, in upholding the appeal by the Public Prosecutor against inadequacy of the sentence held that "In dangerous driving causing death only in most exceptional cases that imprisonment should not be imposed". The Supreme Court substituted the sentence to eight months imprisonment. The Supreme Court did not state what the exceptional cases would be.
    
13. In The State –v- Alphonse Naula Raphael [1979] PNGLR 47, the National Court in sentencing the accused to three years imprisonment for dangerous driving causing death, held that "the sentence should be severe because of the prevalence of serious driving offences in Papua New Guinea." There are more deaths resulting from dangerous driving than from the other causes each year in Papua New Guinea and so the higher Courts in Papua New Guinea have called for custodial sentences. In that case, the following were described as factors which place the offence in a serious category; 1. Driving without license or on an expired license; 2. Driving an uninsured and unregistered motor vehicle; 3. Driving under the influence of liquor or while drinking alcohol; 4. Driving a mechanically defective vehicle; and 5. Carrying passengers for reward on a motor vehicle not licensed to carry passengers for reward.
    
14. In Soki v Public Prosecutor [1977] PNGLR 165, the Supreme Court stated:
    

"For the offence of dangerous driving causing death, whilst appreciating that the causation of death should not be allowed to convert into "dangerous driving" behavior which would not otherwise rank as such, the seriousness of the outcome (the number of deaths resulting) may be looked at as one of the relevant features in assessing \what sentence is required to act a private and public deterrent, and to assure public conscience that the Law in the prevailing state of the community existing in Papua New Guinea will demonstrate an element of retribution."

15. Ondu's lawyer relied on this court's decision in The State –v- Albert Yaro (2010) where the offender pleaded guilty to a charge of dangerous driving causing death. The offender was a driver employed by Mendi General Hospital and it was during one of the hospital's emergency run to Mt. Hagen that the offender hit a young boy along the Okuk Highway who was confirmed dead on arrival at the hospital. The offender pleaded guilty and considering the mitigating factors, the court sentenced him to 1 year 6 months imprisonment which was wholly suspended with conditions.
    
16. There are three aggravating factors. Ondu was traveling at very high speed, Ondu caused the death of three men and the crime is prevalent. For mitigating factors, Ondu pleaded guilty to the three counts saving the court and the prosecution and their witnesses' time and expense of a full trial. Ondu was arrested and kept in custody for one night and released on police bail of K1,000 and has since attended all call-overs after he was committed on 21 June 2011. Ondu's expression of remorse to the family of the victims was very brief and lacked sincerity.
    
17. Ondu's lawyer submits the appropriate sentence is four years imprisonment to be wholly suspended with good behaviour bond with conditions. The lawyer for the State submits a custodial sentence of three years.
    

Sentence

18. I am satisfied that a custodial sentence must be imposed. Speed was the major cause for this motor vehicle incident that resulted in the sudden death of three innocent men. The guilty plea and other factors pleaded as mitigating factors are accepted. For each count of dangerous driving causing death, the sentence imposed is a term of three years imprisonment. The three sentences will be served concurrently.
    
19. The orders of the Court are:
    
    1. Ondu is imprisoned for a term of three years on each of the three counts of dangerous driving causing death;
       
    2. The three sentences will be served concurrently.
       
    3. Ondu's bail monies of K1,000.00 shall be refunded to him forthwith.
       

Judgment accordingly:
_____________________________________________________________
Office of the Public Solicitor: Lawyer for the Accused
Office of the Public Prosecutor: Lawyer for the State