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State v Makapu [2015] PGNC 60; N5993 (15 June 2015)

N5993

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. 693 of 2015

THE STATE

V

BENSON MAKAPU
Respondent

Vanimo: Geita J
2015: 4, 13, 15 June

CRIMINAL LAW- Guilty Plea- Particular Offence, Victim ran over by Prisoner on a public road – Victim attempting to collect her fallen garden produce in a squatting position – Her presence unbeknown to the prisoner - Accident was unavoidable and was not one of deliberate risk taking - Criminal Code Act s 328 (5)

CRIMINAL LAW- Sentence - Driving not dangerous - first time offender- early guilty plea – victims partly contributed to her death – Courts should guard against situations of self enrichment in one's misery and misfortune – Only nominal compensation ordered – Sentence of 2 years less pre trial custody - wholly suspended – Barred from obtaining or owning a Driving licence for five years with immediate effect. Section 330 (2) (b) Criminal Code considered.

Cases Cited
Public Prosecutor v Willie Moka Soke [1977] PNGLR 165
State v Goli Golu (1979) N180
State v Hoibo (2012) N5175
State v Waisi (2014) N5615

Counsels

Mr. Emmanuel Thomas, for the State
Mr. Baptist Fehi, for the prisoner

JUDGMENT ON SENTENCE

15th June, 2015

1. GEITA J: Upon arraignment the prisoner, pleaded guilty to one count of dangerous driving causing the death of Margaret Simpani, a 60 year old woman.

Brief Facts

2. The facts as agreed by the prosecution and defence on the depositions for the guilty plea are as follows. On Saturday 31 January 2015 between 11 am and 12 noon the prisoner, driving a Toyota Hi Ace green bus with registration P. 805 T was dropping off passengers at Vanimo town bus stop. After dropping off passengers he drove forward and ran over the deceased who was in front of his vehicle. As a result she sustained injuries to her head, ear, right hand and shoulder and died.

Allocutus

3. 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's relatives and to your employer for the hardship he faced due to compensation payments made. You told court that it was first time and you asked for leniency. You asked to be considered for probation.

You are 24 years old and married with four children. You come from Guriaso village in the Vanimo-Green district of West Sepik Province. You come from a family of seven siblings with you being the youngest. The highest grade you attended was up to grade six primary education with other trade qualifications. Immediately after the accident your guardian and employer contributed K4, 250.00 in cash and kind as compensation or "bel kol" to the victim's family members.

Antecedents

4. You have two prior driving convictions relating to alcohol use committed in 2015. A fine of K200 in default four months sentence ordered.

Mitigating factors are:

5. The factors in mitigation are:

a) Early guilty plea,

b) Compensation paid to the deceased persons families;

c) First time offender.

d) Genuine remorse shown by payment of compensation

e) Voluntarily surrendered to police

The aggravating factors are:

6. The factors in aggravation are:

a) One death resulted

b) Two prior convictions

Extenuating circumstances

7. a) Victim 60 years old

b) You were not speeding

c) You were sober

d) You hold a valid driving licence

Defence submissions

8. Your Lawyer Mr Fehi submitted on your behalf that yours was work related and you carried out the directions of your employer resulting in this accident. He submitted that only one death occurred and you were not intoxicated. Furthermore you were not driving at high speed, you were sober, you hold a current drivers licence, the vehicle you were driving was not defective. The case of State v Hoibo (2012) N5175 by AJ Toliken as he was than referred. Since the prisoner in Hoibo had spent almost 4 years in remand he was sentenced to two years and discharged at the rising of the court. Mr Fehi said when some of these factors present themselves courts tend to go for the maximum sentence. He said in your case none of those factors were present and submitted that a sentence between 2 – 3 years be considered to be wholly suspended with conditions. Furthermore he said your mitigating factors were favourable over your aggravating factors and called for a suspended sentence with orders for the suspension of your driving licence. The case of State v Waisi (2014) N5615 by Cannings J referred in support. He submitted that yours was not the worst type of driving offence, with serious offences attracting the maximum sentence. The case of State v Goli Golu referred. The court was invited to exercise its discretion under section 19 of the Code.

State Submissions

9. Mr Thomas concedes to defence submissions in general in all aspects, however advanced that the prisoner failed to take due care and attention resulting in the loss of a life and suffering to the families of the deceased. The case of State v Willie Moka Soke [1977] PNGLR 165 was referred to. He conceded with the head sentence proposed by defence and urged that the prisoner's driving licence be removed from him pursuant to Section 330 (2) (b) of the Criminal Code.

Decision making process

10. A pre sentence report and means assessment report was prepared on your behalf. The report speaks very highly of you as a good worker and God fearing and not a danger to the community. The Probation Office reports of your inability to pay any more compensation as you don't have the means necessary to pay if ordered by the court. I take judicial notice of your two prior convictions however will not place too much emphasis this time around as I consider them insignificant in this case.

11. Your submission for leniency has been considered. I acknowledge that a death has resulted from this crime. The prisoner was a first time offender, paid compensation, co-operated with police and entered an early guilty plea.

Sentence

12. Now considering the cases put before me to your case the dangerous aspect of your driving in my view appears minimal. First is that you were not driving under the influence of alcohol, you were no speeding, the vehicle you were driving was in good mechanical order, you were an experienced driver. As I understood from the evidence before me you did not do anything significantly dangerous untoward the victim. If anything the old woman must take some blame for her death. She was on the public highway and to squat down right in front of your PMV bus to collect her fallen vegetables unbeknown to you is not only careless but has endangered her life. On the question of K10,000,00 compensation demanded by the victim's relatives, my view is that the court should refrain from entertaining one's misery and misfortune into a money making exercise. Particularly more so in this case: the victim was 60 years old and has already lived a good part of her life.

13. Having weighed all the facts before me I am of the view that this is an appropriate case for a non custodial sentence with conditions to be imposed. I am satisfied that the prisoners mitigating factors does outweigh his aggravating factors. In the exercise of my discretion under Section 19 Criminal Code Act I consider a sentence of 2 years to be appropriate. The time spent in remand is adequate sentence in my view. I will wholly suspend the sentence with conditions in the following: You must pay a nominal compensation of K2, 500.00 to the victim's immediate family members within six months of your release in default distress. Furthermore you are disqualified from holding or obtaining a driver's licence to operate a motor vehicle within a period of 5 years commencing today. A copy of this order shall be transmitted by the Assistant Registrar Vanimo to the Motor Traffic Registry in Vanimo and to the Commissioner for Police in Port Moresby.

Sentence accordingly

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