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State v Boru [2017] PGNC 222; N6891 (1 August 2017)

N6891

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1937 of 2016

THE STATE

V

ANDREW BORU

Popondetta : Koeget, AJ

2017 : 27^th July & 1^st August

CRIMINAL LAW-Indictable offence – Dangerous Driving causing Death - section 328 (5) of the Criminal Code Act – sentence on guilty plea – Maximum sentence of 5 years – Courts discretionary powers under section 19 of the Criminal Code Act

FACTS

On the 30^th of April 2016 at Wasetta village along the Kokoda Highway, the accused drove the motor vehicle registration number: P46311 (PMV) loaded with passengers bound for Kokoda in the Northern Province.

The deceased a young girl of a tender age was playing on the side of the highway. A Toyota Land Cruiser drove past followed by the vehicle driven by the accused.

The victim ran to the road and into the path of the motor vehicle driven by the accused. The accused saw the victim and attempted to apply brakes to the vehicle, but it was too late as the momentum took the vehicle forward and it collided with the victim.

The victim sustained severe injuries to her body and she died as a result. The death was instantaneous.

Counsel:

L. Toke, for the State
E. Yavisa and C. Namono, for the Accused

1^st August, 2017

1. KOEGET AJ: INTRODUCTION: The accused is charged with one count of Dangerous Driving Causing Death pursuant to section 328 (5) of the Criminal Code Act.

ARRAIGNMENT

2. The prisoner pleaded guilty to the charge and was convicted accordingly.

ISSUE

3. The issue for the Court is what is the appropriate sentence the Court should impose upon the prisoner?

LAW

“303. Dangerous driving of a motor vehicle.

(5) If the offender causes the death of or grievous bodily harm to another person

is liable on conviction on indictment to imprisonment for term not exceeding five years.”

PERSONAL PARTICULARS

4. The prisoner is 50 years old and is a subsistence gardener. He resides with his children in the village in the Northern Province.

5. He is married with five children, all of tender age. His wife deserted him while detained in custody for this offence and returned to Gabagaba village in the Central Province leaving all children in his custody. He receives no support from his family members to provide food and clothes for the five children.

AGGRAVATING FACTORS

6. The prisoner was driving the motor vehicle at high speed where the deceased and other children were playing along the side of the highway. A young life is lost and it cannot be resurrected by compensation payment to the family.

MITIGATING FACTORS

7. The deceased’s family demanded compensation payment of K10,000.00 cash which the prisoner paid. The prisoner also bought store goods, garden food and vegetables and 2 pigs all valued at K7,000.00.

8. The compensation payment of food, store goods and pigs were accepted by the deceased’s family. The compensation payment was done before the hearing of this case.

9. The prisoner cooperated well with the police when he made admissions in the record of interview and he pleaded guilty in court so it saved busy time of the court. He spent 7 weeks in custody before being released on cash bail of K500.00.

SENTENCE

10. The deceased ran into the path of a speeding motor vehicle along the Popondetta - Kokoda Highway so she contributed to her own death. Despite the deceased contributing to her own death, the prisoner paid the deceased’s parents upon demand compensation in cash and kind that were accepted by them. This shows that the matter is resolved within the families according to custom prevailing in the area and peace has been restored.

11. Should the prisoner be given a custodial sentence, the five children will no doubt suffer as there will be no one available to provide means to sustain their lives.

12. The children are all of tender ages and their mother has deserted them. In this case a very lenient sentence ought to be imposed.

13. In the foregoing circumstances of this case and in the exercise of the Court’s discretionary powers under section 19 of the Criminal Code Act, the prisoner is sentenced to be imprisoned for two years in hard labour. The pre-trial custodial period of 7 months is deducted and the balance of 1 year and 5 months is wholly suspended upon the prisoner entering into recognisance and promise to keep peace and be on Good Behaviour Bond for 1 year and 5 months.

ORDERS

14. The prisoner’s cash bail of K500.00 is ordered to be refunded to him.

15. The prisoner’s driver’s licence is suspended.

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