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State v Teiga [2018] PGNC 114; N7216 (14 March 2018)

N7216

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 13 OF 2018

THE STATE

V

DENSUIT TEIGA

Popondetta: Liosi J
2018: 12 & 14 March

CRIMINAL LAW – Dangerous driving causing death – S.328 (1)(5) Criminal Code – Prisoner drunk – Ran off road – Passenger thrown off back of vehicle fracturing skull –

Case Cited:

Benjamin Yasi v. The State (2016) N3648
Goli Golu v. The State (1979) PNGLR 653
The State v. Joseph Kalasin, CR 1405 of 2014, Unreported Judgment dated 17^th March, 2015
The State v. Lawson Penunu (2017) N6804
The State v. Nepo (2016) N6178
The State v. Philip Samson (2016) N3647
The State v. Philip Iparu (2005) N2995
The State v. Ronald Rato (2017) N6694
Tomy Joseph v. The State (2017) N6741
Ure Hane v. The State (1984) PNGLR 105

Counsel:

Mr. D. Kuvi, for the State
Mr. E. Yovisa, for the Prisoner

DECISION ON SENTENCE

14^th March, 2018

1. LIOSI J: On 12^th March, I convicted the prisoner on 1 Count of Dangerous Driving Causing Death of deceased Christopher Albert after satisfying myself conviction was safe.

2. On arraignment, the prisoner pleaded guilty to the following facts.

On Friday the 19^th of May 2017, the accused was invited to a Farewell dinner that was being hosted by a work colleague at the Ridge residential estate located along the Kokoda-Popondetta Highway. The accused went and attended the dinner during which time he had some glasses of wine and a few cans of beer. He then left the Ridge at around 2am on the morning of the 20^th of May 2017. The deceased (who was also at the dinner) and two other men got onto the vehicle because that was the only vehicle travelling towards their house which was further down at Sangara. One of the passengers, Albert Gela, offered to drive because the accused was drunk but he refused. The accused was observed to be driving dangerously and recklessly as they left the house of one Paul Maliou Jnr who hosted the dinner. The State alleges that the accused almost ran off a culvert outside Maliou Jnr’s house. He was then observed to have swerved outside the main road lanes as they were travelling on the main highway back towards Sangara. The State alleges that when the vehicle approached the bridge at Arehe, Top Sangara because the vehicle was travelling at a high speed, the accused lost control and the car plunged into the small creek. The deceased who was seated at the back tray was thrown out and hit his head on a hard object. As a result he suffered a broken skull. He was rushed to the hospital but died some time later from internal bleeding. It is the States allegation that the accused had driven dangerously that time thereby causing the crash resulting in the death of Christopher Albert. He therefore contravened section 328 (1) (5) of the Criminal Code.

3. Under Section 328 (1) (5) Criminal Code the maximum penalty for the offence is 5 years. However, the law also states that maximum penalty are reserved for worst category offences: Goli Golu and Ure Hane.

4. My task now is to determine the appropriate penalty for you. That is whether I should impose the maximum penalty or something less as a sentence befitting the circumstances of your case.

5. To assist me, I consider various matters including your personal particulars, allocatus, submissions from your lawyer and State lawyer, circumstances under which you committed the offence, mitigating and aggravating factors and comparable judgments.

Allocatus

6. On allocatus you said and I quote, “Thank you for giving me the opportunity to stand before God and the Court. I understand I broke the law and I ask for forgiveness. I express my remorse to the family of Christopher for giving them loss and pain due to my reckless attitude. I deeply regret from the bottom of my heart. Accept my apology and forgive me. I have cooperated with the Police during the 8 weeks whilst in custody. I have faithfully attended to all my committal mentions. This is my first time to appear in court of law. I am stressed emotionally and psychologically. My reputation and integrity has gone and I am financially strained. I have 2 kids who are dependent on me who are 4 years and 1 year old respectively. Whilst in custody I wasn’t allowed to go for medical check-up until 2 months later. I have a gull infection and will be going for operations. A compensation of K11,000.00 was paid by friends and relatives on 2^nd June. I was informed by my wife about the ceremony. I ask for a good behaviour bond and again I say sorry for wasting Courts time. Forgive me I promise never to do this again or to indulge in any activity to hurt anybody.

7. Your lawyer submits the following. You are 30 years old and married with 2 children from Ulamona Village, Talesea, West New Britian. You were formally employed with Higaturu New Britian Palm Limited here in Oro. You are now unemployed after the incident. You completed undergraduate diploma in surveying and land studies at Unitech in 2012. You are the eldest in the family of 5 siblings. You are a member of the United Church faith. Currently your wife and children are in Port Moresby.

8. The offence for which you are convicted carries a maximum penalty of 5 years. However, it is trite law that the maximum is reserved for the worst type of offences: Goli Golu v. State (1979) PNGLR 653 & Ure Hane v. State (1984) PNGLR 105.

9. In determining an appropriate sentence, the first issue is whether the maximum is warranted. Your lawyer submits it is not the worst kind of gross careless driving to attract the maximum penalty.

10. In mitigation he submits, the aggravating factor includes a life been lost. Contrasted to that the prisoner has cooperated with the police and pleaded guilty. This shows regret, remorse and preparedness towards rehabilitation. He has no priors and compensation has been paid by friends and relatives totalling K11,000.00 in cash and kind.

11. Your lawyer has further cited a number of comparable cases to assist me. In the State v. Philip Samson (2016) N3647, a sentence of 2 years was wholly suspended. In The State v. Joseph Kalasin (2015) (unreported judgment Cr.1405 of 2014), a sentence of 2 years was suspended and the offenders licence was suspended for 3 years. In The State v. Ronald Rato (2017) N6694, a sentence of 2 years was wholly suspended on conditions and the offender was disqualified from holding his driver’s licence for 12 months. In The State v. Nepo (2016) N6178, the prisoner was indicted on 2 counts of dangerous driving causing death. A sentence of 5 years was wholly suspended and the prisoner was disqualified from driving for 5 years. In The State v. Lawson Penunu (2017) N6804, a sentence of 2 years was wholly suspended and the prisoner was disqualified from driving for 1 year.

12. Given the above comparable judgments he submits a sentence of 2 years be imposed and wholly suspended on conditions.

13. The State submits the aggravating factors include been drunk, reckless, a lost life and prevalency of the offence. It however agrees with the mitigating factors. Mr Kuvi has also cited a number of comparable judgments to assist. They include; Benjamin Yasi v. The State (2016) N3648 – plea – 3 years imprisonment in hard labour suspended with conditions and prisoner disqualified from driving for 1 year 6 months. Tomy Joseph v. The State (2017) N6741 – plea – sentence of 3 years wholly suspended on conditions. The State v. Philip Iparu (2005) N2995 Kandakasi J – plea – open back, driver unlicensed, inexperienced, under influence of alcohol, 4 dead, 3 years imprisonment in hard labour less custody.

14. The State submits a 2 years sentence is appropriate. Whether to suspend or not is the discretion of the Court.

15. I have considered submissions from both lawyers and the comparable cases cited. I also note the circumstances of many of these cases are similar to your case. In the circumstances, I sentence you to 2 years imprisonment in hard labour. I deduct 2 months for time spent in custody leaving a balance of 1 year 10 months to serve. However, I suspend the 1 year 10 months on the following conditions:

• You shall enter into a good behaviour bond for 2 years.
• You are banned from drinking any form of alcohol for 2 years.
• You are disqualified from holding and obtaining drivers licence or driving a motor vehicle pursuant to S.330 (2) (b) & S.19 of the Criminal Code for a period of 1 year starting today.
• The Assistant Registrar of the National Court Popondetta is to transmit a copy of this order to the Commissioner of Police and Provincial Station Commander Popondetta.
  

20. Your bail money is refunded.

Sentenced accordingly,

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