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State v Malko [2018] PGNC 486; N7606 (6 December 2018)

N7606


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1505 OF 2015


THE STATE

V

NORTON MALKO
Alotau : Toliken, J.
2018: 11th September, 06th December


CRIMINAL LAW – Sentence – Dangerous driving causing death – Plea – Prisoner, a policeman on duty hits pedestrian as she crosses road – Not worst case of dangerous driving – Mitigating and aggravating factors considered –Deterrence as over-riding purpose of sentence – Appropriate sentence – Sentence of 3 years less time in pre-sentence detention – Cancelation of licence – Circumstances for cancelation considered - Partial suspension on conditions – Whether compensation appropriate - Criminal Code Ch. 262, ss 328 (2)(5), 330(2); Criminal Law (Compensation) Act 1991.

Facts:

The prisoner pleaded guilty to one count of dangerous driving causing death. He was driving a police vehicle continuously for three consecutive 8 hours shifts when he hit an old woman who was crossing the road. The deceased crossed the road and was in the middle of the road but after seconds of undecidedness decided to turn back and got hit by the prisoner’s vehicle.

Held:

  1. The primary purpose of sentencing for this offence is public deterrence for protection of other road users.
  2. Offenders must be given custodial sentences in the first instance. Only in the most exceptional of cases where the necessity for public deterrence against the offence may be overridden by the circumstances of a particular case, will an offender be spared imprisonment: The Public Prosecutor v Sima Kone [1979] PNGLR 294; Gamoga Karo v The State [1981] PNGLR 443 followed.
  3. Rehabilitation is inappropriate as the offender is not a criminal who needs to be rehabilitated: The State v Hoivo (2012) N5175 followed.
  4. This is not a worst case of dangerous driving.
  5. The mitigating factors are; the prisoner has pleaded guilty to the charge, is a first time offender, was of prior good character, voluntarily surrendered to the police, genuinely remorseful, belkol of K20,000 was paid and deceased contributed to her demise by her undecidedness when crossing the road.
  6. The aggravating factors are; the offence is very prevalent, the offender did not slow down when he noticed the deceased crossing the road and the prisoner was suffering from fatigue having worked continuously on 3 shifts for some 21 hours without rest and did not take steps to get himself of his three consecutive 8 hours shifts.
  7. The appropriate sentence is 3 years imprisonment. The prisoner is therefore sentenced to 3 years imprisonment less time in pre-sentence detention.
  8. This is an appropriate case for suspension of sentence but if we are to have any success in deterring others, it does not bode well for public safety if offenders continue to get wholly suspended sentences. Hence offenders ought to get a partial suspension only unless special or exceptional circumstances are shown.
  9. Prisoner to serve 1 year of his sentence while the balance will be suspended on condition that he enters into his own recognizance to be of good behaviour for a period of 2 years with a cash surety of K1000. Bail converted to surety.
  10. Compensation is appropriate as K20,000 has been paid by the Provincial Government and dependants of the deceased have filed dependency claim in this Court.
  11. Cancelation of a licence, whether absolutely or for a specified period, is discretionary and hence must be exercised on proper principles and will depend on the circumstances of each case.
  12. Where the offender’s culpability is so high and there is total abandonment of moral responsibility for the life, safety and health of other road users, an order barring the offender from absolutely holding or obtaining a licence would be appropriate. Other cases would only attract cancellation for such period as specified by the court.
  13. The prisoner’s manner of driving did not display a total abandonment of moral responsibility hence cancelation is not appropriate.

Cases Cited:


The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Sima Kone [1979] PNGLR 294
Gamoga Karo v The State [1981] PNGLR 443
Avia Aihi v The State (No. 3) [1982] PNGLR 92
The State v Alphonse Naulo Raphael [1979] PNGLR 47
The State v Philip Iparu (2005) N2995
The State v Hoivo (2012) N5175
The State v Auduwa (2012) N5169
The State v Tobiyala (2016) N6417
The State v James Waisi (2014) N5615
The State v Penunu (2017) N6804
The State v Samson (2016) N6347
The State v Rato (2017) N6694
The State v Joseph (2017) N6741
The State v Joe Kalasim; CR 1405 of 2014 (Unreported judgment)


Counsel:


H Roalakona, for the State
N Walis, for the Prisoner


SENTENCE

06th December, 2018

  1. TOLIKEN J: On 11th September 2018, the prisoner, Norton Malko, pleaded guilty to an indictment which charged that on 30th July 2015 he drove a motor vehicle on the Charles Abel Highway dangerously and as a result caused the death of one Clare Perua, thus contravening Section 328 (2)(5) of the Criminal Code, Ch. 262.

FACTS


  1. The brief facts are that the prisoner is a policeman attached to the Alotau Police Station. On 30th July 2015 he was driving a Police Vehicle, a Toyota Land Cruiser bearing the Registration Number ZPD: 304 along the Charles Abel Highway. He was driving at high speed and as he approached a corner at Waima Village, he failed to slow down and in the process hit a pedestrian Clare Perua who was standing on the side of the road. Clare Perua was killed instantly on impact. The accused did not stop after hitting the deceased but continued on to Alotau Town.
  2. I initially entered a provisional guilty plea, but confirmed it after satisfying myself from the Committal Court depositions that the plea was safe. I administered the allocutus and heard submissions on sentence on 25th September 2018.

THE OFFENCE


  1. The offence of dangerous driving carries a maximum penalty of 5 years imprisonment. It is, however, trite that the maximum penalty is usually reserved for the worst instances of a particular offence. The Court has discretion to impose a lesser sentence, though, if the circumstances of the case warrant it pursuant to Section 19 of the Code. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92).

ISSUES


  1. The sentencing issues then are; (1) Is this a worst case that must attract the maximum penalty?, (2) if not, what then should be an appropriate sentence for the prisoner?, and (3) is this an appropriate case to warrant suspension of the sentence, whether wholly or partially?

ANTECEDENTS


  1. The prisoner is a Policeman attached to the Alotau Police Station. He is 27 years old and comes from Tinganalom village, Kokopo, East New Britain Province. His is married with 2 children aged 7 and 4 years old. His wife, however, deserted him and the children. He is the first born in a family of four. Both of his parents are still alive. He is a member of the United Church. He was educated up to Grade 12 and also undertook further studies through UPNG’s Kokopo University Centre. He joined the RPNGC in 2014 and passed out as a Probationary Constable that same year after which he was posted to Alotau where he was assigned to the Public Safety Section. He was arrested on 30th July 2015, detained and charged and remained in custody until he was granted bail on 11 September 2015 – a period of 1 month and 12 days. He is a first time offender.

ALLOCUTUS


  1. The prisoner apologised to God and Court for breaking law and the victim’s family and the community. He said it was like an accident but he had pleaded guilty and therefore asked for a non-custodial sentence and that he be placed on probation or pay a fine, and that he be allowed to reconcile with the deceased’s relatives.

SUBMISSIONS


  1. Mr. Walis submitted on behalf of the prisoner that there are significant mitigating factors in favour of the prisoner which should warrant a sentence of 1 – 2 years. Counsel said that on the day before the accident, the prisoner had completed his normal 8.00am – 4.00p.m shift but had to continue working until 12.00 midnight as there was no shift driver. He then continued on after that until 8.00a.m the next day. In his record of interview the prisoner admitted that he was driving at 80 kph and as he was approaching Waima village he saw the deceased in the middle of the road just off the separating line. Seeing that his lane (left side) was clear he accelerated but then the deceased suddenly, in a state of confusion and undecidedness turned back to the left lane and in the process got hit by the right bumper bar of the vehicle despite the prisoner’s best efforts to avoid her by turning to the right.
  2. Counsel submitted that even though the prisoner was speeding he was not reckless, but rather miscalculated the distance when trying to avoid hitting the deceased.
  3. Counsel enumerated several mitigating factors which he said ought to work favourably for the prisoner. I will come to these presently.
  4. The prisoner’s pre-sentence report is a favourable and balanced one having incorporated the views of both the prisoner, the deceased’s brother Arthur Perua and the Provincial Police Commander Mr. George Bayagau. Mr. Bayagau spoke favourably of the prisoner saying that he is a quiet and disciplined young officer, but said that no-one is above the law and prisoner must face the consequences. Arthur Perua said that he and the family have no wish to see the prisoner go to gaol. He initially demanded K30,000.00 compensation from the prisoner, but settled for K5000 when reminded of the maximum under the Criminal Law (Compensation) Act 1991.
  5. Counsel submitted that as a policeman the prisoner is not threat to society as his character shows, is sorry for his offence, willing to reconcile with the deceased’s relatives and promised never to re-offend. An appropriate sentence for him then, counsel submitted, ought to be 1 – 2 years which may then be wholly suspended to allow the prisoner to be rehabilitated and reconcile with the deceased’s relatives and pay compensation to them as well.
  6. Ms. Roalakona submitted in behalf of the State that an appropriate sentence ought to be between 2 – 4 years. While conceding that the prisoner had pleaded guilty to the charge and is a first time offender, Counsel said that the prisoner is a policeman who had a high duty of care when driving a police vehicle and the offence is also very prevalent. Should the Court consider a suspended sentence, Counsel submitted that the prisoner be disqualified from further holding or obtaining a driving licence under Section 330 of the Code.

PRINCIPLES OF SENTENCING


  1. The primary purpose of sentencing for dangerous driving causing death is deterrence (public and personal), for the protection of road users. In the words of the Supreme Court in The Public Prosecutor v Willy Moke Soke [1977] PNGLR 165 at 168, this is:

“to assure the public conscience that the Law in the circumstances prevailing in Papua will demonstrate an element of retribution.” And to that end, the Court was of the opinion that for many communities in country, custodial sentences were “the only really effective personal and public deterrent available” and that “sentences of detention appear to be in tune with what public conscience and community feeling would demand in most cases of dangerous driving causing death."


  1. What this effectively means is that cases of dangerous driving causing death must invariably be visited upon with custodial sentences in the first instance. The only exception would be what the Supreme Court in The Public Prosecutor v Sima Kone [1979] PNGLR 294 described as “the most exceptional of cases” where “the necessity for public deterrence against the offence may be overridden by the circumstances of a particular case, to the extent that the offender is not sentenced to a term of imprisonment” or sparred imprisonment.
  2. In Gamoga Karo v The State [1981] PNGLR 443, the Supreme Court then held that whilst public deterrence prevails over other factors, the sentence itself remains within the discretion of the Court, which ought to distinguish between cases of heedlessness or recklessness; i.e. between cases of incompetence and error of judgment on the one hand and cases involving circumstances of aggravation on the other.
  3. Hence, while the Court can have regard to the character, antecedents, age, health or mental condition of offenders, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, these pale into insignificance when considered against the need for deterrence, not out of any concern, that the offender himself might re-offend, but for public deterrence generally. In other words, the individual circumstances of the offender are subordinate to the necessity for public deterrence. Furthermore, the offender is not a criminal who needs to be reformed or rehabilitated. Hence, rehabilitation is irrelevant. (The State v Hoivo (2012) N5175).
  4. The Courts have over the years tried to provide some guidelines as to what factors ought to be considered in sentencing offenders for this offence. The State v Alphonse Naulo Raphael [1979] PNGLR 47, subsequently approved by the Supreme Court in The Public Prosecutor v Sima Kone (supra), set out some factors which may be taken as aggravating the offence. These are:
  5. The number of deaths may also rightly be taken into account as also aggravating the offence (The Public Prosecutor v Willy Moke Soke (supra). In The State v Bevan Hoivo (supra), I said that other factors may include the following:
  6. These are factors that have been brought about either by the general trend of deteriorating bad manners, the pressures of modern metropolitan life and advances in technology, which unfortunately have resulted in bad driving habits that now pose grave danger to road users.
  7. But, what would constitute those “exceptional cases” alluded to by the Supreme Court in Willy Moke Soki and Sima Kone? The Supreme Court in Gamoga Karo (supra) intimated that the term “most exceptional of circumstances” is not the same thing as circumstances uncommonly encountered. There is such a variety and combination of circumstances involved in facts giving rise to the particular charge, which makes it most undesirable for any Court of Appeal to lay down guidelines other than in the broadest sense.” And as Kandakasi, J. said in The State v Philip Iparu (2005) N2995, the circumstances are infinite. It is, therefore, left to the sentencing Court to decide what circumstances may be considered “most exceptional” in each particular case.

SERIOUSNESS AND DEGREE OF CULPABILITY


  1. The seriousness of a particular offence will depend on the following factors when viewed objectively:

SENTENCING TREND

  1. Counsel cited several decided cases, but said that those with similar circumstances to the current case are; The State v Joseph (2017) N6741 (Bona J): There the offender was driving along the Kokopau- Arawa Highway (AROB) when he hit the deceased as she was crossing the road. The deceased died instantly. After hitting the deceased the offender picked her up and took her to her father. The offender pleaded guilty to the charged and was sentenced to 2 years imprisonment less time in custody. The balance was wholly suspended on condition.
  2. The State v Rato (2017) N6694 (Auka AJ (as he then was): There the offender was driving a Toyota Hi-ace PMV bus laden with passengers along the Mulitaka/Porgera Highway and was descending downhill at high speed. As he tried to negotiate a corner he ran off the road and hit a child standing at the side of the road killing her instantly. Realising that he had killed the child he surrendered to the Porgera Police. He pleaded guilty and was sentenced to 2 years imprisonment which was wholly suspended on condition.
  3. The State v Samson (2016) N6347 (Auka AJ as he then was): There the offender was driving a Toyota Coaster PMV bus along the Okuk Highway. He was carrying students to their school at Porgera. He was speeding excessively as he was descending a corner when the brakes failed. He tried to manoeuvre the vehicle to safety but then hit a child who was standing by the side of the road killing her instantly. The offender pleaded guilty and was sentenced to 2 years. The sentence was wholly suspended with conditions.
  4. The State v Penunu (2017) N6804 (Liosi J). There the offender was driving his 25 Seater Toyota Coaster up the Kokoda Highway from Popondetta laden with passengers. He was approaching a stationary 15 Seater PMV Bus on the side of the road dropping off passengers but he failed to slow down or take precaution before passing the stationary vehicle and as result he ran into a 5 year old girl who was crossing the road after alighting from her bus. The offender pleaded guilty and was sentenced to 3 years less time spent in custody. The balance was suspended with conditions.
  5. The State v Joe Kalasim; CR 1405 of 2014 (Unreported judgment per Geita J): The offender, a policeman, pleaded guilty to a charge of dangerous driving causing the death of a young man who was standing on the roadside. He was sentenced to 2 years imprisonment. His sentence was, however, wholly suspended.
  6. The State v James Waisi (2014) N5615 (Cannings, J.), there, the offender was convicted after trial. He drove a dump truck fully laden with gravel dangerously across the path of an oncoming 15-Seater PMV bus, by failing to signal and to keep a proper lookout for oncoming traffic. He caused the collision which resulted in the death of a passenger in the bus. The Court fixed a starting point of 4 years. The mitigating factors included the fact that the offender had no priors, a long unblemished driving record that he surrendered to the police and had paid bel kol and was remorseful. The aggravating factors were that the offender failed to signal, failed to keep proper lookout and absconded bail and had to be re-arrested. He was sentenced to 3½ years, less the pre-sentence custody period. He was also was permanently disqualified from holding or obtaining a drivers licence. The balance was wholly suspended with conditions.
  7. The State v Bevan Hoivo (supra): There, the prisoner pleaded guilty to one count of dangerous driving causing death. He was carrying passengers and was travelling at high speed on a road that had been recently graded, and thus had loose gravel. He lost control of the motor vehicle and jumped off as it veered uncontrollably to the other lane. The vehicle ran off the road, and over a small a ditch where it knocked the deceased over, who was standing there killing him. The vehicle overturned with the deceased still caught under it. The aggravating factors there were that the prisoner was unlicensed. He merely had a learner's permit which had expired a month before the accident and was speeding along a recently graded road with loose gravel.
  8. I was of the view that a sentence of 2 years would be appropriate in the circumstances of that case. However, because the prisoner had spent 4 years 7 months and 2 weeks in pre-trial custody, I sentenced him to the rising of the Court instead.
  9. The State v Tobiyala (2016) N6417: There the offender was driving at a speed of 45 - 50k.p.h into Alotau Town from Gurney Airport. As she was negotiating the Huluna Corner at Rabe village she momentarily left her lane and hit the deceased, an elementary pupil attending Rabe Elementary School, as he was attempting to cross over to the school which is situated on the opposite side of the road. She applied her brakes but upon hearing people shouting she sped off without stopping and in the process dragged the child about 8m from the point of impact. I convicted the offender after trial and sentenced her to 2 years imprisonment with light labour. The offender was a first time offender and was subjected to extra-judicial harassment and threats of violence by the deceased’s relatives, among other mitigating factors. From this I suspended 1 year with condition.

CURRENT CASE

  1. The current case is by no means a worst case hence it will not attract the maximum penalty of 5 years imprisonment. In the circumstances I will set a starting point of 3 years.
  2. What, then, should be an appropriate head sentence? This will depend on the aggravating and mitigating factors, and the personal circumstances of the prisoner.

Mitigating Factors


I take into account the following mitigating factors:


Aggravating Factors

  1. The only aggravating factors against the prisoner are that the offence is very prevalent, he did not slow down when he noticed the deceased crossing the road and the prisoner was suffering from fatigue having worked continuously on 3 shifts for some 21 hours without rest and did not take steps to get himself of his three consecutive 8 hours shifts.

Deliberations

  1. What then should be an appropriate head sentence for the prisoner? This will depend primarily on the prisoner’s level of culpability and the purpose of sentencing for this type of offence. It must be noted, however, that there are no “exceptional circumstances” present in this case that should preclude the imposition of a custodial sentence in the first instance.
  2. The prisoner’s culpability is low as I have said. However, the offence of dangerous driving causing death is very prevalent. Thousands of lives have been lost, and continue to be lost on our public roads due to dangerous driving by both civilians and an increasing number of police officers.
  3. A motor vehicle is a dangerous thing within the meaning of Section 287 of the Code. Section 287 (1) imposes a duty on persons in control of dangerous things (including drivers of motor vehicles) to use reasonable care and take reasonable precautions so as not to endanger the life, safety or health of any person when using or controlling dangerous things. A failure in that regard results in criminal liability for any injury sustained, including fatalities.
  4. Now what is of concern is an attitude that appears to be increasingly exhibited by drivers in the Police Force. Some officers drive with total lack of precaution for the safety of other road users (and themselves for that matter) and some think that they are the kings of the road and a law unto themselves once they are behind the wheels of a police car. I am not saying for a moment that this was the case in the instant case, but this is the attitude that often results in unnecessary deaths and serious injuries to innocent road users.
  5. Road deaths often result in huge losses. Relatives of victims suffer immeasurable emotional and financial loss when a loved one, often a bread winner, is unnecessarily and untimely taken from them. The State is often left with a huge financial bill from dependency claims and increasingly whenever an officer of the State (particularly police officers) run down somebody, relatives and others disrupt the smooth flow of traffic and demand exorbitant amounts of compensation from the State and its agencies. The current case is a case in point where an illegal roadblock was put up resulting in a total block of vehicular traffic for a half a day and whole a whole night, not to mention the demand for compensation which resulted in the Provincial Government forking out K20,000.00 to appease the relatives for them to lift the roadblock.
  6. The sentences in the cases I cited above (one involving a police officer) attracted sentences ranging from 2 – to 3 ½ years, and except for Tobiyala all of the offenders were given wholly suspended sentences.
  7. I am of the opinion that sentences for this offence ought to increase gradually given the prevalence of the offence. In Tobiyala, which was a sentence after trial, I imposed a sentence of 2 years. My decision to impose such a sentence was heavily influenced by the extreme extra-judicial harassment and threats to which the offender was subjected from the victim’s relatives. In the current case, apart from the demands to the State, the prisoner was not subjected to the same treatment. In any case he is a policeman and can defend himself with state resources available to him which was not the case with Tobiyala who was a defenceless elderly woman.

Appropriate Sentence

  1. Hence, with deterrence in mind I should think that an appropriate sentence for this prisoner ought to be 3 years. Such a sentence is not in my view a quantum leap by any standard. It merely seeks to sound a message to other drivers that if you fail in your duty to drive with care and cause the death of someone, then you must be prepared to lose your liberty. I therefore sentence the prisoner here to 3 years imprisonment. From that I deduct the time spent in custody which is 1 month and 12 days.

Cancellation of Licence

  1. The State submitted that the Court makes an order to disqualify the prisoner from holding a drivers licence pursuant to Section 330 of the Code. Cancelation of a licence, whether absolutely or for a specified period is discretionary. Hence, as is the case always with exercise of discretion, such must be exercised on proper principles.
  2. I am not aware of any principle promulgated by this court or the Supreme Court on this point, but I would to think the cancellation of a licence would depend very much on the circumstances of each case. Where the offender’s culpability is so high and there is total abandonment of moral responsibility for the life, safety and health of other road users, an order barring the offender from absolutely holding or obtaining a licence would be appropriate. Other cases would only attract cancellation for such period as specified by the court.
  3. Applying this to the current case, I do not think that the prisoner’s manner of driving displayed a total abandonment of moral responsibility hence, in exercise of my discretion I will not cancel the prisoner’s licence or prevent him from renewing his licence whether absolutely or otherwise.

Suspension

  1. Now, should any part of the sentence be suspended? Both counsel submitted that the Court may consider suspending the prisoner’s sentence whether partially or wholly. Again this is a matter of discretion and must be done on proper principles. Ordinarily a suspension may be considered it will promote deterrence, reformation or rehabilitation of an offender; promote restitution of stolen property; or if imprisonment will cause excessive suffering to an offender because of bad physical or mental health, and also if it is recommended by a favourable pre-sentence report. (Public Prosecutor v Bruce Tardrew [1986] PNGLR 91; Public Prosecutor v Don Hale (1998) SC 564). In The State v Auduwa (2012) N5169, I said that suspension may also be considered if it will achieve reconciliation and restoration of damaged relationships between parties.
  2. So, is this an appropriate case for a suspension? I think it is, but not for the purpose of rehabilitating the prisoner, for he is not a criminal who needs to be rehabilitated, as I have said above. It has more to do with the circumstances under the offence was committed and the fact that the deceased appears to have contributed to her demises by her undecidedness when she crossed the road.
  3. There is a willingness by the deceased’s relatives and the prisoner to reconcile which is something that they can do and do not need a court order to compel them. The deceased’s relatives have asked for K5000 compensation personally from the prisoner. It must be noted, however, that they have already been paid K20,000.00 by the Provincial Government and had also filed a dependency claim against the State which is pending before the Court. Since the dependants of the deceased have availed themselves to civil remedy I will therefore not exercise my discretion to award any compensation under the Criminal Law (Compensation) Act 1991.
  4. Be that as it may, how much of the prisoner’s sentence should be suspended? Now it is my respectful opinion that if we are to have any success in deterring others, it does not bode well for public safety if offenders continue to get wholly suspended sentences. If the court is mindful of exercising its discretion to suspend a sentence, then offenders ought to get a partial suspension only unless special or exceptional circumstances are shown.
  5. With that in mind, I would suspend only a portion of the prisoner’s sentence. He will serve a portion of the sentence and I should think that it would be appropriate and just that he serves 1 year while the balance will be suspended on the condition that he will, upon his release from custody, enter into his own recognizance to be of good behaviour for a period of 2 years with a cash surety of K1000.00. His bail of K1000 will be converted as payment for his surety.

ORDERS


  1. My orders are, therefore, as follows:
    1. The prisoner is sentenced to 3 years imprisonment less 1 month and 12 days for time spent in pre-sentence detention.
    2. The prisoner will serve 1 year at Giligili Corrective Institution while the balance is suspended on condition that he will, upon discharge enter into his own recognizance, with a cash surety of K1000, to be of good behaviour for a period of 2 years.
    3. The prisoner’s bail of K1000 is converted as payment of his surety.
    4. Cash Sureties paid by the prisoner’s guarantors shall be refunded to them.
  2. Ordered accordingly. The prisoner has the right to appeal his sentence to Supreme Court within 40 days from today. ________________________________________________________________

P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner


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