N8232

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 535 of 2019

THE STATE

v

WILLIAM KUWOH

Lae:  Kaumi J
2019: 26th July & 16th December

CRIMINAL LAW – Criminal Code Act 1974-Section 328 (2) (5) Dangerous Driving Causing Grievous Bodily Harm-Sentence-Sentencing Guidelines-Plea of Guilt-Dangerous Driving-Drunk and Driving-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial in Custody-Should All or Part of the Sentence be Suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report

CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–Prevalent Offence.

Facts

The offender pleaded guilty to one count of Dangerous Driving Causing Grievous Bodily Harm and matter for sentence.

Legislation Cited: 

Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Cases Cited:

Alex Yembi v The StateSCR 45 of 2003
AviaAihi v The State (No.3) [1982] PNGLR 92
GoliGolu v The State [1979] PNGLR 653
SaperusYalibakut v The State [2008] SC 890
State v Kotapu(No.2) PGNC 27; N7704 (20/02/19) per Toliken. J
State v Papen (No.2) PGNC 58; N3639 (21/05/09)
The Public Prosecutor v Willy Moke Soke
The State v Bevan Hoivo Toliken. J
The State v Alphonse Naulo Raphael [1979] PNGLR 47
The State v. Joseph Muir Kaur; CR80 of 2017 (Unreported and unnumbered judgement of 20/07/17)
UreHane v The State [1984] PNGLR 105
The State v Gama Deilala CR 474 of 2017 (Unreported and Unnumbered 26/07/17)

Counsel:

Ms. Linda Maru and Comfort Langtry, for the State
Mr. Colman Balus Boku, for the offender

SENTENCE 
16th December, 2019

1.	KAUMI J: This is a decision on sentence for a man who on the 26  July, 2019 pleaded guilty of one count of Dangerous Driving Causing Grievous Bodily Harm contrary to Section 328 (2) (5) of the Criminal Code Act Chapter 262.

ISSUE
2.	The relevant issue is what the appropriate sentence in this case.

AGREED BRIEF FACTS
3.	The State alleges that on the 5th of December 2018 between 6.00am - 7.00am the defendant William Kuwoh was driving a Toyota Land Cruiser truck registered number LBC -511 along the Markham road whereby he drove dangerously and collided onto another oncoming vehicle. The defendant left his lane swerved to the right lane belonging of the oncoming vehicle and collided with it. 

4.	As results of the collision the complainant bus driver Ulg Pik sustained injuries to his right leg (fibula fracture). The State further alleges that the defendant drove the vehicle whilst under the influence of intoxicating liquor. The State alleges that the defendant drove the said motor vehicle on a public street dangerously and caused grievous bodily harm to Pik hence he is indicted pursuant to Section 328 (2) (5) of the Criminal Code.

ANTECEDENT
5.	The Antecedent Report provided to the Court by the State states that he has no prior convictions.

ALLOCATUS
6.	When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“I want to say sorry to the National Court of Papua New Guinea and sorry for what I have done. I say sorry to the family of the victim. I say sorry to the Court staff. I ask for the mercy of the Court.”

OTHER MATTERS OF FACT
7.	The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating  matters raised in the committal depositions, the allocatus and in submission that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. 

SUBMISSION BY DEFENCE COUNSEL
8.	Mr. Boku for the offender submitted inter alia, that he committed the offence under the influence of alcohol but contends that necessary steps were taken by the Hidden Valley Company (who own the vehicle that the offender was driving) to pay medical bills for victim and compensation paid by the company. And the offender lost his employment.

9.	Mr Boku adopted the sentencing guidelines in the State v. Gema Deilala; CR 474 of 2017 (Unreported and Unnumbered of 26th July 2017) and submitted for a 2 year sentence being wholly suspended on the basis that the medical bills for the victim being paid for and compensation paid by the offender’s former employer, Hidden Valley Limited. Further that the offender’s loss of employment amounted to sufficient punishment for him.

SUBMISSION BY THE STATE
10.	Ms. Maru for the State highlighted the aggravating factors which are worth mentioning, the offender was drunk at the material time and as a result lost control of the vehicle he drove; his actions resulted in serious injury sustained by the victim, Ulg Pik; the bus substantial sustained damages and the owner no doubt would have met the cost of the damage;the victim almost lost his life; the bus was off the road as a result of the accident and there is loss of business by the victim; the offender was not a first offender that he had a prior conviction against him in the District Court for assault and for which he was fined K300-00.

11.	Ms. Maru that the offender has suffered nothing and yet he was the cause of all these suffering because of his own careless and dangerous driving following his consumption of liquor.

12.	She submitted for a punitive sentence given the circumstances of this matter, with a starting point of 3 years custodial sentence being appropriate.

WHAT IS THE MAXIMUM PENALTY?
13.	In this jurisdiction it is trite law that the maximum penalty prescribed for an offence is reserved for the worst form or a category or offending for that particular offence. Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] 92 and Ure Hane v The State [1984] PNGLR 105.

14.	Section 328 (2) & (5) of the Criminal Code states:

 (2) A person who drives a motor vehicle on the road or in a public place dangerously is guilty of a misdemeanor.

Penalty: Subject to the succeeding provisions of this section-

On summary conviction- a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both. 
On conviction on indictment-a fine not exceeding K1, 000.00 or imprisonment for a term not exceeding two years, or both.
 (5) If the offender causes the death of a person of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.’ (emphasis added)

15.	The maximum sentence is 5 years imprisonment. This case does not fall into the category of worst cases however it is serious as a man was very seriously injured and could have lost his life and hospitalized.

WHAT IS THE STARTING POINT?
16.	The proper starting point forDangerous Driving Causing Grievous Bodily Harm in this case is the midway point of 30 months.

WHAT SENTENCE HAD BEEN IMPOSED FOR EQUIVALENT OFFENCES?

17.	I will consider the sentencing trends in recent history.

18.	The following are National Court sentences for Dangerous Driving Causing Death and Grievous Bodily Harm.

(a) State v Papen (No.2) PGNC 58; N3639 (21/05/09) –The offender was convicted of 3 charges, Dangerous Driving Causing Death, Dangerous Driving Causing Grievous Bodily Harm and Unlawful Use of Motor Vehicle. 3 years was imposed for DDCD, 2 years for DDCGBH and 1 year for UUMV all to be served concurrently. Pre-Trial Custody period of 1 year 2 months was deducted so balance of 1 year 9 months and 28 days to be served IHL.

(b)State v Kotapu (No.2) PGNC 27; N7704 (20/02/19) (Toliken. J)–offender convicted of DDCGBH to 3 prisoners. Offender was a policeman driving 3 prisoners to court when accident occurred whilst avoiding an on-coming vehicle. Offender sentenced to 18 months for each count to be served concurrently.

 (c) The State v. Joseph Muir Kaur; CR80 of 2017 (Unreported and unnumbered judgement of 20/07/17) - The offender pleaded guilty to one count of DDCGBH and was sentence to 12 months Imp which was suspended wholly on condition which included an order for compensation in the sum of K5000-00 pursuant to section 5 of the Criminal Law (Compensation) Act 1991.

(d) The State v. Gema Deilala – offender pleaded guilty to one count of DDCGBH and was sentence to two years imprisonment in addition to an order to pay a fine of K600-00. The sentence was wholly suspended conditionally.

 (e)Alex Yembi v The State SCR 45 of 2003.The offender drove a car at high speed at night time through a crowded area and lost control killing two persons and injuring two others.The offender was sentenced to 3 years imprisonment for each DDCD count and 2 years for each DDCGBH count to be served concurrently and half the term suspended The Supreme Court found the sentence lenient, quashed the appeal but upheld the sentence.

19.	I note from the cases above that the sentence range forDangerous Driving Causing Death is 2 to 3 yearsand forDangerous Driving Causing Grievous Bodily Harm generally the sentence range is 1 to 2 yearson a plea of guilty and suspension of these periods have depended on the peculiar circumstances of the matter and with conditionsattached. 

WHAT IS THE HEAD SENTENCE?
20.	In order to arrive at a head sentence I have to consider the particular circumstances in which the offender has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.

21.	There are a number of mitigating factors in the matter, the plea of guilt, his expressed genuine remorse in allocatus, offender’s former employer (Hidden Valley Transport/Logistics) whose vehicle he driving at the time of the accident paid compensation of K94, 500.00 to the owner of the PMV bus 2 months after the accident and is a strong mitigating factor and he lost his permanent job. 

22.	The aggravating factors against the offender are matters the court also must take into consideration and are; first, the offender was drunk and driving,The State v Alphonse Naulo Raphael [1979] PNGLR 47; second, he was driving dangerously; third, I note that he was driving without due care and attention,The State v Bevan Hoivo Toliken. J and fourth, he caused serious injury to the victim Ulk Pik The Public Prosecutor v Willy Moke Soke. 

23.	The mitigating factors outweigh those in his aggravation.

24.	Considering the circumstances of this matter and the sentencing trend in the case the head sentence should not be above the starting point of thirty months, therefore it will be 24 months to be served.
SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?
25.	Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:
There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

26.	This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

27.	I do not deduct any time spent in pre-trial custody.

SENTENCE

28.	The offender is sentenced to 24 months imprisonment with hard labour.
29.	The offender is fined K1, 000.00 to be paid within two weeks in default he is to be committed to prison until the fine is paid in full.

30.	The term of 24 months imprisonment is wholly suspended on condition that:
a. the offender enters into his own recognizance to be of good behaviour for a period of 2 years with a cash surety of K1000.00

b. The offender’s bail of K1000.00 be converted as surety.

Sentence accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender