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State v Faringuma [2021] PGNC 266; N9096 (30 July 2021)

N9096

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 269 OF 2020

BETWEEN:
THE STATE

AND:
RICHARD FARINGUMA

Vanimo: Rei, AJ
2021: 18^th, 20^th, 27^th & 30^th July

CRIMINAL LAW – Sentencing - Guilty Plea – Dangerous driving causing death – suspended sentence with conditions.

Cases Cited:

The State -v- Sima Kone [1979] PNGLR 294
The State -v- Benajmin Yosi CR No. 238 of 2015 N6348
The State -v- Sima Kone (supra)
The State -v- Alois Mindipi (20200 N8239
The State -v- Papen (No.2) PGNC 58; N3639
The State -v- Yosi [2016] PGNC 160; N6348
The State -v- Nepo [2016] PGNC 10; N6178
The State -v- Tobiyala [2016] PGNC 213; N6417
The State -v- Walia [2019] PGNC 328; N7961
Goli Golu -v- The State [1979] PNGLR 653

Legislations Cited:

Section328(1) Criminal Code Act
Section328 (2) & (5) Criminal Code Act

Counsel

Ms. T. Aihi, for the State
Mr. P. Moses, for the Defendant

DECISION ON SENTENCE

30^th July, 2021

1. REI AJ: BACKGROUND: The accused person Richard Faringuma was arrested on the 13^th of September 2019 on allegation that he drove a vehicle so dangerously along a public highway between Waroma and Lido Village, Vanimo West Sepik Province thereby causing the death of Severinus Moyas.

2. At the initial time, it is also alleged that the accused person was drunk.

3. A record of interview was conducted on the 29^th of October 2019 – both in Pidgin vernacular and English.

4. The matter came on for hearing on the 24^th of July 2021.

ARRAINGMENT

5. Upon the State presenting the Indictment in the matter on the 18^th July 2021, the accused person was arraigned.

6. The contents of the Indictment were read to the accused together with the statement of the brief facts and the accused person was asked to plead to the charge of dangerous driving causing death laid under Section 328(1) of the Criminal Code Act (“the CCA”).
7. A provisional guilty plea was entered.

8. Mr. August then submitted that the plea as entered was consistent with the instructions he had been given.

9. A perusal of the Committal depositions by myself showed that the plea of guilty was consistent with the evidence contained in the file.

ALLOCATUS

10. The prisoner was then asked to make a statement from the dock with respect to sentence.
11. The prisoner stated that he has apologized to the family of the deceased and has paid compensation in the sum of K5,000 to the family of the deceased.

12. He also said sorry to the Court and sought that the Court shows leniency to him in imposing a sentence because he has been a good citizen and has served the State with distinction and loyalty for the last 21 years with an impeccable report.

13. He has a large family of seven (7) children and that he is the only bread winner.

14. With the above in mind as well as the fact that he is a first-time offender, the prisoner pleaded for a non-custodial sentence to be imposed.

MITIGATING & AGGRAVATING FACTORS

15. The prisoner is 45 years of age and is currently employed who is the only bread winner of a family of seven.

16. He is a first-time offender.

17. He has shown genuine remorse by saying sorry to the family of the deceased and to this Court.

18. He pleaded guilty to the charge which saved time and costs.

19. He paid K5,000 to the family of the deceased as compensation which shows his genuineness.

20. There are however considerations against the prisoner which are that a life had been lost and prevalence of the crime.

21. Although the prisoner is an experienced motorist who says he has driving experience of 19 years, this has been negated by the fact that on the night of 13^th September 2019 his poor control and management of the motor vehicle he drove resulted in the death of the deceased.

PRE-SENTENCE REPORT

22. A Pre-Sentence Report compiled by Marilyn Binjari of the Community Based Corrections & Rehabilitation Services (“the Probation Office”) speaks favourably for the prisoner and recommends that the prisoner is a suitable candidate for probation as he is not a threat to the community having a good standing in the community and his workplace.

SENTENCE

23. The taking of the life of a person whether intentionally or otherwise is a serious matter.

24. In this case it has been noted that the prisoner was driving along the Waramo/Lido Road stretch of road in Vanimo, West Sepik Province when the deceased who was drunk at that time emerged from the opposite direction and, upon noticing him, the prisoner became surprised and ran into him.

25. He states clearly in the deposition and in the PSR that there was no intention on his part to cause the death of the deceased resulting from his negligent management of the motor vehicle.

26. However, a death of an innocent person occurred from his failure to take heed of the road conditions and of the oncoming traffic.

27. Although he paid compensation of K5,000 to the relatives of the deceased this should not, on its own account be considered as a mitigating factor in posing sentence.

28. I adopt the words expressed by Ms. Aihi in her submission that the payment of compensation should not be used as a shield to negotiate one’s way out of prison as it would be most unfair to others who get in the way of the law when causing death as a result of in-attentive control and management of a motor vehicle on a public highway or even in private roads.

29. This would result in gross injustice to others who cause death but because they pay compensation, a prison term is avoided.

30. The Supreme Court of Justice said in the case The State -v- Sima Kone [1979] PNGLR 294:

“In dangerous driving causing death, only in most exceptional

cases that imprisonment should not be imposed.”

31. The Supreme Court in that case did not specify what constitutes “exceptional cases” which I think is left to the tribunal considering the case of dangerous driving.

32. I am of the view that exceptional cases should be determined by the degree of negligence involved and conditions of driving a motor vehicle some of which are:

(i) drunken driver or
(ii) a stolen vehicle or
(iii) driving without a valid driver’s license or
(iv) gross negligence or mismanagement of the motor vehicle or
(v) number of death and/or serious of injuries sustained

33. In this case, the prisoner said in his allocutus and in the committal court depositions that he was given a special assignment by his employer to complete a certain task within a given time frame and that he had been finishing work late that week.

34. At the time of the incident he was taking his work mates to Lido Village in the early hours of the morning. He was not involved on a joy ride.

35. Furthermore, it is noted that he was not consuming alcohol and did not consume alcohol. But that the deceased was drunk riding his motor cycle when he himself having noticed the vehicle driven by the prisoner approaching ran into it.

36. The prisoner had then noticed the motor bike and became shocked in the process of which he ran into the deceased resulting in his death.

37. The issue therefore is whether under the circumstances, his actions amounted to a case of exceptional case that imprisonment should not be imposed.

COMPARATIVE ANALYSIS

38. The case of The State -v- Benajmin Yosi CR No. 238 of 2015 N6348, which involves the prisoner entering a plea of guilty where he drove a public motor vehicle onto a stationery vehicle and hit the deceased causing instant death, the Court imposed a sentence of 3 years less pre-trial period on custody and the balance of 1 year 7 months was wholly suspended.

39. The driver of that vehicle was under the influence of liquor which is not the case here.

40. In The State -v- Sima Kone (supra), dangerous driving caused the death of two (2) people – the wife and a child of the prisoner, a sentence of 8 months imprisonment was imposed by the Supreme Court on appeal against the sentence of 2 years own recognizance.

41. The State -v- Aloi Mindipi (2020) N8239 – In that case, the offender was driving a hired Toyota land cruiser from Ambua to Tari. While on the Yangome stretch the victim and two other women were crossing the road. The offender was driving at high speed. Upon seeing them, he switched lanes to his right and this caused the child to run back to the other side. He drove over the child killing her instantly on the road. The mitigating factors were that he pleaded guilty, had no prior conviction, payment of compensation was done to the relatives of the deceased. Aggravating factors were that there was a loss of life and that the offender drove dangerously. Two years was imposed and was wholly suspended with conditions.

42. The State -v- Papen (No.2) (2009) N3639 – The offender was convicted of 3 charges, Dangerous Driving Causing Death, Dangerous Driving Causing Grievous Bodily Harm and Unlawful Use of Motor Vehicle after a full trial. Three (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 was to be served IHL.

43. The State -v- Yosi [2016] N6348– This is a Mendi case and it was presided over by late Justice Ipang in the year 2016. This is a case where the offender pleaded guilty to one count of DDCD pursuant to section 328 (2) and (5) of the Code. In that case, the accused pleaded guilty that he drove a Toyota Land Cruiser and bumped into a packed PMV bus parked on the side of the road. The deceased who was under the PMV bus fixing a flat tire was consequently killed.

A sentence of 3 years was imposed. 1 year and 7 months were deducted for pre-sentence period and the balance of the sentence was fully suspended and the offender was placed on Good Behavior Bond. The Court also made further orders that he is disqualified from holding a driver’s license for the duration of 1 year and 5 months.

44. State -v- Nepo [2016] N6178 – This is a Madang matter. His Honor Justice Cannings presided over in that case where the offender pleaded guilty to 2 counts of DDCD. It was alleged that the offender dangerously drove a vehicle, resulting in the death of 2 of his passengers.

A head sentence of 30 months was imposed for each offence. As there were two separated victims the sentences were served cumulatively. There was no deduction under the totally principle. The total sentence was 5 years imprisonment, all of which was suspended on conditions, including that there be further reconciliation with the deceased’s relatives, including modest compensation. In addition, the Court ordered under section 330 (2) (a) of the Criminal Code that the offender be disqualified from holding or obtaining a driver’s license for the period of the sentence.

45. The State -v- Tobiyala [2016] N6417 – This is an Alotau case which Toliken J presided over. The case involved a female accused and the matter was contested, and the offender was found guilty after a trial. The deceased child was attempting to cross over to the other side of the road to get to an elementary school which he was attending. That morning, he was walking to school with his two older brothers. The child was rushed in a taxi to the Alotau General Hospital but was pronounced death on arrival. The Court imposed a notional head sentence of 2¹/₂ years’ imprisonment. For the unlawful and extra-judicial harassment and intimidation of the prisoner resulting in unnecessary trauma, 6 months were deducted. The Court exercised his discretion and suspended 1 year. The Offender was ordered to serve 1 year in custody at Giligili Correctional Institution.

46. The State -v- Walia [2019] PGNC 328; N7961 – This is another Alotau case presided over by Toliken J. In that case the offender was an unlicensed driver. The prisoner was driving a PMV truck along the East Cape Highway, at high speed to drop off the deceased at his village. As they were passing another village the prisoner fell asleep on the wheels and ran off the road on his right side and hit a pandanus tree and then ran into a coconut tree. The impact of the collision was on the right side of the truck where the deceased was sitting. The deceased died as a result. A sentence of 2 years and 6 months was imposed which were fully suspended and he was placed on Probation for 2 years. He was further ordered to perform 120 hours of Unpaid Community Service.

47. Section 328(2) & (5) of the CCA provides inter alia that:

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

(5) If the offender causes the death of or grievous bodily harm to another person he is liable on conviction on indictment to imprisonment for a term not exceeding five years.

It is well reserved in a case authorities such as Goli Golu -v- The State [1979] PNGLR 653 that the maximum penalty be reserved for the worst case. Each case should be determined on its own peculiar facts.

48. In accordance with Section 328(5) of the CCA, the prisoner is liable to be imprisonment for a term not exceeding 5 years as a death arose from his negligent control and management of the vehicle on the public highway between Waramo and Lido on the 13^th of September 2019.

49. Section 19 of the CCA provides for the circumstances under which sentences can be imposed upon finding the prisoner guilty on an indictment.

50. I am therefore of the view that this is a case that does not fall within the description of worst scenario.

51. Further, I have seen the prisoner in Court and assessed his demeanor to be of a good character and a law abiding citizen.

52. I am therefore inclined to impose a prison term of 3 years less the time he already spent in prison of 3 months.

53. The balance of the prison term of 2 years 9 months is suspended upon the following conditions:

(i) the prisoner shall enter into a good behaviour bond
(ii) he shall abstain from consuming alcohol throughout

the term of suspension

(iii) report to the Senior Probation Officer Elly Naphel,

Community Based Corrections Office 4 Mile, Port

Moresby on the first Monday of each month until the

suspended sentence lapses

(iv) his driver’s license is suspended for the period of 6

months from the date of this Order

(v) the OIC of the National Court Registry in Vanimo shall

forward a copy of this Judgement & Order to the

Commissioner for Police, the Traffic Registry both

in Port Moresby and Vanimo.
____________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant