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State v Waranduo [2022] PGNC 257; N9715 (6 May 2022)

N9715


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 405 OF 2019


BETWEEN:
THE STATE


AND:
RIBOB WARANDUO


Wewak: Rei, AJ
2022: 2nd, 3rd & 6th May


CRIMINAL LAW – Practice and Procedure – motor vehicle accident causing death – over taking – wrong side of road – collided onto pedestrian – plea of guilty – sentence of 2 years wholly suspended with conditions.


Cases Cited:
Papua New Guinean Cases


Public Prosecutor -v- Sima Kone [1979] PNGLR 294
The State -v- Bernard Boski (unnumbered decision 11th April 2022)
Karo Gamoga -v- The State [1981] PNGLR 443
Goli Golu -v- The State [1979] PNGLR 653
Avia Aihi -v- The State [1982] PNGLR 62
Ure Hane -v- The State [1984] PNGLR 105


Overseas Cases


Whittal -v- Kirby [1942] KB 194, (at 203)
Sheldrick -v- The Queen [1960] Tas SR(NC)


Legislation:


Section 328 (2) and (5) of the Criminal Code
Section 19 of the Criminal Code


Counsel:

Mr. Lukara Rangan, for the State
Mr. Alex Kana, for the Defence


6th May,2022


  1. REI AJ: The accused Ribob Waranduo was arrested on the 12th of July 2018 and charged under Section 328 (2) and (5) of the Criminal Code that he, on the 12th day of July 2018 did dangerously drove a motor vehicle registration number P.1888 (“the Vehicle”) along the West Coast Road Wewak, East Sepik Province and caused the death of a Kylie Kivang who was 26 years of age at the time of the accident.
  2. It is alleged that sometime between 4:00 pm and 5:00 pm, on the 21st day of June 2018, the accused – Ribob Waranduo was driving a motor vehicle, a MAZDA TITAN Truck bearing the Registration No. P.1888 and white in colour along the Wewak-Dagua Highway towards the general direction or Wewak Town.
  3. Ribob Waranduo had just left Parom Village and was on his way back when he, along the Herinungu SSEC Mission section of the Wewak–Dagua Highway, over took a slow – moving Open Back Landcruiser bearing the Registration No. WAE.167 and maroon in colour on the left side of the road.
  4. Whilst he was over-taking that maroon Landcruiser, he hit a female pedestrian by the name of Kylie Kivang and her two (2) young children, knocking them onto the side of the road.
  5. Kylie Kivang was then taken to Boram General Hospital that same afternoon, but was pronounced dead soon after.
  6. A Post-Mortem Report dated the 29th day of June 2018 and signed by Dr. Cherobim Kapanombo confirms that the deceased – Kylie Kivang died from Hypovolaemic shock due to splenic injuries that she suffered as a result of the motor traffic incident.
  7. He was arraigned on the 3rd of May 2022 during which the charge and the briefs facts were read to him.

PLEA


  1. The accused pleaded guilty to the charge.
  2. Mr. Kana submitted the plea was consistent with his instructions.
  3. A perusal of the committal file showed that the accused did admit committing the offence in the record of interview dated 23rd August 2018 which admissions are contained in answers Q18 to Q51.
  4. The plea of guilty was therefore confirmed and the accused was found guilty as charged of dangerous driving causing the death of Kylie Kivang along the West Coast Road Wewak, East Sepik Province on the 21st day of June 2018.

ANTECEDENT


  1. Mr. Rangan submitted there are no prior convictions.

ALLOCUTUS


  1. The prisoner said sorry to the relatives of the deceased for the loss of their relative. He also said sorry to the Court for taking its time.
  2. He said that this is his first encounter with the law.
  3. He is married with six (6) children five (5) of whom are girls and one (1) male.
  4. He said himself and his wife are substance farmers and live on hand – to – mouth existence every day.
  5. He also stated that as a sign of genuine remorse for his wrong, he paid compensation of cash in the sum of K17,800.00 and K2,400.00 worth of food items making a total compensation payable of K20,200.00.

MITIGATING FACTORS


* Early Guilty plea, which saves Court time and money and inconvenience in calling witness, to run a trial;

* has apologised and shown genuine remorse;

* has surrendered and cooperated with the police;

* is first time offender with no prior conviction;

* has paid compensation of amount of K20,280.00 of which K17,800 was cash and K1,680.00 food items, K800, funeral expenses.


  1. Paid compensation of K17,800.00 in cash and K2,800.00 worth of assorted food items.

AGGRAVATING FACTORS


  1. Loss of life of a young 26 year old mother.
  2. Prevalence of offence.

PRE-SENTENCE REPORT (“PSR”)


  1. Mr. Kana requested that a PSR be provided which PSR was filed on 5th May 2022.

DECISION ON SENTENCE


  1. Sections 328 (2) and (5) provide that a person who dangerously drives a motor vehicle on a public road causing death shall be sentenced to 10 years imprisonment subject to Section 19 of the Criminal Code.
  2. I refer to my own unnumbered decision handed down in Vanimo on the 11th of April 2022 in the matter of The State -v- Bernard Boski (unnumbered decision 11th April 2022) in which I referred to and relied on several cases dealing with dangerous driving causing death. These are the cases of Whittal -v- Kirby [1942] KB 194, as to the remarks of Lord Goddard (at p.203), the remarks of Burbury CJ in Sheldrick -v- The Queen [1960] Tas SR (NC) and the case of Public Prosecutor -v- Sima Kone [1979] PNGLR 294.
  3. I make specific reference to the case Public Prosecutor -v- Sima Kone (Supra) in which the Supreme Court overturned a non-custodial sentence of 18 months. The Supreme Court then said that:

“In sentencing offences in charges of dangerous driving causing death, only in the most exceptional of cases may the necessity for public deterrence against the offence be overridden by the circumstances of a particular case, to the extent that the offender is not sentenced to a term of imprisonment.”


  1. The Supreme Court in that case also said and I quote:

“... it is the duty of the trial judge to impose a term of imprisonment as a deterrence to others. If he does not do so, .... he would be weakly merciful and failing in his duty ...”


  1. The Supreme Court also said in that case that:

“..., [T]hose who drive in a manner dangerous to the public must ... expect to go to gaol for this offence, however irreproachable their characters may be ...”


  1. The prevalence of this offence in Papua New Guinea calls for custodial sentences to be imposed as a deterrence to other road users. However, sentences imposed in these cases vary from case to case and that each case be determined on its own facts and circumstances and that the maximum sentence be reserved for the worst kind of case – Goli Golu -v- The State [1979] PGSC 9; [1979] PNGLR 653, Avia Aihi -v- The State [1982] PNGLR 62 and Ure Hane -v- The State [1984] PNGLR 105.
  2. In the case of The State -v- Bernard Boski which I referred to earlier, the prisoner had a prior conviction and was heavily under the influence of liquor at the time he caused the accident causing the death of a pedestrian. His control and management of the motor vehicle was indeed reckless. I imposed a sentence of 3 years but suspended the whole term of 3 years on stringent conditions one of which was the suspension of his drivers’ licence for the whole term.
  3. In this case, the prisoner had no prior conviction. He was sober and vigilant.
  4. However, the offence resulting in the death of the pedestrian was caused when the prisoner turned his vehicle to the extreme left side of the road to avoid collision when the left rear vision mirror hit the deceased causing death.
  5. He was careless in the management and control of the vehicle he was driving which resulted in the death of a young mother of 26 years of age. But I do not think he was reckless. The Supreme Court said in Karo Gamoga -v- The State [1981] PNGLR 443 SC212 that in “R.v. Hill it was no more than a case of inadvertence of or heedlessness or error of judgement sufficiently serious to constitute dangerous driving to the public, but it was not a case of recklessness ...”
  6. Likewise, in this case there is no evidence of recklessness.
  7. The prisoner has shown genuine remorse by saying sorry to the relatives of the deceased and voluntarily paying compensation in cash of K17,800.00 and food items to the value of K2,400.00 making a total payment of K20,200.00. He did not wait for the Court to make an order that he pays compensation.
  8. The PSR speaks favourably for him which says that the prisoner is relatively in good terms with the relatives. It recommends that the prisoner be placed on probation.
  9. A sentence of 2 years imprisonment is imposed which is wholly suspended upon the exercise of my discretion under Section 19 of the Criminal Code on the following terms:

________________________________________________________________

Public Prosecutor: Lawyer for the State

State Solicitor: Lawyer for the Defendants

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