N9706

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 751 OF 2020

 BETWEEN:
THE STATE

AND:
BERNARD BOSKI

Vanimo:  Rei, AJ
2021: 8th & 12th November
2022:  4th, 7th, 8th & 11th April

CRIMINAL LAW – Practice and Procedure - plea of guilty – dangerous driving causing death – prisoner drunk under the influence of liquor – 3 years sentence of imprisonment suspended with conditions – previous convictions.

Cases Cited:
Papua New Guinean Cases

Public Prosecutor -v- Willie Moke Soki [1977] PNGLR 165
Public Prosecutor -v- Sima Kone [1979] PNGLR 294
The State -v- Alois Mindipi [2020] PGNC 53 N8239 (12.02.20)
The State -v- Papen (No.2) [2009] PGNC 58; N3639 (21/05/09)
The State -v- Yosi (2016) PGNC 160; N6348 (11 July 2016)
The State -v- Nepo [2016] PGNC 10; N6178 (12 February 2016)
The State -v- Tobiyala [2016] PGNC 213; N6417 (9 July 2016)
The State -v- Walia [2019] PGNC 328; N7961 (12 July 2019)
The State -v- Richard Faringuma; CR No. 268/2020
The State -v- Ondu [2014] PGNC 136; N5747 (19 September 2014)
The State -v- Alphonse Raphael [1979] PNGLR 47

Overseas Cases

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

Legislation:

S328(2)(5) of the Criminal Code 	
Section 34 of the Constitution of PNG
Section 5(3)(b) of the Crimes Compensation Act 1991
Section 19 of the Criminal Code

Counsel:		

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

11th April, 2022

1.	REI AJ:  The accused was indicted on 12th of November 2021 at Vanimo National Court of Justice, on a charge that on the 19th of December 2019 he did dangerously drive a motor vehicle along the Vanimo Wassan Road and caused the death of Sandra Samartha.

2.	The State alleged that the deceased was amongst a group of women on the roadside along Wassan Road running her small market when the accused drove the vehicle so negligently and dangerously that he drove into the group of women and hit the deceased who died on the spot.

3.	It is also alleged by the State that the accused was heavily drunk at the time the accident happened whose actions amount to the offence of dangerous driving causing death under Section 328(2) & (5) of the Criminal Code.

ARRAIGNMENT

4.	The indictment and facts of the case were read out to the accused in open Court and was asked to enter a plea.

5.	He entered a plea of guilty to dangerous driving causing the death of Sandra Samartha on the 19th of November 2019 at Vanimo/Wassan Road, Vanimo, West Sepik Province.  This plea was consistent with the admissions of the accused in the record of interview.

VERDICT

6.	Based on the plea of guilty, the accused was found guilty of the charge and convicted of the charge of dangerous driving causing death.

ANTECEDENTS

7.	Miss. T. Aihi for the State submitted that the prisoner had prior conviction by the District Court on the 31st July, 2018 and fined a sum of K3,000.00 in default 7 months imprisonment.

ALLOCUTUS

8.	In allocutus, the prisoner said sorry to the Court for the offence he committed and also said sorry to the relatives of the deceased for the loss and suffering caused to them resulting from his dangerous driving and sought for leniency in his sentence.

MITIGATING AND AGGRAVATING FACTORS

9.	The mitigating factors include the guilty plea of the prisoner which saved time and costs for this Court.

10.	It has given time to this Court to consider and adjudicate on matters that are before this Court which have been outstanding for quite some time.

11.	He expressed genuine remorse and sought for leniency.

12.	Against the mitigating factors are the prevalence of this offence, and a life was lost.

EVENTS LEADING TO THE ACCIDENT

13.	Submissions were made by Ms. T. Aihi for the State that the prisoner had been drinking alcohol prior to the accident.

14.	In the record of interview the prisoner in answer to Q.24 said that he did not realise the vehicle he was driving was off the road and hit two (2) ‘bed’ markets injuring two (2) women.

15.	In his answers to Qs, 26, 27 and 28 of the record of interview, he admitted that after the accident, he was in a state of shock and shortly after, he drove to the Vanimo Police Station and reported the matter.

16.	Those admissions clearly show that the prisoner was heavily drunk resulting in him loosing proper management and control of the vehicle he was driving and did not even know that he had been involved in an accident. 

17.	He was so grossly negligent that he did not even know of what had then happened – an accident causing injuries to two (2) woman and another losing her life in an unceremonious way not forgetting that it was the 19th of December 2019, a few days before the Christmas festivities.

18.	I have perused the sketch of the Wassan Works Road where this motor vehicle accident happened and note that the prisoner had to carefully negotiate a slight bend of the road, veer clear of the roadside market stalls to avoid the accident and that he had ample time and space to do so.  There was no on-coming traffic.

19.	Yet the prisoner who possesses a class 6 driver’s licence – refer answer to Q16 of the record of interview and has got almost 20 years of driving experience behind him – refer answer to Q18 of the record of interview, did not exercise due care and attention.

20.	In answer to Q25, the prisoner admitted he has had a previous accident but did not give any details of it.

SENTENCE – SECTION 328(2) & (5) OF THE CRIMINAL CODE

21.	Section 328(2) & (5) of the Criminal Code summarily provide that a person who causes the death of another person resulting from his negligent management and control of a motor vehicle on a public highway shall be sentenced to a term of imprisonment for not more than 10 years.

22.	Because of the prevalence of this crime, custodial sentence is the only effective way of deterrence – Public Prosecutor -v- Willie Moke Soki [1977] PNGLR 165.

23.	Lord Goddard said in Whittal -v- Kirby [1942] KB 194, (at 203):

“The offence of dangerous driving is one of a serious character.  A man should certainly not be convicted of that offence unless the court is completely satisfied that he has so driven as to endanger the public.  If he has, he has put the lives and limbs of others of His Majesty as subjects in peril and deserves severe punishment, and it is difficult to understand how any court can consider this as other than a serious crime.  I cannot believe that such an offence as this is one which should ever be dealt with under the Probation of Offenders Act.  I agree that the words of the Act are very wide.  The court can have regard to the character, antecedents, age, health or offence was committed.  Character, antecedents, age, health or mental condition really have nothing to do with such an offence as driving to the danger of public, and it must be seldom indeed that extenuating circumstances can be found for it.”

24.	In Sheldrick -v- The Queen [1960] Tas SR (NC), where Burbury CJ said (at 3):
“that in the case of a serious case of dangerous driving I think it is the duty of the trial judge to enforce a term of imprisonment as a deterrent to others … those who drive in a manner dangerous to the public must, in my view, expect to go to gaol for this offence, however irreproachable their characters may be … It is a type of case where the reformatory aspect of punishment that I think little relevance. That is to say, the individual circumstances of the offender are subordinate to the necessity in the public interest of imposing a gaol sentence to deter dangerous drivers.”

25.	Motor vehicles were brought to this country after World War II and up to the 1970s, there were relatively no motor vehicle accidents.

26.	But in the 1970s till now, accidents causing serious bodily injuries and death have become prevalent as such the remarks of Lord Goddard made in 1942 in (Supra), the matter of Whittal -v- Kirby (Supra), the remarks of Burbury CJ in Sheldrick -v- The Queen (Supra) are somewhat prophetic to this country.

27.	I say this because of the exponential increase in road accidents in Papua New Guinea as evidenced by the number of cases reported in this matter, as such deterrent sentence is required.

28.	In the case of Public Prosecutor -v- Sima Kone [1979] PNGLR 294, the Supreme Court over-turned a non-custodial sentence and replaced it with a custodial sentence of 18 months.  It then held 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.”

29.	The Supreme Court, in that case made reference to and noted the case of Whittal -v- Kirby  (Supra).  In following that case, the Supreme Court also said:

“… 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 …”

30.	The Supreme Court then went ahead and said 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 …”

31.	This kind of offence has exponentially increased since 1970s hence its prevalence.

32.	As an example, it was reported in the daily newspaper The National on 7th April 2022 that in 2021 alone a total of 265 motor vehicle accidents occurred in Papua New Guinea the main causes of which are dangerous driving a motor vehicle at high speed and drink driving.  This case involves dangerous driving causing death because of drink driving. 

33.	The cases referred to me by both Ms. T. Aihi and Mr. P. Moses show that the Courts have imposed sentences of 10 months to 5 years most of which were wholly suspended or partly suspended.  The defence Counsel referred me to the following issues:
		
⃰⃰	The State -v- Alois Mindipi (2020) N8239 (12.02.20)
⃰	The State -v- Papen (No.2) PGNC 58; N3639 (21/05/09)
⃰	The State -v- Yosi (2016) PGNC 160; N6348 (11 July 2016)
⃰	The State -v- Nepo [2016] PGNC 10; N6178 (12 February 2016)
⃰	The State -v- Tobiyala [2016] PGNC 213; N6417 (9 July 2016)
⃰	The State -v- Walia [2019] PGNC 328; N7961 (12 July 2019)
⃰	The State -v- Richard Faringuma; CR No. 268/2020

The State referred me to:

⃰	The State -v- Mindipi (2020) PGNC 53 N8239
⃰	The State -v- Ondu (2014) PGNC 136 N5747
⃰	The State -v- Tobiyalal (2016) PGNC 213 N6417
⃰	The State -v- Alphonse Raphael (1979) PGNC 58 PNGLR 47

34.	The most important features of this accident are that the prisoner was obviously drunk, he did not know where he was driving to and did not take reasonable steps to avoid an accident although he had the time and/or space to have done so.

35.	He is a person who comes from the area where he was driving along and was familiar with the stretch of road he was driving along as he has often done in the past.

36.	Worst feature is that he has had an accident previously for which he was charged and found guilty and yet he did not learn from that experience.

37.	He is a matured and married man but failed to exercise responsibility in this instance.

38.	While it is appreciated that he pleaded guilty and is a married man with a family of five (5) children, I cannot understand why he continues to be irresponsible in the driving or management of motor vehicles on public highway knowing very well that he has a family to maintain.  That public safety is at stake.

39.	The prisoner must be held responsible for his own actions and must be accountable for that.  The Pre-Sentence Report speaks favourably for him.  But it is no assistance to him in the light of the prevalence of this offence as is the ruling of the Supreme Court in the Public Prosecutor -v- Sima Kone (Supra).

40.	If a man is to continuously breach the law by way of repeat offences, the law must come down hard on him.

41.	Both Counsels have submitted that a sentence of 3 years be imposed.  In all the circumstances of this case, the prisoner should in my opinion be sentenced to jail for three (3) years.

42.	As such the prisoner is convicted as charged and is hereby sentenced to imprisonment for a term of 3 years.

43.	Given the fact that he has already paid K18,000.00 as compensation as reported in the Pre-Sentence Report, he showed remorse and pleaded guilty, in the exercise of my discretion under Section 19 of the Criminal Code, I suspend the whole of the sentence upon the following terms:

(i)	he shall be of good behaviour bond for 3 years;
(ii)	he shall not drink any alcoholic beverages during the term of his suspended sentence;
(iii)	he shall pay compensation of K5,000.00 to the family of the deceased within 12 months from the date hereof in accordance with Section 5(3)(b) of the Crimes Compensation Act 1991;
(iv)	he shall not harass or intimidate the family of the deceased in anyway;
(v)	his driver’s licence is suspended for 3 years;
(vi)	shall report to the Probation and Parole Office between the hours of 9:00 am – 3:00 pm every Wednesday throughout the term of the suspended period;
(vii)	bail monies of K1,000.00 be refunded and be paid to the relatives of the deceased as part payment of the sum of K5,000.00 ordered herein; and
(viii)	should the prisoner breach any of these conditions he shall be arrested and sentenced to serve the whole of the suspended period.

Public Prosecutor: Lawyer for the State	
Public Solicitor: Lawyer for the Defendants