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State v Ambure [2012] PGNC 384; N5171 (24 October 2012)

N5171

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 700 OF 2011

BETWEEN

THE STATE

V

STEVEN AMBURE

Popondetta: Toliken AJ
2012: 07th August, 24th October

CRIMINAL LAW – Sentence – Dangerous driving causing death – Deceased's movement on middle of road confuses prisoner - Momentary panic by prisoner – Defective vehicle – Defects known to prisoner – Appreciable substantial cause of collision with deceased – Criminal Code s 328 (2)(5).

CRIMINAL LAW – Sentence – Plea of guilty – First offender – Expression of genuine remorse – Payment of compensation – Extenuating circumstances – Deceased's indecisiveness in crossing road confused the prisoner, a contributing cause - Not a case of recklessness or heedlessness – Starting point of 2 years - Sentence of 18 months less pre-trial custody period – Partly suspended

Cases Cited

Public prosecutor v Sima Kone [1979] PNGLR 294
Gamoga Karo v. The State [1981] PNGLR 443
Goli Golu v. The State [1988] PNGLR 193
The State v. Aina Uwantuna (1989) N726
The State v Philip Iparu (2005) N2995
The State v Daniel Soma [2006] PGNC 71
The State v. Eric Papen (No. 2) (2009) N3639

Counsel:

M. Ruarri and D. Kuvi, for the State
A. Ninkama and E. Sopane, for the Prisoner

SENTENCE

24th October, 2012

1. TOLIKEN AJ: Steven Amburi you pleaded guilty before me on 07th August 2012 to one count of dangerous driving causing death contrary to Section 328(5) of the Criminal Code Ch. 262. The indictment charged that:
   

"STEVEN AMBURI of PEROMBA, Popondetta in the Oro Province stands charged that he on the 11th day of August 2010 at Popondetta in Papua New Guinea drove a vehicle on a road dangerously and thereby caused the death of one JOHN FRANK BOUKA."(sic.)

2. I deferred my sentence to 22nd of August but due to the fact that judges were recalled to Waigani by the Chief Justice, I wasn't able to do that. I do that now.
   

BRIEF FACTS

3. On 11th August 2010, between 1.00p.m. and 1.30p.m. you were driving a Mitsubishi Canter Truck registration No. P. 123A up the main Street, in Popondetta town. You came to the intersection with Killerton Street and turned left towards Kokoda Highway but as you were doing that you drove straight into the deceased who was crossing the main road (Killerton) from the Renbo Supermarket towards the Provincial Treasury Office on the other side of the road. The vehicle's bumper hit the deceased on his right hip. The deceased fell down on the road and the front left wheel of the vehicle ran over him. You then reversed the vehicle running over the deceased dragging him towards the opposite lane before the vehicle ran into the drain on the side of the road. The deceased was immediately rushed to the hospital where later that afternoon died from the injuries sustained.
   
4. According to a Mechanical Report by the Acting Plant Inspector of the Department of Works the vehicle was mechanically defective at the time of the accident. It had very ineffective brakes, three smooth tyres and poor engine performance. The inspector opined that these contributed to the accident. And of course you knew about these defects.
   

ANTECEDENTS

5. You are 42 years of age and are married with 4 children aged 21, 18, 15 and 9 years. The oldest is doing Grade 9 at Martyrs Secondary School while the rest are attending Agenambo Primary School. You are an adherent of the Anglican faith and an active parishioner of Agenambo Parish. Prior to the commission of this offence you were employed as PMV driver. Currently though, you support your family through subsistence farming. You have no formal education and have no prior convictions.
   

ADDRESSES ON SENTENCE

(i) Prisoner

6. In your allocutus you apologised to the court, lawyers and the deceased's relatives. You said you were sorry for your offence and said that you did not mean to commit it. You said that on the date in question you had parked at the Price Right Supermarket loading passengers. You drove out and proceeded up to the Killerton Road and turned left towards Kokoda just in front of the Treasury Office just as the deceased was crossing the road from the Treasury Office. You said that the deceased started moving back and forth and this confused you. That was when you collided into the deceased. You said that if the deceased had stopped you would not have bumped into him. You said that you have never been in court before, be it the Village Court, District or the National Court. You told the court that you started driving on 19th July 1990. You also said that you have been in custody for one month and two weeks before you were granted bail. You also told the court that you have paid compensation to the deceased's relatives. This consisted of K4000.00 in cash, five (5) pigs and a truck-load of food items. Finally you pleaded for leniency.
   

(ii) Defence Counsel

7. Your lawyer submitted to the court that there are four issues that the court needs to consider on sentence. These are:
   
   • (i) Whether your case is a worst type of dangerous driving causing death
     
   • (ii) What the appropriate head sentence is?
     
   • (iii) Whether a sentence equal to or less than the starting point should be imposed
     
   • (iv) Whether the sentence should be wholly or partially suspended.
     
8. Counsel then took the Court through the law and a long list of cases which he said should guide the Court in arriving at an appropriate penalty for you. He conceded that the offence of dangerous driving causing death is serious but submitted that each case has to be treated according to its own facts and circumstances. He submitted that your case does not fall within the worst category of cases. He said that you were in the process of turning the vehicle when the deceased was already in the middle of the road. Thinking that the deceased would remain in the middle of the road, you swung the vehicle to the left lane to avoid hitting him but he suddenly walked towards the left lane. You made another attempt to avoid the deceased by making a big turn towards the right lane. Counsel submitted that you were confused by the deceased's movement and you acted absentmindedly in trying to avoid hitting the deceased. Unfortunately the vehicle hit the deceased which resulted in his death.
   
9. Counsel submitted that there are certain factors that must mitigate your offence. These are:
   
   1. You pleaded guilty to the offence
      
   2. You are a first offender
      
   3. You co-operated with the police
      
   4. You paid some K6000 compensation (cash and kind) to the deceased's relatives.
      
   5. You showed genuine remorse during allocutus and apologised to the relatives of the Deceased.
      
10. Counsel, also submitted that there are extenuating circumstances in your case. These are:
    
    1. When you were in the process of turning the vehicle, the deceased was already in the middle of the road.
       
    2. You quickly tried to avoid hitting the deceased by turning to the left lane but the deceased moved over to the left lane. You turned again to the right to avoid the deceased.
       
    3. The deceased was too slow in crossing the road and to be on the safe side and as a result the vehicle hit the deceased.
       
    4. You did not know that the deceased was under the vehicle and you reversed and the tyre ran over the deceased.
       
    5. The deceased was also negligent when he crossed the road and he was not quick enough to make a decision to be on the safe side of the road.
       
11. Counsel, however, conceded that there are aggravating factors amongst which are that you reversed the vehicle and it rolled over the deceased the second time after he was hit and that you knew that the vehicle had mechanical defects at that time.
    

iii) State Counsel

12. Mr. Ruarri for the State, while submitting that the offence is serious, agreed with much of your lawyers submission including his discussion on the case of Philip Iparu which he said fell into the worst case category. He submitted though that a deterrent sentence ought to be imposed to deter you personally and others as well. He proposed a two-year term.
    

THE LAW

13. Section 328 (2)(5) of the Criminal Code provides for the offence of dangerous driving and causing death and the subsequent penalty in the following terms:
    

328. Dangerous driving of a motor vehicle.

(1) ...

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

Penalty: Subject to the succeeding provisions of this section—

...

...

(3) ...

(4) ...

(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.

14. As correctly submitted by your lawyer the maximum penalty is always reserved for the worst category of cases. Goli Golu v. The State [1988] PNGLR 193. It must, however, be borne in mind that the purpose of sentencing in cases of dangerous driving causing death is public as well as personal deterrence, so much so that the Supreme Court had said that the necessity for public deterrence may only be overridden by circumstances of a particular case in the most exceptional of cases. Public Prosecutor v Sima Kone [1979] PNGLR 294. The Supreme Court confirmed this position in Gamoga Karo v. The State [1981] PNGLR 443 but said that this did not remove the courts' discretion in distinguishing 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 and imposing appropriate sentences within its sentencing powers. It recognized also that there will be cases where there is no "reprehensible features normally associated with dangerous driving cases" and for which imprisonment may be inappropriate.
    

SENTENCING TREND

15. Let me now consider the sentencing trend by this court in the recent past. I am grateful for the cases cited to me by your lawyer.
    
16. In The State v. Aina Uwantuna (1989) N726, the prisoner was found guilty of dangerous driving causing death. He was driving a large FUSO Highway truck along the Highlands Highway near Aviamp out of Mt. Hagen when he strayed across to the wrong side of the road and collided head-on with a PMV, a 15 seater ISUZU bus. In the collision the truck pushed the bus backwards for 22 metres. Twelve (12) passengers in the PMV were killed. The prisoner was sentenced to two (2) years with hard labour.
    
17. In The State v Philip Iparu (2005) N2995 (18 October 2005), the prisoner pleaded guilty to one count of dangerous driving causing the deaths of four persons. He was unlicensed, inexperienced and driving under the influence of alcohol when he lost control of the vehicle he was driving and plunged 30 meters down a cliff killing four of his seven passengers instantly. He was a first time offender and had paid compensation to his victim's relatives but Kandakasi J. noted that alcohol abuse and driving under the influence was prevalent and viewed this as a worst case. He imposed a sentence of 3 years.
    
18. In The State v Daniel Soma [2006] PGNC 71 the prisoner pleaded guilty to one count of dangerous driving causing the death of a pedestrian. He was under the influence of alcohol and was speeding with a vehicle that he knew had a defective steering wheel. Cannings J. fixed a starting point of 30 months but imposed a sentence of 4 years after taking into account that the following aggravating factors of the offence – the prisoner was drunk, was speeding, aware of the defects, no good reason for speeding, no other cause for speeding, recklessness, no reconciliation and not a youthful offender. His Honour also took into account that the prisoner pleaded guilty, was a first offender, had cooperated with the police, the vehicle was registered and insured, no other person was killed and had expressed remorse.
    
19. In The State v. Eric Papen (No. 2) (2009) N3639 the prisoner pleaded guilty to one count each of unlawful use of a motor vehicle, dangerous driving causing death and dangerous driving causing grievous bodily harm. The victims were passengers in the vehicle which they had previously stolen. The prisoner and his passengers were all drunk. He was a first time offender. His Honour Makail J. imposed a sentence of 3 years for dangerous driving causing death.
    
20. Your lawyer also referred me to the sentencing guidelines set by his Honour Kandakasi J. in The State -v- James Gurave Guba (2000) N2020 but these were made in respect of unlawful use of a motor vehicle, hence, are not relevant in your case.
    

YOUR CASE

21. Let me now consider the circumstances of your case. Firstly I find the following mitigating factors in your favour. You pleaded guilty, are a first time offender, you cooperated with the police, were remorseful and you have manifested this by paying compensation to the deceased's relatives. There is no evidence that you were speeding or driving at a speed higher than what is normal on a busy town street.
    
22. I also find in your favour what I accept are extenuating circumstances. I find that yours was a case of momentary panic. As you were turning left onto the Killerton Road you were suddenly confronted by an equally confused pedestrian in the deceased who was trying to cross the road. His decision to suddenly turn back after he had been in the middle of the road confused you and in momentary lapse of attention you swerved to avoid him but the vehicle hit him on his hip throwing him down on the bitumen. Then in the confusion you reversed the vehicle and dragged the deceased some 5 meters to the right side of the road. So in a way the deceased contributed to this confusing situation though this should not in any way detract from the fact that your own action or inaction was a substantially appreciable cause. But you were not reckless or heedless. I believe that what I have said above contributed to the fatal accident to a large extent.
    
23. Now against all of that, I find one major aggravating factor against you. You knew that the vehicle you were then driving was defective mechanically, that it had three smooth tyres and an under-performing engine. All of these contributed very significantly to the accident.
    
24. As I said you were not speeding and had it not been for these defects you could have easily avoided the deceased. In your Record of Interview you said that you had to press the brakes several times before the vehicle could stop. To that extent you are guilty of a certain degree of negligence and this I also hold against you. Finally I also find the prevalence of this offence in the country and here in the Oro Province as an aggravating factor against you. So what would be an appropriate sentence for you?
    

APPROPRIATE SENTENCE

25. I do agree firstly that your case does not fall within the worst case category. Rather it falls below the less serious of cases. Of the cases surveyed your case has a couple of similarities with Daniel Soma (supra) except that you were not drunk and were not speeding. You both knew that the vehicles you were driving were defective and you both hit a pedestrian. Daniel Soma got a term of 4 years.
    
26. So considering the circumstances of your case I fix a starting point of 2 years. Now having regard to your mitigating and extenuating factors I accordingly impose a head sentence of 18 months. One month and two weeks (6 weeks) will be deducted for time spent in custody. But should any of this be suspended?
    

WHETHER TO SUSPEND SENTENCE

27. Sentences for dangerous driving causing death serve primarily to deter others and offenders themselves. This offence has increased dramatically over the years and our public roads have become killing fields for innocent road users. While some of the tragic accidents can be attributed to careless and heedless driving by drivers, some, like in your case are caused by defective and un-roadworthy vehicles. In most cases defects are known to drivers and owners alike but nothing gets done to fix these defects and this has unfortunately resulted in loss of life or grievous bodily harm.
    
28. So if this sentence is to serve its purpose then you must either serve the full term or part of it. Otherwise the court will be derogating from its duty to not only uphold the law but also to protect road users. I am therefore of the view that you must serve a portion of your sentence. The balance will be suspended and you shall enter into your own recognizance to be of good behavior for a period that will be specified.
    
29. You will therefore serve 6 months of your sentence. The balance of 10 months and two weeks is suspended and you are to enter into your own recognizance with a cash surety of K200 to be of good behavior for a period of 12 months which shall run from the day you will be released from gaol. Your bail will be converted to surety for good behavior.
    

Orders accordingly.

The Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyers for the Prisoner