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State v Samson [2016] PGNC 156; N6347 (21 June 2016)

N6347

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1331 OF 2014

THE STATE

V

PHILIP SAMSON

Porgera: Auka, AJ

2016: 15^the & 21^st June

CRIMINAL LAW – Sentence – Particular offence – Guilty plea – Dangerous driving causing death – Two (2) years imprisonment less time spent in pre-trial custodial term – Sentence fully suspended – Strength of each mitigating factors does not warrant Order for disqualification of drivers licence – Criminal Code – S. 328 (2) (5), S. 330 (2) (a) and S.19

Case Cited:
The State v. Nepo (2016) N6178
The State v. Joseph Kalasim, CR 1405 of 2014 Unreported Judgement dated 17^th March, 2015

Counsel:
Mr. Joe Waine, for the State
Mr. Robert Bellie, for the Accused

DECISION ON SENTENCE

21^st June, 2016

1. AUKA, AJ: The accused was committed to stand trial by the District Court at Porgera on 27^th October, 2014. On 15^th June, 2016 he pleaded guilty to an indictment containing one Count of dangerous driving causing death under S.328 (2) (5) of the Criminal Code.

2. The maximum punishment for this offence is 5 years imprisonment. The Court has a general discretion to impose a lesser sentence with or without other forms of punishment enumerated in S.19 of the Criminal Code.

3. In addition it is open to the Court to order that the offender be disqualified from holding a driver’s licence pursuant to S. 330 (2) (a) of the Code.

4. The brief facts of the case were that on the morning of 20^th June, 2014, the accused was driving a PMV Coaster 25 Seater Bus Reg No. P0147 along a public road namely Anawe road along Okuk Highway past Porgera Mine Site. He loaded student passengers to be dropped off at their school in Porgera town. He was driving dangerously namely speeding excessively, and as he was descending a corner the front brake failed to function. In trying to manoeuvre the vehicle to safety, he ran into Celina Meke, a six year old girl, who was at the side of the road and caused her death. She died instantly.

5. On his address on Sentence, the accused said he was normal in driving the vehicle. It was a sudden incident that involved in killing the child. He was thinking of the students Passengers and was speeding to drop them off and realised that brake failed. He said after the incident he surrendered to police and was detained for 1 month. He was released on K1000.00 cash bail. He said he paid victim’s relatives with 80 live pigs and K16, 000.00 in cash as compensation. He said he breached the law and as a result he was charged. He asked the Court to have mercy on him on Sentence. He also expressed remorse to the victim.

6. Mr. Bellie of Counsel for the accused submitted that the accused is 37 years old and is from Paiam Village, Porgera District, Enga Province. He is engaged with a girl and making arrangement to get married soon. His father is deceased and the mother is still alive. He comes from a family of 5 brothers and 1 sister. He is the 5^th born in the family of 6 children. He only completed grade 10 at Porgera High School. He has been a PMV driver for more than 15 years. At the time of incident, he was a licenced PMV driver. Mr. Bellie submitted that a Sentence of 3 years and fully suspended with conditions would be the appropriate sentence in the present case.

7. Mr. Bellie urged the Court to consider in accused’s favour the following mitigating factors;

1. The accused pleaded guilty and saved Court’s time
2. The accused is a first time offender
3. The accused co-operated with Police
4. Has reconciled with relatives of the deceased
5. He has paid compensation which exceeded the reasonable amount normally paid.
6. He was not drunk
7. The degree of dangerous driving was not high
8. The incident was to some extent caused by a sudden defected brake
9. The vehicle was registered and insured
10. He was a licenced driver.
    

8. Mr. Bellie referred the Court’s attention to the National Court Sentence matter in the case of State v. Nepo (2016) N6178. Accused pleaded guilty to two (2) counts of dangerous driving causing two (2) deaths. His Honour Cannings J imposed 5 years imprisonment which was wholly suspended on condition. In addition, the Court ordered that accused be disqualified from holding or obtaining driver’s licenced for the period of 5 years. The order was made pursuant to S. 330 (2) (a) of the Criminal Code.

9. Mr. Waine of Counsel for the State did not make submission on Sentence.

10. The trend of Sentencing on dangerous driving causing death cases depends entirely on the facts of each case. Beside Nepo’s case, I refer to the case of CR. 1405 of 2014, The State v. Joseph Kalasim, Unreported Judgement dated 17^th September, 2015 where the accused pleaded guilty to the charge of dangerous driving causing death. His Honour Geita J imposed a sentence of 2 years imprisonment which was wholly suspended on conditions. In addition the Court ordered that accused be disqualified from holding drivers licence for 3 years.

11. I have considered the accused’s expression of remorse during allocatus. I have also considered Counsel’s Submission in Mitigation on Sentence and I consider that this is not a worst case of dangerous driving causing death.

12. I consider the following mitigating factors in favour of the accused;

1. He pleaded guilty and saved Court’s time,
2. He is a first time offender,
3. He Co-operated well with Police and admitted the offence,
4. He was not under the influence of alcohol,
5. The degree of dangerous driving was not high,
6. He was a licenced driver,
7. The vehicle was registered and insured,
8. The incident was to some extent caused by a sudden defected brake,
9. Has paid 80 live pigs and K16, 000. 00 cash as compensation,
10. Has reconciled with relatives of the deceased.
    

13. Taking into consideration all the particular circumstances of the case, the trend of Sentencing in the above two cases and the mitigating factors in favour of the accused, I consider a sentence of 2 years imprisonment. The Sentence shall be wholly suspended on condition that he shall enter into a recognizance to keep the peace for 2 years.

14. As there are many mitigating factors which I consider are of weight, I decline to make an order for the accused to be disqualified from holding his driver’s licenced pursuant to S.330 (2) (a) of the Criminal Code.

The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused