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State v Mindipi [2020] PGNC 53; N8239 (12 February 2020)

N8239

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1166 of 2016

THE STATE

V

ALOSIS MINDIPI

Lae: Kaumi J
2020: 06^th & 12^th February

CRIMINAL LAW – Criminal Code Act 1974-Section 328 (1) Dangerous Driving Causing Death-Sentence-Sentencing Guidelines-Plea of Guilty-Dangerous Driving-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial in Custody-Should All or Part of the Sentence be Suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report

CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–Prevalent Offence.

The offender pleaded guilty to one count of Dangerous Driving Causing Death and matter for sentence.

Cases Cited:

Alex Yembi v The State SCR 45 of 2003
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Saperus Yalibakut v The State [2008] SC 890
State v Papen (No.2) PGNC 58; N3639
State v Kotapu(No.2) PGNC 27; N7704
The State v Alphonse Naulo Raphael [1979] PNGLR 47
The State v Gama Deilala CR 474 of 2017 (Unreported and Unnumbered 26/07/17)
The State v. Joseph Muir Kaur; CR80 of 2017 (Unreported and unnumbered judgement of 20/07/17)
The Public Prosecutor v Willy Moke Soke
The State v Bevan Hoivo Toliken. J
Ure Hane v The State [1984] PNGLR 105

Legislation Cited:

Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel

Mr. Joseph Waine, for the State
Mr. Paul Moses, for the offender

12^th February, 2020

SENTENCE

1. KAUMI J: This is a decision on sentence for a man who pleaded guilty of one count of Dangerous Driving Causing Death contrary to Section 328 (1) of the Criminal Code Act Chapter 262.

ISSUE

2. The relevant issue is: what is the appropriate sentence in this case?
   

AGREED BRIEF FACTS

3. On the 19^th of August, 2015, at about 10am on the Yangome Road in Tari, the offender, Aloisis Mindipi bumped and killed Carol Ben.
   
4. The offender was driving a hired Toyota landcruiser LAZ 467 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.
   
5. By driving recklessly and killing Carol Ben, the offender contravened s, 328 (1) of the Criminal Code Act.
   

ANTECEDENT

6. The Antecedent Report provided to the Court by the State states that he has no prior convictions.
   

ALLOCATUS

7. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“I want a suspended sentence. This has been a prolonged case. I would like a Good Behaviour Bond or Probation. Nothing more to say.

OTHER MATTERS OF FACT

8. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution, Saperus Yalibakut v. The State (2008) SC890.

SUBMISSION BY DEFENCE COUNSEL

9. Mr. Moses for the offender highlighted a number of mitigating factors in the matter; his plea of guilt, his payment of Bel Kol payment immediately after the accident, payment of most of the compensation of K35, 600.00 and a lack of prior conviction and urged the court to take these factors into consideration when contemplating the type of sentence to impose.
   

SUBMISSION BY THE STATE

10. Mr.Waine did not make any submissions but left the sentence to the discretion of the Court.
    

WHAT IS THE MAXIMUM PENALTY?

11. In this jurisdiction it is trite law that the maximum penalty prescribed for an offence is reserved for the worst form or a category or offending for that particular offence. Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] 92 and Ure Hane v The State [1984] PNGLR 105.
    
12. Section 328 (1) of the Criminal Code states:
    

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

Penalty: Subject to the succeeding provisions of this section-

On summary conviction- a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.

On conviction on indictment-a fine not exceeding K1, 000.00 or imprisonment for a term not exceeding two years, or both.

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

13. The maximum sentence is 5 years imprisonment. This case is serious as a child lost her life but is not in the worst category of cases as alcohol was not involved.
    

WHAT IS THE STARTING POINT?

14. The proper starting point for Dangerous Driving Causing Death in this case is the midway point of 30 months.
    

WHAT SENTENCE HAD BEEN IMPOSED FOR EQUIVALENT OFFENCES?

15. I will consider the sentencing trends in recent history.
    

The following are National Court sentences for Dangerous Driving Causing Death and Grievous Bodily Harm.

(a) State v Papen (No.2) PGNC 58; N3639 (21/05/09) –The offender was convicted of 3 charges, Dangerous Driving Causing Death, Dangerous Driving Causing Grievous Bodily Harm and Unlawful Use of Motor Vehicle. 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 to be served IHL.

(b)State v Yosi [2016] PGNC 160; N6348 (11 July 2016) – 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.

Briefly 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 tyre 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.

(c) State v Nepo [2016] PGNC 10; N6178 (12 February 2016) – 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 totality 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.

(d) State v Ondu [2014] PGNC 136; N5747 (19 September 2014) – This is a Mendi case presided over by Kassman J in a case involving a charge of DDCD of three men under s. 328 (2) and (5) of the Criminal Code.

The Court imposed a custodial sentence of 3 years for each of the three counts. The sentences were to be served concurrently. The Court emphasized that speed was the major cause of the motor vehicle incident that resulted in the death of 3 innocent men.

(e) State v Tobiyala [2016] PGNC 213; N6417 (9 July 2016) – This is a 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 2 ½ 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.

(f) State v Walia [2019] PGNC 328; N7961 (12 July 2019) – This is another Alotau case presided over by Toliken J which is more recent. 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.

16. I note from the cases above that the sentence range for Dangerous Driving Causing Death is 2 to 3 years and generally the sentence range is 1 to 2 years on a plea of guilty and suspension of these periods have depended on the peculiar circumstances of the matter and with conditions attached.
    

WHAT IS THE HEAD SENTENCE?

17. In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.
    
18. There are a number of mitigating factors in the matter; his plea of guilt, his payment of Bel Kol payment immediately after the accident, payment of most of the compensation of K35, 600.00 and a lack of prior conviction. The payment of the compensation to the relatives of the deceased is a significant factor in the context of the culture and circumstances of the Hela people especially where there was a loss of life and in reconciling the respective clans of both the offender and deceased so preventing the outbreak of tribal warfare and risking the potential for more loss of lives from both sides. The offender complied with his cultural obligations for the betterment of more people.
    
19. The aggravating factors against the prisoner was the death of the victim and his dangerous driving.
    
20. The mitigating factors outweigh those in his aggravation.
    
21. Considering the circumstances of this matter and the sentencing trend in the case the head sentence should not be above the starting point of thirty months, therefore it will be 24 months to be served.
    

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

22. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

23. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.
    
24. I do not deduct any time spent in pre-trial custody.
    

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

25. Suspension of sentence is primarily the discretion of the Court and is stipulated under Section 19(6) of the Criminal Code that after a court has sentenced an offender to a term of years, it may order a portion of the sentence to be served and the remaining sentence to be suspended. The Supreme Court in the case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 when considering suspension of sentence held that suspension was appropriate in three categories:
    • (a) Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.
    • (b) Where suspension will promote the restitution of stolen money or goods.
    • (c) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical and mental health.
26. Cannings, J in State v Raka Benson held that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term.
    
27. The PSR is favourable to the offender because I find that the aggregate results of the inputs are for a suspension of sentence.
    
28. I find that in this case that recommendation for suspension of the sentence by the CBC office here in Tari is substantiated by evidence as per the PSR.
    
29. I have considered the aforementioned factors and decided in the present case to suspend only a part of the sentence as if I was to suspend the entire sentence that would in my view serve the purposes of personal and general deterrence and rehabilitation.
    
30. In this instance the sentence is wholly suspended conditionally.
    
31. I suspend the two year sentence subject to the following conditions:
    • (a) Upon release the offender will keep the peace and be of good behaviour for the period of the suspended portion of his sentence (2 years);
    • (b) The offender shall reside at his residence at Honenda Village, Kupari, Tari-Pori;
    • (c) The offender shall not leave Hela Province without the written approval of the National Court;
    • (d) The offender shall not associate himself with criminals;
    • (e) The offender shall attend his local church for service on every day of worship;
    • (f) If the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. (see Tom Longman Yaul v The State (2005) SC 803)

SENTENCE

32. The orders of the Court are as follows:

Sentence accordingly.
______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender