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State v Kibikibi [2024] PGNC 174; N10822 (24 May 2024)

N10822

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1496 OF 2023

BETWEEN
THE STATE

AND
SONNY KIBIKIBI
Offender

Popondetta: Makail, J
2024: 16^th, 21^st & 24^th May

SENTENCE – Plea – Guilty – Dangerous driving causing death – Aggravating and mitigating factors considered – Guilty plea – Cooperation with police during investigations –First time offender – Remorsefulness – Compensation – Loss of life – Offender driving at high speed – Loss of control of motor vehicle – Statutory limit of compensation of K5,000.00 – Purpose of compensation – Purpose of punishment – Personal and public deterence – Criminal Code – Sections 19 & 328(2)&(5) – Criminal Law (Compensation) Act, 1991 – Section 5(3)(b)

Cases Cited:
Goli Golu v. The State [1979] PNGLR 659
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Eric Papen (No 2) (2009) N3639
The State v. Mero Jim Goroa (2010) N4175
The State v. Beven Hoivo (2012) N5157
The State v. Keving Jiki (2013) N5379
The State v. Jerry Javingut (2015) N6016
The State v. Kupa Nepo (2016) N6178
The State v. Martin Taro (2018) N7510
The State v. Willie Walia (2019) N7961
The State v. Bernard Boski (2020) N9706
The State v. Richard Fairinguma (2021) N9096
The State v. Leo Afikae (2022) N9985
The State v. Sam Paul Kami (2024) N10724

Counsel:
Mr J Done, for State
Mr E Yavisa, for Offender

SENTENCE

24^th May 2024

1. MAKAIL, J: The offender pleaded guilty to, and was accordingly convicted of one count of dangerous driving causing death of one Peter Paharipa contrary to Section 328(2)&(5) of the Criminal Code.

Brief Facts

2. On arraignment, he pleaded guilty to the following facts, on 15 April 2023 the offender was driving a motor vehicle a Toyota Landcruiser open bank bearing registration number BDD-811 at Agenambo in Sohe District, Northern Province to pick up and transport bags of betelnuts to Popondetta. In the motor vehicle was the deceased Peter Paharipa and other passengers. He drove the motor vehicle towards Kikiri beach along the Kokoda Highway.

3. According to witnesses the offender was drunk when they reached Koipa village and stopped on the side of the road and argued with the crew of the motor vehicle the deceased Peter Paharipa. After arguing, they continued towards Popondetta. As the offender drove passed Samba village, he lost control of the motor vehicle on the loose gravel and the motor vehicle veered towards the right lane, and back towards the left lane and ran into the bush and overturned. The passengers including the deceased were thrown off the motor vehicle. The passengers were rushed to Popondetta General Hospital for medical treatment. The deceased was admitted to the hospital and died three days later from the injuries received from the motor vehicle accident.

Prescribed Penalty
6. According to Section 328 of the Criminal Code, the offence of dangerous driving causing death carries a maximum penalty of five years term of imprisonment. The maximum penalty is reserved for a worst case: Goli Golu v. The State [1979] PNGLR 659.

7. Section 19 of the Criminal Code also confers discretion on the Court to impose a penalty less than the prescribed maximum penalty. In deciding whether the offence falls into the worst category or one where a lesser penalty might be appropriate to impose, each case must be considered on its own peculiar facts and circumstances: Lawrence Simbe v. The State [1994] PNGLR 38.

Allocutus

8. The offender expressed remorse for his actions to the Court. He pleaded for a non-custodial sentence because he is the sole breadwinner for the family. He has been in custody for one year and one month.

Antecedent Report

9. The State tendered an antecedent report. There are no prior convictions relating to the offender in the antecedent report.

Pre-Sentence Report

10. On the offender’s application, the Probation Services has provided a pre-sentence report. The report speaks well of the offender. He expressed remorse and regret the offence. The report supported a non-custodial sentence.

11. In addition, it stated that the employer of the offender paid food and live pigs worth K8,000.00 and cash of K6,940.00 to the family of the deceased as compensation and funeral expenses.

Personal details

12. In addition, his counsel outlined his personal details as follows, he is 22 years old and comes from Vivia village in Rabaraba village, Milne Bay Province. He is married to a local woman from Northern Province, and they have a one-year-old child. He comes from a family of nine, six males and three females. He is the seventh child. His mother is deceased, and father is old. He completed Grade 8 at Didiar primary school and attended Rabaraba Vocational School where he undertook mechanical trade course. Given his trade, he was employed by Apo Oro Planters to drive and service its motor vehicles used in the betelnut trade business. He resides at Road 5 Sorovi with his uncle. He is a member of the Seventh Day Adventists Church.

Mitigating Factors

13. It is common ground between the parties that the offender’s plea for leniency is supported by him pleading guilty, cooperation with the police during investigations, being a first-time offender, and his remorsefulness.

Aggravating Factors

15. Against those, the offence is aggravated by a loss of life, the offender drove dangerously and recklessly at high speed, accident occurred on a public road where he lost control and the motor vehicles veered off the road, overturned and the deceased was injured and later died. Additionally, the offence is prevalent. Finally, liquor was involved.

Compensation
16. As to compensation in The State v. Paul Sam Kami (supra) the Court observed at [16] to [19] of the judgment:

“16. The prime objective of criminal law and criminal sanctions is to punish the offender for the wrong committed as opposed to compensation. Compensation is a means to restore peace and harmony between the offending party and the injured party. Under Section 5(3)(b) of the Criminal Law (Compensation) Act, a statutory limit of up to K5,000.00 is fixed for that purpose.

17. However, it has been the case that the offending party has paid monetary compensation over and above the statutory limit of K5,000.00 at the discretion of the Court under Section 5(3) of the said Act. Whether a sum over and above the statutory limit may be considered as an extenuating circumstance is open to debate but it is the case here that a sum of K10,000.00 was paid to the deceased family.

18. This is where the parties are divided. The offender maintained that he has paid compensation to the deceased’s family while the children of the deceased led by eldest son denied receiving the money. The latter claiming that out of K10,000.00, K5,000.00 was for funeral expenses and the balance was given to the deceased brother and work colleagues. There appears to be no serious contest to the latter’s claim.

19. On a strict application of the purpose of compensation as one of restoring the injured party to the original position as far as money can do, it is not a complete compensation because the children of the deceased who depend on his support for daily living and education received nothing from the K10,000.00 that was paid by the offender.”

17. In the present case, it is not disputed that the employer for the offender paid food and live pigs worth K8,000.00 and cash of K6,940.00 to the family of the deceased as compensation and funeral expenses. This factor operates in favour of the offender, but is not determinative of the final sentence.

Sentencing Range

18. The sentencing trend for this offence based on past cases such as The State v. Eric Papen (No 2) (2009) N3639, The State v. Mero Jim Goroa (2010) N4175, The State v. Beven Hoivo (2012) N5157, The State v. Keving Jiki (2013) N5379, The State v. Jerry Javingut (2015) N6016, The State v. Kupa Nepo (2016) N6178, The State v. Martin Taro (2018) N7510,The State v. Willie Walia (2019) N7961, The State v. Bernard Boski (2020) N9706 and The State v. Richard Fairinguma (2021) N9096, The State v. Leo Afikae (2022) N9985, and recently in Wewak in The State v. Sam Paul Kami (2024) N10724 starts from custodial to non-custodial sentences and between 2 to 4 years term of imprisonment.

19. The offender’s counsel submitted given the presence of mitigating and aggravating factors, a term of imprisonment two to three years is appropriate. The State does not contest the proposed term of sentence.

Prevalence of offence

20. Additionally, there is no question that based on the cited reported cases above and many more not referred to in the judgment, the offence is prevalent nationwide and in this province. This will attract a strong deterrent sentence.

Recklessness

21. In The State v. Sam Paul Kami (supra) the Court observed at [24] to [26] of the judgment:

“24. Another relevant factor is the cause of the motor vehicle accident. One of the causes is the driver driving at high speed and losing control of the motor vehicle at some point before the accident. Another is the driver being drunk and driving before losing control of the motor vehicle resulting in the accident. A failure to stop at a give way point to allow on coming motor vehicle with right of way to pass is another cause of accidents.

25. This case falls into the first group of cases because the offender was driving at high speed before colliding with a second motor vehicle and its impact cause his motor vehicle to run off the road and into the deceased’s stationary motor vehicle. The impact of the collision caused the deceased’s stationary motor vehicle to flip several times before landing on its head resulting in the death of the deceased.

26. While it is accepted that the offender had no intention to cause the death of the deceased because he blamed it on fatigue due to driving for long hours before the accident, his own admission of driving at high speed will be held against him. It was reckless driving as opposed to heedlessness or inadvertence: The State v. Karo Gamoga [1981] PNGLR 443 and The Public Prosecutor v. Sima Kone [1979] PNGLR 294.”

22. In the present case the offender pleaded guilty to the charge based on the facts he was arraigned. The facts included being seen by witnesses drunk and driving. This is a factor operating against the offender and adds to the gravity of the offence.

Deterrence

23. The purpose of criminal law is to punish the offender. Additionally, the punishment handed out by the Court must have the deterrent effect on the offender and the public. The sentence imposed by the National Court in past cases ranged from custodial sentences to non-custodial sentences. The National Court accepted payment of compensation and imposed suspended term of sentences in some cases. In The State v. Sam Paul Kami (supra) at [27] to [29] of the judgment, the Court observed that:

“27. Wholly suspended sentences were imposed in The State v. Kupa Nepo (supra) due to poor road condition which caused the accident. Even wholly suspended sentences were imposed in cases where the offender was drunk and driving. Significant sum of money was paid in compensation to the deceased’s family appeared to persuade the Court to wholly suspend the sentences as was the case in The State v. Bernard Boski (supra) and The State v. Richard Fairinguma (supra).

28. However, it is a useful reminder that in criminal proceedings, the statutory limit for monetary compensation is K5,000.00 under Section 5(3)(b) of the Act (supra). A monetary compensation more than K5,000.00 must not be automatically treated as a special extenuating circumstance favouring the offender such that the offender, in the eyes of the public, for whom the State represents, would view the offender as escaping punishment. Because the criminal law is to punish the offender, and compensation should not be used to relieve the offender from being punished for the commission of the offence.

29. The punishment must correspondence to the offence and where there is loss of life due to reckless driving, as in this case, it must be reinforced that the sentence must have that deterrent effect on the offender and the wider community. A life is lost for eternal perpetuity and the children who were once supported and dependent on the deceased find themselves without one. The people of the province of East Sepik feel and expressed similar sentiments as those of deceased’s children. Life onwards for them must and will be without the deceased. There is room for the offender to make restitution to the children of the deceased, at the very least to compensate them for the loss of their father. This will be in the form of cash money and in addition to the sum of K10,000.00 paid initially. The Court will fix a sum of K5,000.00.”

24. The above sentiments are adopted here. “A life is lost for eternal perpetuity.” The family members of the deceased find themselves without the deceased and no amount of remorse and compensation with replace the deceased. The offender will live with the full knowledge that by his reckless driving.

Pre-Trial Custody Period

25. Further, the offender’s counsel submitted that the offender spent one year and three weeks in pre-trial custody. This period should be deducted from the term of sentence fixed by the Court. The Court upholds the offender’s counsel’s submissions and order that the period of pre-trial custody of one year and three weeks shall be deducted from the term of sentence fixed by the Court.

Suspension of sentence

26. The offender’s counsel submitted that the term of sentence fixed by the Court be wholly suspended, and the offender be placed on good behaviour bond or probation. The State does not contest the offender’s submission for a wholly suspended sentence. The Court upholds the offender’s counsel’s submissions in part and order that the balance of the term of sentence is partly suspended. A partly suspended term of sentence is appropriate to take into account the fact that a life is lost because of the reckless driving of the deceased.

Conclusion

27. In conclusion, the offender is sentenced to a term of imprisonment of three years in hard labour. From this, a period of one year and three weeks is deducted for pre-trial custody, leaving a balance of one year, eleven months and one week to serve. Because of the offender’s guilty plea, cooperation with the police during investigations, being a first-time and being remorseful, a term of one year is suspended from the balance of one year, eleven months and one week. This leaves a balance of eleven months and one week for the offender to serve. The term of one year is suspended on the conditions as set out in the final order hereunder.

Order

28. The final terms of the order of the Court are:

1. The offender is sentenced to a term of imprisonment of three years in hard labour.
2. A period of one year and three weeks is deducted from the term of sentence of three years for pre-trial custody.
3. A term of one year is suspended on the following conditions:

(a) The offender shall be placed on good behaviour bond for the duration of the suspended sentence.

(b) The offender shall report to the Probation Officer on the first Monday of each new month.

(c) The Probation Officer shall prepare a report to submit to the Court at the end of each six-month period on the progress of compliance with the above conditions and rehabilitation of the offender.

(d) If the offender fails to comply with or breaches any of these conditions of suspension, he shall be arrested and returned to prison to serve period of the suspended sentence of 1 year and 6 months.

4. The offender shall serve the balance of eleven months and one week in hard labour at Biru Corrective Institution forthwith.

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Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender