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Police v Jaiwan [1999] PGDC 6; DC52 (27 April 1999)

Unreported District Court Decisions

[1999] PNGDC 18 - POLICE V WILLIAM JAIWAN

[1999] PNGDC 18

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 11 OF 1999

POLICE (Informant)

v

WILLIAM JAIWAN (Defendant)

Kimbe

S Lenalia PM

27 April 1999

20 April 1999

CRIMINAL LAW�Particular Offence�Dangerous Driving Causing Death�Plea�Sentence�Criminal Code (Ch262) s328(5) .

CRIMINAL LAW�Dangerous Driving Causing Death�Causing death by reversing�No knowledge of victim at back�Victim aged 5 years�Appropriate sentence�Imposition of fine.

Cases referred to:

Karo Gamoga v The State [1981] PNGLR 443

R v Guilfoyle [1973] 2 All ER 844

The State v Albert Monja [1987] PNGLR 447

Acting Public Prosecutor v Nitak Mangilonde Tanganis [1982] PNGLR 299

The State v Rex Lilu [1988-89] PNGLR 449

Legislation

Criminal Code (Ch262) s328(5), s330

Criminal Law (Compensation) Act 1991 s3

Customs Recognition Act s4

Representation

Counsel/Representative:

Informant: Sgt. Sukena

Defendant: Accused in person

Lawyers/Representative:

Informant: Police Prosecution Division

Defendant: Accused in person

27 April 1999

S LENALIA PM:

N1>[1]����� William Jaiwan was committed to stand his trial in the National Court on a charge of manslaughter. Mr Justice Jalina remitted the file to the District Court with direction to have the matter registered in the Grade V Court to be dealt with in the District Court on a lesser charge. The matter had since been adjourned from time to time awaiting filing of an election certificate. By 5 March an election certificate was filed with an amended information charging Dangerous Driving Causing Death under s328(5) of the Criminal Code. The matter had since been adjourned with the hope that the defendant would secure services of a private lawyer. On resuming by 20 this month, the court inquired with the defendant if he had engaged a lawyer. In response the defendant said he had no lawyer and wanted to proceed without one.

N1>[2]����� Upon arraignment the accused pleaded guilty to one count of dangerous driving causing the death of an infant Wilma Role aged 5 at Gigo Primary School in 10 September 1998. This is an offence contrary to s328(5) of the Criminal Code.

N1>[3]����� The facts of the case are as follows. The defendant had driven his vehicle up to the back of Gigo Primary School to unload a bag of uncooked singapore taro. He parked his vehicle with the ignition on and thereafter unloaded. After he had unloaded, he got back into the truck and started to reverse intending to go through the same route where he had driven up. The defendant kept reversing passed Mr Role's house to the mango tree then stopped after realising the deceased mother picking the deceased up. By the time he came out to see the victim, she was already dead. The vehicle involved in this action is a Mitsubishi Canter Flat Top which registration number is KAB263 owned by the Kimbe Bay Shipping Agencies Pty Ltd. Soon after the accident the vehicle was mechanically examined by a Works Department Plant Inspector concluded that apart from the missing left and right rear vision mirrors the vehicle was in mechanically sound condition.

N1>[4]����� The post mortem examination gives a summary of the doctor's findings as follows,

N2>��������� Loss of scalp from the right temporal and pariental bone measuring some 15cm-20cm.

N2>��������� Fractured and displaced right temporal and pariental bone protruding outwards.

N2>��������� Lacerated right meninges exposing the right hemisphere (brain) and intra cranial haemorrhage.

N1>[5]����� I had the benefit of hearing the accused in allocutus. The defendant said, he is now very sorry about what he did but at the same time he did not mean to cause the accident. The defendant also submitted that as a father, he can feel and experience the suffering suffered by the parents of the deceased. That he had paid over K3,000.00 in cash plus food stuff both from shops and market vegetables. He has also met costs of funeral expenses.

N1>[6]����� In reply, the prosecutor submitted that compensation under s3 of the Criminal Law (Compensation) Act 1991 is an additional responsibility apart from any formal punishment that may be imposed by the Court. I was also referred to s330 of the Code as an additional factor available at the discretion of the court which relates to either absolute or conditional cancellation of a driver's license.

N1>[7]����� The law in relation to dangerous driving causing death in Papua New Guinea distinguishes between cases of heedlessness and recklessness. The former is normally punished by imposition of a fine and the latter by a custodial sentence.

N1>[8]����� This principle was adopted in Karo Gamoga v The State [1981] PNGLR 443 see page 447-448 per Andrew J (see also R v Guilfoyle [1973] 2 All ER 844). The latter and English case establishes that the distinction in the context of causing death by dangerous driving in cases of momentary negligence is punishable by a fine and cases involving deliberate risk taking would usually call for custodial sentence.

N1>[9]����� In the instant case, it is my view that it is a case of heedlessness. The defendant had driven through the same street and he well knew that beside the school is the teachers residential area and caution should have been taken to avoid accidents. It has been repeatedly held that in order to secure a conviction there must be a fault on the part of the driver.

N1>[10]��� The facts reveal that, after the defendant got back into his vehicle he did not check the back of his truck. It is desirable to take precaution and more particularly when the defendant was to reverse through a street between the school and the teachers residential grounds. The street whereupon the accident occurred passes through between the back of the school fence and the teachers houses and any reasonable driver ought to properly check to see if the street was completely clear before commencing the reverse process.

N1>[11]��� In favour of the defendant I take the following mitigating factors into consideration. The defendant pleaded guilty. A guilty plea is genuine credit, The State v Albert Monja [1987] PNGLR 447. The defendant has a previous good history of driving. He has no criminal records of any prior convictions. On aggravation, I take into consideration that a life was lost forever and whatever penalty the court will pronounce today will not help to bring that precious life back.

N1>[12]��� Under the Criminal Law (Compensation) Act 1991 where compensation has been paid or is being proposed to be paid is not punishment for an offence, but it may be paid in addition to any other punishments imposed on a prisoner. The Supreme Court said in Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299 that compensation cannot be used as punishment. In many other National Court cases for instance in The State v Rex Lilu [1988-89] PNGLR 449, customary compensation may be considered as mitigation but not a substitute for the formal punishment.

N1>[13]��� So, in the instant case the defendant claims he has paid compensation. This must only be taken on when consideration is made as to what penalty must be imposed on the defendant. The few authorities on customary compensation that I have referred to reinforce s4 of the Customs Recognition Act custom may be taken into account in a criminal case in determining those sections mentioned in s4(a)-(e).

N1>[14]��� The maximum penalty for this offence is a term of 5 years imprisonment in hard labour. In sentencing the defendant I have taken into account all the mitigating factors mentioned in favour of the defendant together with aggravating circumstances, I now sentence the defendant in the following terms:

N1>[15]��� COURT ORDER

N2>(1)����� Defendant is convicted and fined a sum of K800.00, in default fourteen (14) months imprisonment with hard labour.

N2>(2)����� Defendant is given 14 days to pay his fine. He is also entitled to be refunded his bail monies, the sum of K300.00.

N2>(3)����� The defendant shall also pay an additional compensation the sum of K1,000.00 to the relatives of the deceased. Given one (1) month to pay.

N1>[16]��� Sentence accordingly.