James Warep v The State (2009) N3579

• Jurisdiction: Papua New Guinea
• Judge: Makail AJ
• Citation: (2009) N3579
• Docket Number: CRA NO 29 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3579

Full Title: CRA NO 29 OF 2008; James Warep v The State (2009) N3579

National Court: Makail AJ

Judgment Delivered: 6 Janaury 2009

N3579

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CRA NO 29 OF 2008

BETWEEN

JAMES WAREP

Appellant

AND

THE STATE

Respondent

Minj & Mt Hagen: Makail AJ

2008: 14th November & 2009: 06th January

CRIMINAL APPEALS - District Court appeal - Appeal against sentence - Dangerous driving causing grievous bodily harm - Two separate offences - Guilty plea - Severity of sentence - Head sentence of 12 months imprisonment in hard labour imposed - Sentencing is an exercise of discretion - Prevalence of offence - For personal and public deterrence - Fair and reasonable sentence imposed - Appeal dismissed - Criminal Code - Sections 19, 328(2)&(5), 420 & schedule 2.

Cases Cited:

Kenny Lau -v- The State [1990] PNGLR 191

The State -v- Philip Iparu (2005) N2995

Karo Gamoga -v- The State [1981] PNGLR 443

The Public Prosecutor -v- Sima Kone [1979] PNGLR 294

The Public Prosecutor -v- Willy Moke Soki [1977] PNGLR 294

Counsel:

Appellant in person

Mr J. Waine, for Respondent

6 January, 2009

JUDGMENT

1. MAKAIL AJ: I heard this appeal at Minj National Court against sentence imposed by the Mt Hagen District Court and reserved my decision until 28th November 2008 but due to other pressing matters, I have not been able to reach a decision until today. This is my decision.

2. In this appeal, the Appellant represents himself and appeals the head sentence of 12 months imprisonment in hard labour imposed by the Mt Hagen District Court on 19th September 2008 on his guilty plea for dangerous driving causing grievous bodily harm contrary to section 328(2)&(5) of the Criminal Code. The District Court deducted 2 months, leaving a balance of 10 months for the Appellant to serve.

BRIEF FACTS

3. The facts giving rise to this appeal and on which the Appellant pleaded guilty to before the District Court are as follows; on 4th July 2008 between 7:00 am and 7:30 am, the Appellant drove a PMV Isuzu NPR truck bearing Registration No P: 0953C down Murmur Pass along Tambul road towards Mt Hagen town. There were 11 passengers in the PMV truck. The victim was one of the passengers.

4. As it was in the morning, the road was covered with fog, hence reducing the visibility of the road. The Appellant drove down the hill at third gear and mistook a section of the road as being a straight one when it had a curve further on. When approaching the curve, he realized his misjudgment at the last minute and quickly applied brakes to slow down but the PMV truck swayed and skidded across the road and almost ran into a drain. In order to avoid the drain, he swung it onto the right hand side of the road, causing it to run off the road and over turned. It rolled a couple of times before it landed at the foot of the hill.

5. The victim sustained very serious injuries to her neck and spinal cord and was hospitalized at Mt Hagen General Hospital. The other passengers including the Appellant also sustained injuries. Fortunately, no one died.

GROUNDS OF APPEAL

6. In the Notice of Appeal filed on or around 24th September 2008, the Appellant relies on the following grounds of appeal:

“1. First time offender not considered.

2. Assets and extended family to take care.

3. Need to be present/ organize compensation to 11 victims.

4. Need to be present to assist victims pursue insurance claims.

5. Seek N/C orders to impose monetary fine due to above”.

THE LAW

7. The offence of dangerous driving causing grievous bodily harm is found in section 328(2)&(5) of the Criminal Code. It is one of those offences where it can be tried as an indictable offence before this Court or summarily before the District Court by virtue of section 420 and schedule 2 of the Criminal Code at the election of the Public Prosecutor. In this case, the Appellant having being charged by the police for this offence was tried before the District Court where he pleaded guilty and was sentenced to 12 months imprisonment in hard labour but 2 months was deducted leaving 10 months to serve.

8. Section 328(1),(2)&(5) states as follows:

“328. Dangerous driving of a motor vehicle.

(1) For the purposes of this section -

"driving a motor vehicle on a road or in a public place dangerously" includes the driving of a motor vehicle at a speed or in a manner dangerous to the public, having regard to all the circumstances of the case, including -

(a) the nature, condition, and use of the road or public place; and

(b) the amount of traffic that -

(i) is on the road or in the public place at the time; or

(ii) might reasonably be expected to be on the road or in the public place;

"public place" -

(a) includes every place of public resort open to or used by the public as of right and any field, ground, park, reserve, garden, wharf, pier, jetty, market, passage or any other place for the time being used for a public purpose or open to access by the public by the express or tacit consent or sufferance of the owner, whether or not it is at all times so open; but

(b) does not include a track that is used for the time being as a course for the racing or testing of motor vehicles, and from which other traffic is excluded at the time.

(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 -

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..

(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”.

GROUNDS 1 - 5 OF NOTICE OF APPEAL

9. I will consider all the grounds from 1 to 5 of the Notice of Appeal together because they raise the central issue of whether or not the District Court did take into account the mitigating factors in favour of the Appellant in its decision. If so, was it within the District Court’s discretion to have imposed a fine or a suspended sentence on the Appellant?

10. The Appellant says that he pleaded guilty to the charge before the District Court and is a first offender. At the time he drove and had the accident, he was not under the influence of liquor. He also says that he did not collide with any other vehicle. It was purely an accident as he run off the road and the victim who happened to be one of the passengers sustained injuries in the accident.

11. He also says that he co-operated fully with the police by admitting the offence. He and his relatives paid an undisclosed amount of compensation to the victim. In the circumstances, he says that the head sentence of 12 months (less 2 months and balance of 10 months) imprisonment is too excessive. He also submits that the District Court should have imposed a fine rather than a head sentence of 12 months in light of the mitigating factors operating in his favour. As the District Court did not, it fell into error.

12. Counsel for the State did not seriously oppose the submissions of the Appellant for the sentence to be quashed and substituted for a fine. Instead, he submits that as the Appellant had pleaded guilty to the offence, a first offender and co-operated with the police, an appropriate sentence would have been a suspension of the 10 months and a cancellation of his licence as well as disqualification to hold a licence for a period of time.

13. It must be remembered that sentencing of an offender is an exercise of discretion by the Court by virtue of the Court’s powers conferred by the Criminal Code or other statutes. In this case, the District Court was asked to decide a sentence by exercising its powers under sections 328(2) &(5) and 19 of the Criminal Code.

14. It should also be noted that according to the information laid by the police against the Appellant in the District Court, the police charged the Appellant under section 328(2) and section 328(5) of the Criminal Code. This means that, first, the Appellant was charged with dangerous driving per se. See section 328(2) of the Criminal Code. This is an offence of its own. It is an offence if the driver drives a motor vehicle dangerously. What is dangerous driving is determined from the circumstances of a particular case, but some of the factors that make driving dangerous are; driving at excessive speed or driving with overload of passengers or cargoes. A classic example of a case of dangerous driving is where the driver drives at excessive speed and runs off the road but sustains no injuries or dies.

15. Secondly, as the Appellant was also charged under section 328(5) of the Criminal Code, it means that the Appellant was charged with causing grievous bodily harm to another person. See section 328(5) of the Criminal Code. This is also an offence of its own. It covers cases where, as a result of a driver’s dangerous driving, a person or group of persons get injured. The victims can be passengers, pedestrians or bystanders. The end result of combining both offences is that, it becomes an offence of “dangerous driving causing grievous bodily harm”. This is where the police add on the second charge...