The State v Daniel Soma (2006) N4480

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 August 2006
• Citation: (2006) N4480
• Docket Number: CR NO 496 of 2006
• Court: National Court
• Year: 2006
• Judgement Number: N4480

Full Title: CR NO 496 of 2006; The State v Daniel Soma (2006) N4480

National Court: Cannings J

Judgment Delivered: 23 August 2006

N4480

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 496 0F 2006

THE STATE

V

DANIEL SOMA

Buka: Cannings J

2006: 17, 18, 23 August

SENTENCE

CRIMINAL LAW – Criminal Code, Division V.4, Offences Endangering Life or Health – Section 328, dangerous driving of a motor vehicle – sentence on plea of guilty – 4 years.

A man pleaded guilty to dangerous driving causing death. He was drunk and speeding and the vehicle he was driving had a steering problem of which he was aware. He ran off the road and killed a pedestrian.

Held:

(1) The starting point for the offence of dangerous driving causing death is 30 months imprisonment.

(2) Mitigating factors are: vehicle was registered and insured; no more than one person killed; gave himself up; co-operated with police; pleaded guilty; expressed remorse; first offender; he was assaulted.

(3) Aggravating factors are: he was drunk; speeding; aware of defect; no good reason for speeding; no other cause of collision; recklessness; no reconciliation; not a youthful offender.

(4) A sentence of four years was imposed; two years of which was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Karo Gamoga v The State [1981] PNGLR 443

Public Prosecutor v Sima Kone [1979] PNGLR 294

Public Prosecutor v Willy Moke Soki [1977] PNGLR 165

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

The State v Alphonse Raphael [1979] PNGLR 47

The State v Philip Iparu (2005) N2995

Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville

CR – Criminal

DCJ – Deputy Chief Justice

J – Justice

N – National Court judgments

No – number

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court Judgment

SCRA – Supreme Court Criminal Appeal

v – versus

PLEA

A man pleaded guilty to dangerous driving causing death and the following reasons for sentence were given.

Counsel

R Luman, for the State

P Kaluwin, for the accused

1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a man who pleaded guilty to dangerous driving causing death under Sections 328(2) and (5) of the Criminal Code. He faced the following indictment:

Daniel Soma of Suhin, Buka, Bougainville, stands charged that he on the 16th day of October 2004 at Poposoko … drove a motor vehicle on a road, Buka Highway, dangerously and thereby caused the death of Naomi Surei.

CONVICTION

2. The accused pleaded guilty to the following facts:

3. He was driving a Nissan Navara utility along the Buka Highway at 6 o’clock in the morning in the direction of Buka town. Approaching Poposoko he lost control of the steering and the vehicle ran off the right side of the road. The vehicle struck a young woman, Namoi Surei, and her mother, who were off the road. Naomi Surei was taken to hospital and died of injuries caused by the vehicle hitting her. Her mother survived. The accused was driving at high speed and dangerously and he was drunk. The vehicle had a problem with its steering, which he knew about prior to the incident.

4. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I apologise for what I have done especially to the family of the deceased. Because of this incident, I will not drive a vehicle again. I did not intend anything like this to happen.

OTHER MATTERS OF FACT

7. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State’s extra resources that would have been committed to the case if a trial were necessary.

Depositions

· The offender was assaulted by onlookers soon after the incident.

· The offender made admissions to the police and co-operated in the investigation.

Allocutus

· He expressed remorse.

PERSONAL PARTICULARS

8. The offender is aged 39 and is married with seven children. His parents are deceased. He is a member of the United Church.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse. He submitted that a sentence of two years would be appropriate and part of it should be suspended.

SUBMISSIONS BY THE STATE

10. Mr Luman submitted that this was a serious case as a life has been lost. He could very well have been indicted for manslaughter, which has a maximum sentence of life imprisonment. A strong deterrent sentence is warranted, as drunken drivers are a menace. It is not appropriate to suspend the sentence. There is no evidence that the offender has reconciled with the deceased’s relatives.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what should the head sentence be?

· step 4: should the pre-sentence period in custody be deducted from the term of imprisonment?

· step 5: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. The indictment was presented under Sections 328(2) and (5) (dangerous driving of a motor vehicle) of the Criminal Code, which state:

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

(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.

13. The maximum penalty is therefore five years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence).

15. In the present case I have been unable to locate a suitable precedent, so I will use the mid-point of 30 months as the starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

16. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be at or near the starting point.

17. The list is based on the sentencing considerations identified in the following cases:

· Public Prosecutor v Willy Moke Soki [1977] PNGLR 165, Supreme Court, Frost CJ, Prentice DCJ, Williams J;

· The State v Alphonse Raphael [1979] PNGLR 47, National Court, Pritchard J;

· Public Prosecutor v Sima Kone [1979] PNGLR 294, Supreme Court, Prentice CJ, Saldanha J, Greville–Smith J;

· Karo Gamoga v The State [1981] PNGLR 443, Supreme Court, Andrew J, Pratt J, Miles J;

· The State v Philip Iparu (2005) N2995, National Court, Kandakasi J.

18. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of...