Public Prosecutor v Warsal [1996] VUSC 17; Criminal Case 026 of 1996 (6 September 1996)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT LUGANVILLE/SANTO

(Criminal Jurisdiction)

CRIMINAL JUDGEMENT NO. 26 OF 1996

PUBLIC PROSECUTOR

-VS-

JOHN WARSAL

Coram: Kalkot Mataskelekele - Judge

Clerk: Shirley George

Mr Hillary Toa for the Prosecution

Mr Raynold Liu, Public Solicitor for the defendant

SENTENCE

HISTORY

The accused John Warsal of Hog Harbour East Santo was committed to stand trial by Magistrate Rita Bill Naviti sitting at Luganville on 24 June 1996. He was charged on 7 counts as follows:

Count 1: Causing Death by Reckless Driving contrary to section 12 of the Road Traffic Control Act [CAP.29].

Count 2: Taking Away Vehicle Without Owners Consent contrary to section 52 of Road Traffic Control Act.

Count 3: Driving Without Third Party Insurance contrary to section 41(1) of the Road Traffic Control Act.

Count 4: Driving Without Driving Licence contrary to section 42 of Road Traffic Control Act.

Count 5: Driving Under the Influence of Alcoholic Liquor contrary to section 16 of Road Traffic Control Act.

Count 6: Failing To Stop Upon Police Signal contrary to section 19 of Road Traffic Control Act.

Count 7: Unintentional Harm contrary to section 108(a) of the Penal Code Act [CAP.135]

The accused was arraigned before me on 26 June this year when he pleaded guilty to all the charges except counts 2 and 6. An initial trial date was set down for 22 July. The accused was remanded in custody pending the trial because of the seriousness of the charges, most of which the accused had pleaded guilty to.

Because o prior case engagements of counsel in Vila, the trial date was re-set for 6 August. On that date the accused pleaded guilty to counts 2 and 6.

A summary of the case was made by Mr Hillary Toa on the mentioned date and a list of previous convictions submitted to the count. Mr Raynold Liu spoke for the accused in mitigation.

FACTS

This is a case of an unlicensed and drunken driver who drove a taxi away without the owner's consent which ultimately resulted in an accident which slightly injured the driver and other passengers, and unfortunately cause the death of another youthful passenger.

Mr George Hinge, from North Pentecost is the co-ordinator and a lecturer of the USP subcentre in Luganville. He owned a taxi Toyota starlet Registration No.4208. The taxi was driven and operated by Varean Sale of Maewo residing at Sarakata in Luganville.

On 17 August 1995 in the morning at around 8 O'clock, Varean Sale was at the Mobil Station in Luganville with the mentioned taxi when the accused John Warsal entered the taxi and asked to be driven to the Mango area of Luganville. So Varean Sale drove the accused to Mango area where the accused collected a chain saw.

From Mango, the taxi driver Varean Sale drove the accused to several different places around Luganville including USP subcentre, Bunny Fong Store, Kwang Sing Store, Agriculture Supply store, Saint Michele, Kuvu's Workshop, Wong Sze Sing Hardware, New Look and Valian Store.

At Valian Store, the accused persuaded another man to load some bags of cement into the small taxi.

On the way back to Mango to return the chain saw, the accused forcible grabbed the steering wheel forcing Varean the taxi driven to turn right near the eastern side of Sarakata bridge near the back of Saggitaire store.

When the taxi was near the vicinity of Pastor Paia Poro's house the accused asked Varean to let him drive the car. After some heated discussion between Varean and the accused, the accused got into the driver's seat and drove the taxi away. Before the accused drove off however, Marcel, the owner of the chain saw arrived and removed it from the taxi.

In the meantime Police Constable Alfred Garae and Woman Police Constable Jennifer Warsal saw Varean Sale and Marcel who told them what the accused had done. Eventually PC Alfred Garae and his colleague drove their vehicle to Kwang Sing Store where they caught up with the accused in the taxi Registration No.4208. As soon as the accused saw the police, he drove away quickly.

This was the start of the police chasing the accused. At that point Constables Alfred Garae and Jennifer Warsal contacted and informed Corporal Obi, Senior Traffic Officer who was nearby with other officers on a specific duty assignment.

Corporal Obi Ken and another officer drove in chase after the accused. Both Corporal Obi Ken and the other policeman made statements that the accused drove at high speeds up the Sanma Province Headquarter hill, Chapuis Stadium corner, and at the end of the Chapuis tar-sealed road down to Surrender Bay. The two policeman said that the accused waved to them at the Chapuis Stadium corner and at the end of the Chapuis tar-sealed road he showed a tin of beer. The accused refused to stop ever when the police signalled to him.

Eventually, in his adventures or misadventures, the accused picked up 4 young passengers at Turtle Bay. They were the deceased, Oliver Talvita Lumgar also known as Oliver Sovan, Reynold Atkin, Kilbat Sovan and Godrington Tula. Both Reynold Atkin and Kilbat Sovan made statements to the police saying that they were reluctant to go in the taxi when invited by the accused but they did so because the accused shouted at them and made them afraid.

It was unfortunate that the deceased, who appeared to be the youngest of the four passengers, and the other three allowed themselves to be compelled to do something which they had not intended. On the other hand it seems that the accused was strong willed and persuaded them to accept the ride in the car.

On their travels, the accused drove at high speed through Turtle Bay. The accident that happened was witnessed by Rockclif Avat from Mota who was cleaning Kupu's cattle fence at Turtle Bay. He said he saw a red taxi speeding in the area at the time. Afterwards Rockcliff Avat heard the noise of a vehicle coming from the direction of Hog-Harbour at high speed. he then saw the red taxi travelling on the wrong side of the road. The Taxi, driven by the accused, the moved to its right side of the road an on coming bus which was travelling towards Hog Harbour direction. Mr Rocklif Avut said in his statement to the police that he saw the red taxi skimming the grass on the right side of the road and then it went to the left side or wrong side of the road. At the same time the taxi rolled over and kept rolling several times.

The accused and his passengers were taken to Northern District Hospital by another transport. The deceased Oliver Sovan received the most serious injury as a result of the accident, his cranium or skull was severely traumatised with a fracture to the right skull bone. He also received injury to his right eye socket including a fractured left clavicle or collar-bone. The deceased was unconscious when examined by Dr Heriau on 18 August 1995, and his respiration or breathing was affected. The deceased died while being transferred to Vila Central Hospital by plane. He died following a pulmonary haemorrhage.

Kotringto Tula also sustained injuries a fractured left clavicle (collar-bone), laceration to his left hind-foot, and abrasions over his left scapular region (shoulder region). He was conscious when examined but experienced pain.

Kilbat Sovan received small cuts all around his body but no fractures.

No medical report concerning Raynold Atkin is in the Count file.

The accused John Warsal also made a statement to the police. Amongst other things, the accused said he did not that the police were following him in a car. He also said the accident was caused not lay his trying to avoid the bus, but because he tried to turn around to see what the three sitting behind the taxi were doing with their bottle of wine. This was when he lost control of the vehicle.

Sentence reserved until count has heard and made judgement on compensation claims of family of deceased, Mr George Hinge owner of the taxi, Mr Kotington Tula, Mr Kilbat Sovan and Raynold Atkin.

Sentence: 6.09.96 after Judgement on Civil claim and made pursuant thereto.

Count 1: Imprisonment for 2 years - suspended for 3 years effective from today 06.09.96.

Count 2: Imprisonment for 3 months suspended for 3 years.

Count 3: Imprisonment for 3 months suspended for 3 years.

Count 4: Imprisonment for 1 month, suspended for 3 years.

Count 5: Imprisonment for 3 months, suspended for 3 years.

Count 6: Fine: 10,000vt.

Count 7: Unintentional Harm: 2 months Imprisonment suspended for 3 years.

Prosecution Costs: vt30,000.

DATED at Luganville, this 6th day of September, 1996.

BY THE COURT

Original Sentence signed by:

KALKOT MATASKELEKELE

Judge