Public Prosecutor v Jenkinson [2000] VUSC 52; Criminal Case No 012 of 2000 (8 September 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

Criminal Jurisdiction
CRIMINAL CASE No. 12 of 2000

PUBLIC PROSECUTOR

-v-

JOHN SINCLAIR JENKINSON

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Coram: The Hon. Justiceunabek J, Acting Chief Justice

Counsel: Mr. Less John Napuaty for the Public Prosecutor
Mr. John Malcolm for the Defendant

SENTENCE

The defendant, John Sinclair Jenkinson, is charged with the following offences:

Count 1: Unintentional harm causing damage to the body of another person resulting in death, contrary to Section 108(c)of the Penal Code Act of Vanuatu [CAP 135].

Count 2: Driving away after causing an accident, contrary to Section 17 of the Road Traffic (Control) Act [CAP 29].

The defendant pleaded guilty to both charges initially. Subsequent to written concerns and observations expressed by the Court on 7 September, 2000, the prosecution formally withdrew the offence as charged in Count 2.

The defence, then, maintains the guilty plea of the defendant, as charged, in Count 1 but on the basis of negligence.

The prosecution’s summary of the facts is as follows:

On the 7 July, 2000 at 7.30pm, a road accident occurred on Mele Road. The truck, driven by the defendant, hit the deceased victim, Paul George, on his right side of the road.

Before the accident, the defendant attended a party function at Irririki Island Resort. He then drove one of his work mates to his place at Black Sands and on his way back he hit the defendant. The victim deceased drunk kava and walked to his home. The sketch plan showed that the point of impact was 1 meter in the road of the right side of the defendant’s driving way. It shows also that from the point of impact evidenced by broken pieces of glasses, the victim deceased was projected about 4 meters into the bush. The defendant then stopped his vehicle and looked on the place where he hit the deceased and drove home. In the early hours of the morning on that day, he was arrested by Police Officers and was brought to Police station. The victim deceased body was found and brought to hospital. The doctor declared the victim Paul George was dead. (A death Certificate was attached). The defendant is a New Zealand Citizen of 56 years old. He works as the foreman of Fletcher Company in Vanuatu and he has no previous convictions.

The following mitigating factors were submitted on behalf of the defendant:

The defendant is in the Supreme Court for the First time and pleaded guilty. At the time of the accident, the defendant stopped but had no idea that he had hit somebody. There was no blood on the car so he believed he hit on something but not on a person.

The defendant is of 56 years old. He is married and has 5 children. He is currently employed by Fletcher Company. He drove for 40 years without any accident. Some testimonial references were produced to this effect. He is a family man and gained respect from his employers. He spent his time and money to the communities where he worked.

If the Court will impose fine, then, arrangements can be made through Fletcher Company.

The defendant was arrested and held in custody. He had consumed two (2) cans of beer at the party function before the accident.

The area where the accident happened was extremely dark. The deceased victim drunk kava and walked one (1) meter out of the side of the road. There is no pavement.

Compensation will be paid and arrangement is done. Defence counsel informed the Court that he had arranged for the Law Firm of George Vasaris and Co. to represent the family of the deceased victim. Beside that, the defendant paid for the deceased’s funeral.

The defence submitted that there was no suggestion of intention, malice. It was a pure accident. The defence said, the appropriate sentence will be payment of fine. The only issue for the Court, it is put by the defence, was whether the imprisonment should be imposed not on the basis of intention but rather as a deterrent for other drivers in the road.

Section 108 of the Penal Code provides:

“No person shall unintentionally cause damage to the body of another person, through recklessness or negligence, or failure to observe any law.

Penalty: (a)…

(b)…

(c) if the damage so caused results in death, imprisonment for 5 years.”

Section 109 of the same Act says (to the extent that it is relevant).

“A person shall be deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases-

(a) …

(b) …

(c) …

(d) …

(e) if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.”

Section 6(4) of the Penal Code Act [CAP 135] provides:

“A person shall not be guilty of a criminal offence if he is merely negligent, unless the crime consists of an omission. A person is negligent if he fails to exercise such care, skill or foresight as a reasonable man in his situation should exercise.”

The facts of this case show that the unintentional harm causing damage to the body of another person resulting in the death of the deceased victim, was due to the negligent driving of the defendant on the night of 7 July 2000.

Under section 108 of the Penal Code, negligent act is not an intentional act but an act where a failure to exercise care, skills and foresight as a reasonable man in the defendant’s situation should exercise. Put it another way.

The requirements for negligent driving causing death under Section 108(c) of the Penal Code is that the defendant fails to exercise such care, skills or foresight as a reasonable man in his situation should exercise in the manner of his driving.

I have had opportunity to hear and consider submissions of the prosecution and the defence.

The defence counsel assisted the Court by providing copies of the Supreme Court (Vanuatu) judgments of guilty verdicts on similar situation- offences. But no copies of any sentence on similar offences were produced to the Court. The defence counsel indicated, however, that in similar offence-situation, the Supreme Court (Vanuatu) imposes fine penalties. This submission was put on the basis of parity in terms of sentencing.

As a matter of sentencing principle, I have no difficulty in understanding and applying it on case to case basis.

However, there are times when due to the evolution of the society, the progressive standard of the development of the country in general and in particular fields, such as for example improvements of the road infrastructure etc…, the sentencing exercise needs to be commensurate to the high level of risk placed on the road users and the high duty of care, skill or foresight on the road users such as drivers driving on the public road in avoiding injury or causing death to other road users or even bystanders on the side of the road.

An immediate imprisonment sentence is appropriate to serve as a deterrent to the offender and to the community at large by taking some extra care, skills and foresight in the use of public road.

Parliament intended that the sentence in this type of offence will increase depending on the circumstances, that is the reason why the maximum penalty imposed by law is 5 years imprisonment (section 105(c) of the Penal Code).

The sentence in this case warrants an imprisonment sentence for the following reasons:

The defendant, Jenkinson, fails to exercise such care, skills or foresight a reasonable man in his situation should exercise in the manner of his driving on the night of 7 July, 2000:

1. When he drove by night and failed to see the deceased on the road;

2. When he disregarded whether he hit something or a person on the road;

3. When there is an element of alcohol contributing to Jenkinson’s negligence.

These are aggravating factors leading to an imprisonment sentence as the appropriate penalty in this case.

The next question is, then, for how long?

The sentence to be imposed in such circumstances would be 12 months imprisonment.

However, after assessing all detailed mitigating factors put on behalf of the defendant, I conclude that the appropriate sentence I am on the point to impose is 8 months imprisonment.

I therefore, order that the defendant, John Sinclair Jenkinson, shall be sentenced to 8 months imprisonment and with immediate effect.

Defendant has 14 days to appeal.

DATED AT PORT-VILA, this 8 DAY of SEPTEMBER, 2000

BY THE COURT

Vincent Lunabek J
Acting Chief Justice