Public Prosecutor v Kawai [2009] VUSC 90; Criminal Case 35 of 2007 (2 October 2009)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 35 of 2007

PUBLIC PROSECUTOR

V

HERVE KAWAI

Mr. Molbaleh for the Prosecutor
Mr. Kausiama for the Accused
Mr. Herve Kawai

SENTENCING

Herve Kawai appear for Sentence, I wish to acknowledge the presence today of family members of the prisoner and family members of the deceased. A loss of any life is very sad, and the Court is unable to put you back into the position you were prior to the accident.

Legal system has served you poorly with the delay that has been associated with the resolution of this charge. It was a incident from 2005 and It at should have been resolved well before now. When one commits a wrong such as the defendant driving recklessly causing death, he can do no more then plead guilty and accept responsibility.

This is a serious charge and the penalty that you should in my view be imposed is an actual term of imprisonment that is not suspended. There is here very poor driving but, there is here a factor which is not present in some cases that is knowledge of the alcohol intake of the defendant by those who chose to drive on the back of his vehicle, there is sadness for all when the loss of life flows from a spur of the moment decision like this.

In addition to the sadness we all feel at the lost of the life unnecessary as it is, there is a requirement for the Court to make it clear. Drinking, driving, alcohol, or drugs involved and the loss of life or serious injury means an actual term of imprisonment will be imposed.

There is a clear requirement to denounce such conduct to deter others and protect the community.

I record in this incidence that I have read the Pre-Sentence report considered the written submissions of the prosecutor and carefully listened to Mr. Kausiama’s submissions on behalf of Kawai. There is consideration to be given to the willingness of the defendant to undergo the customs ceremony although I understand it has been rejected by some family members, that must be a cause of sadness. A custom ceremony enables you good people share you loss and to accept that we as humans make mistakes and that in humility and kindness we need to accept another indication of remorse, acceptance of responsibility and contribution and willingness to rectify a very clear wrong.

That requires on the part of the family bearing the lost a rush of human kindness to understand that there loss is also the defendant’s loss and his close family members.

I deal with the issue of compensation in this way, having given both counsel the opportunity to discuss and consider it. There is an order that the prisoner pay 250.000vt, that i.e 5.000vt per month the first payment in a month’s time.

Term of imprisonment that is suggested by both counsel in my view would normally be appropriate. but I need to record, that in my view there is unacceptable institutional delay, I am unable to change that but I believed it is every body’s interests that I ameliorate that, so I endeavour to do that in this way I reduce the term of imprisonment that suggested by both counsel to a term of 18 months imprisonment. For the reasons that I have obliviously indicated that acknowledges the plea of guilty and the institutional delay,

I suspend that term of imprisonment exercising my descretion on the grounds that are set out I think is in section 57 for a term of 2 years. I place the defendant or the prisoner on supervision for 2 years with the special conditions contained in the report, acknowledging as I do that he is already taking remedial steps in respect of his affection or affliction for alcohol, a main driver in this offending.

I would normally impose a term of 200 hours of community work, but one needs to bear in mind, and I deal with issue of disqualification at the same time, is that if I increase the community work of 200 hours and if I disqualify for a period to 2 years which would normally be appropriate it means that it would interfere with his employment and the sources of funds that pays the compensation. For that reason I reduce the term of community works from 200 hours to 100 hours, so he is sentenced to 100 hours to community work. I reduce what I would regard as as a proper term of disqualification in the region of 2 years to that of 3 months so he is disqualified from holding or obtaining a drivers license for 3 month from tomorrow which is the 3th of October.

You have 14 days to Appeal my decisions

I hope that with the conclusion of this sentencing that the manner in which your families communicate with one and other you will do so with the willingness to accept that this man has publicly admitted his wrong together with the customs ceremony to remedy that, although this was there were rejected by some, I trust that the blunt instrument of the law is of assistance in bringing this matter to a conclusion. But as we all know those of us who have suffered the loss of a life, we can value that life by all going forward in a spirit which values those of us that are still here and is a proper and good memory of that lost life. Thank you for your attendance.

DATE at Port Vila, at 2th Day of October 2009

J.CLAPHAM
JUDGE