Public Prosecutor v Kalsong [2011] VUSC 3; Criminal Case 119 of 2010 (15 February 2011)

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

Criminal Case No. 119 of 2010

PUBLIC PROSECUTOR

V

NELSON KALSONG

Coram: Justice D. Fatiaki

Counsel: Mr. T. Karae for the State
Mr. E. Molbaleh for the Defence

Date of Sentence: 15 February 2011

SENTENCE

1. On 1st November 2010 the defendant whilst driving a white Hyundai bus on the main road towards Mele Village collided with a young school boy Joseph Pascal (the deceased) near the turn off to Blacksands. The deceased who was returning home after school, had just alighted from a pick-up truck that had given him and several others school colleagues a lift to the Blacksands crossroad junction and had crossed the road when the bus driven by the defendant collided with him. The deceased was struck on the right side of the body by the defendant's bus. The deceased was rushed to Vila Central Hospital and died later that evening from severe head injuries that he had sustained in the collision.
   
2. The defendant was later arrested, interviewed and charged with Causing Death by Reckless Driving contrary to section 12 of the Traffic [Control] Act [CAP. 29]. The Defendant was committed for trial on 11 November 2010 and on 7 December 2010 the defendant pleaded guilty and was convicted of the offence. Pre-sentence and compensation reports were ordered and have been provided to the Court. The defendant appears today for sentencing.
   
3. I extract the following personal details of the defendant from the pre-sentence report:
   
   • The defendant has recently turned 21 years of age (Dob: 11/02/1990);
     
   • He is single and lives with his parents at Mele Village on Efate;
     
   • He attended Mele Primary School and then Lycée Louis Antoine de Bougainville until year 9 when he lost interest in schooling;
     
   • He is an active member of the Tupuji Magic Futsal Club and is also a singer with the "Jipajiroa" stringband;
     
   • The defendant earns regular income from singing in the stringband, from selling produce from his garden and from driving a bus belonging to his family, for which he receives VT20,000 per fortnight;
     
   • The defendant is a first offender and pleaded guilty at the first opportunity;
     
4. The compensation report also helpfully records the exchange of gifts and other agreements during a custom reconciliation ceremony that took place on 4th December 2010 between the defendant's family and the deceased's family and was witnessed by their respective chiefs and elders.
   
5. The substantial gifts that were provided by the defendant's family included:
   

"1. Ol mat feta - 4 @ VT2,000 = VT8,000

2. Ol mat wool - 10 @ VT2,000 = VT20,000

3. Plain mat - 48 @ VT1000 = VT48,000

4. 20 yard calico - 2 @ VT1,180 = VT2,360

5. 15 yd - 5 @ VT100/yd = VT7,500

6. 4 yd - 8 @ VT100/yd = VT3,200

7. 54 yd - 32 @ VT100/yd = VT64,800

8. Island dress - 11 @ VT1,000 = VT11,000

9. Island shirt - 1 @ VT1,000 = VT1,000

10. Banana - 27 @ VT1,000 = VT27,000

11. Leaf laplap - 2 @ VT200 = VT400

12. Bigfala woman pig - 1 @ VT50,000 = VT50,000

13. Waet faol - 1 @ VT1,000 = VT1,000

14. Basket kumala - 2 @ VT600 ea = VT1,200

15. Basket taro - 2 @ VT500 ea = VT1,000

TOTAL = VT226,460

Ikat wan envelope wetem wan amaon blong mane ikasem VT20,000. Total ovarol blong evri samting ia ikasem amaon blong VT246,460."

6. The defendant's father has also offered to pay VT500,000 as compensation to the deceased's family or to provide a piece of land for the deceased's family to settle on.
   
7. The offence with which the defendant has been convicted carries a maximum penalty of a fine of VT500,000 or 5 years imprisonment or both fine and imprisonment. There is also a liability to disqualification for a maximum period of 5 years. The offence of Causing Death by Reckless Driving is by far the most serious of the driving offences.
   
8. Section 3 of the Penal Code [CAP. 135] also defines "reckless" behaviour in the following manner:
   

"(a) Knowing that there is a risk that an event may result from his conduct or that a circumstance may exist, he take that risk; and

(b) it is unreasonable for him to take it having regard to the degree and nature of the risk which he knows to be present".

9. In this case, on his own admission, the defendant had seen and was aware of the school boys getting off the back of the pick-up truck as he approached the crossroad junction of the road to Blacksands and as a careful and experienced driver, he should have anticipated the real risk or possibility of a school child suddenly crossing the road. He should have reduced his speed and adjusted his driving accordingly.
   
10. In such circumstances, it would be quite unreasonable for the defendant to continue driving at a speed of 50 – 55kmph as if the risk did not exist or, as if there was no traffic on the road, or he was not approaching a dual crossroad junction with the real possibility of traffic emerging from both sides of the road at the same time.
    
11. The defendant's description to the police of how the accident occurred is revealing. He said:
    

"... stret long crossroad long Blacksands, wan pick-up truck we idroppem ol pikinini blong school mo oli crossem road. Mi speed ikam mi luk pikinini mo pikinini iluk mi. Mi ting se bai pikinini ya ino crossem road be me sek we icrossem road. Mi brake olsem ya be ilate tumas mekem se mi bangem small boy ya, mo iadmit long hospital."

Clearly the defendant saw the deceased before he crossed the road and wrongly assumed that the deceased had seen the bus and would not cross the road. That was an imprudent error of judgment that was to prove fatal.

12. The 'point of impact' (POI) on the police sketch plan of the scene clearly shows that the deceased was struck after he had almost completed crossing the road and after he was struck he was carried a distance of some 21 metres before coming to a rest. There are no brake marks shown on the road before the point of impact as might be expected if the defendant had indeed braked as he claims. His front passenger confirms that the defendant swerved to avoid the collision but no mention is made of the defendant braking before the impact. Indeed on the passenger's account the deceased was struck by the rear side of the defendant's bus.
    
13. I accept that the deceased did suddenly cross the road immediately after alighting from the pick-up truck and, without paying any attention to approaching traffic, and thus, himself, contributed to the accident, but, the defendant's speed and driving at the relevant time immediately before the collision was also reckless in all the circumstances.
    
14. The defendant by pleading guilty accepts responsibility for the accident and displays some remorse on his part. Furthermore, a custom reconciliation ceremony has begun to heal the rift between the defendant and the deceased's families and I am obliged to take that into consideration in assessing the appropriate sentence in this case.
    
15. I am acutely aware that nothing I say or do, and no sentence that I may impose, will bring back Jack Pascal, a young boy who had his life and future cut short by the reckless driving of the defendant. I am also aware that the defendant will have to carry that heavy burden for the rest of his life knowing that his driving caused the death of a young boy.
    
16. The defendant also claims that he was chased and assaulted shortly after the accident by several bystanders when he stopped to help the deceased and he lost a tooth and sustained bodily injuries in the assault. That is unfortunate because such actions do lead to driver's who are involved in road accidents not stopping at the scene for fear of being assaulted. It also reflects badly on the assailants who have taken the law into their own hands and issued summary punishment without a trial or proper court process.
    
17. In sentencing the defendant this court must hold him accountable for the harm caused. The sentence should also act as a deterrent to other drivers to exercise a greater degree of caution in their driving. The fact that the defendant was driving a bus at the time with a passenger inside cannot be ignored and is a serious aggravating factor. Also the deceased's family must be compensated for their untimely loss.
    
18. Prosecuting counsel submits that the appropriate sentence in this case is a term of 18 months imprisonment and a compensation order. Defence counsel on the other hand accepts that a suspended prison sentence and compensation would meet the circumstances of the case.
    
19. The appropriate starting point in this case is a sentence of 18 months imprisonment which is reduced to 12 months to reflect the defendant's guilty plea and past good record. I turn next to consider whether this sentence should be suspended and, having regard to all the circumstances in the case including the fact that the deceased was partly to blame for the accident, and, I am satisfied that it should be suspended for a period of 3 years. If you stay out of trouble for the next 3 year, then you will not need to serve this sentence of 12 months imprisonment, but, if you reoffend and are convicted of another offence, you will have to serve this sentence along with any other punishment you may receive for your re-offending.
    
20. You are also disqualified from driving a motor vehicle for a period of 12 months and your licence is ordered to be endorsed accordingly.
    
21. In addition, I impose a compensation order of VT500,000 to be paid to the deceased's family within a month on or by 15 March 2011. Such payment is to be confirmed in a letter/report from a Probation officer to be filed in Court by 18 March 2011.
    
22. If you do not agree with this sentence you have 14 days within which to lodge an appeal to the Court of Appeal.
    

DATED at Port Vila, this 15th day of February, 2011

BY THE COURT

D. V. FATIAKI
Judge.