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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)
Criminal Case No. 34 of 2001
PUBLIC PROSECUTOR
-vs-
class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> JOEL KALTANG
SENTENCE/p>
On 12th October 2001 at about 4 p.m. Franklyn Blas, a ten year old school boy was crossing the Tebakor road in Port Vila. He was killed by a bus driven by Joel Kaltang.
On 18th February 2002 Joel Kaltang pleguilty to unintentional harm causing death contrary tary to section 108 c of the Penal Code. That was on the basis he had driven negligently.
Franklyn Blas was in school uniform crossing from the Vanuatu Stick side of the road to the Wong Garage side. Joel Kaltang was driving his bus away from town. He had passengers. A taxi driver behind him considered he was not paying proper attention. The bus went past a stationary truck. The boy was about half way across the road, about ten metres further on from the truck. The middle front of the bus hit the boy and carried him for some way before he fell. He had sustained severe head injuries and was dead before arrival at hospital.
Joel Kaltang had braked and stopped his bus about 20 metres further down the road. After a few moments he drove rove off to the police station. The police officers saw him. His eyes were red, he could not stand up straight and he smelt of alcohol. He told them he had drunk four to six bottles of rum-cola upto 1.30 p.m. on that day.
I give credit to the defendant for his plea olty. The prosecution accept there was no intention to cause harm, it was done negligently. The defendant originally pleaded not guilty on the misunderstanding it was alleged he had caused the harm intentionally.
I also give Mr. Kalcredit for the fact he has no previous convictions which the Court should take into nto account. Mr. Kaltang is a married man with seven children. He pays school fees for all of them, save the youngest. He bought this bus approximately two years ago with a loan. It was his business and he worked to support his family. It was properly insured.
Mr. Ka’s lawyer has told the Court that over many years he has given much to the community nity and continues to do so today.
He says he is very sorry for what happened. He has offered and arranged for a custom settlement, although for reasons he says beyond his control that has not been completed.
He accepts he drank four bottles of rum-cola upto 1.30 pn that day. (A bottle of such rum-cola was shewn to t to the Court. It contains 340 mls of liquid at 5.0 % alcohol by Volume.) He was carrying passengers at the time of the accident. He says he wasn’t going fast and does not remember a parked truck. At first in mitigation he says he didn’t see the boy. After being told the Court was considering imprisonment, and an adjournment to give further instructions, he says he did see the boy and steered to miss him. He said if the boy had stepped back he would have missed him. He stoppe realised wsed what had happened. He was frightened and drove to the police station.
<
There is a duty to stop after a road accident, although I can understand why Joel Kaltang was frightened and drove away. If he had not gone straight to the police station, or left an injured person without help that would have been very serious. It is difficult to assess how much of his behaviour at the police station was as a result of the alcohol he had drunk and how much the shock of what had happened. The plain fact is that two and a half hours after stopping drinking police officers immediately noticed the smell of alcohol on his breath.
In Appeal Co. 1 of 2000, John Jenkinson –v- Public Prosecutor the Court of Appeal stated “ted “ where it is alleged that alcohol contributed to the happening of an accident, and there is evidence which supports the allegation, that will be a serious matter of aggravation, and one which, if coupled with a poor lookout, could well render the piece of driving reckless and not negligent.”
This is a case of poor lookout and there is evidence which supports the suggestion that alcohol contributed to the accident, although it is difficult to assess how much. There are witnesses who say he was not drunk.
I must sentence for a negligent act although one that is close to reckless. Further, Joel Kaltang was working as a public bus, and indeed had passengers in his vehicle.
“Serious driving offences causing pal injury or death will necessarily attract penalties that that reflect a component of general deterrence, “(Jenkinson-v- Public Prosecutor).
There is no power to disqualify the defendant from driving under Section 108 Penal Code Court of Appeal in
Jenkinson drew attention to this and stated it would be desirable if Parliament made disqualification an available penalty for any offence committed using a motor vehicle.
The Public Prosecutor should so consider carefully whether charges of causing death by r by reckless driving, reckless driving or careless driving (contrary to Sections 12, 13 and 14 Road Traffic (Control) Act) should be laid in cases like this. There are sentences of five years, one year and six months respectively available n and a power on each to disqualify from driving for upto 5 years. Section 108 (c) provides a sentence maximum of 5 years, even for a negligent act, but no disqualification.
p>
I of course, sentence for the offence before me and on the facts accepted by the defendefendant. In the case of Jenkinson the Court of Appeal found the defendant’s look out was grossly defective. That failure caused the death of a A sentence of e of eight months imprisonment was considered appropriate. It was to be suspended for eighteen months ew of the mitigation.
In this case there are the aggravating features of the contribution of alcohol and the fact the defendant was operating a bus and carrying members of the public as fare-paying passengers.
There are a number atures of this accident which are not entirely clear from the prosecution witnewitnesses. The most important is how close the boy was to the parked truck when he crossed the road. If he emerged from immediately in front of a stationary truck that would give a driver little time to react. The further down he was from the truck then the greater becomes the culpability of the bus driver. The best I can do, and taking matters in the defendant’s favour, I can say the boy was not immediately in front of the truck, but not a great distance ahead of it, about ten metres. (The defendant himself says he does not recollect any parked truck. This is a question of his lookout.)
In all the circumstances I find tence of eighteen months imprisonment would be appropriate iate reduced to twelve months in view of the guilty plea and mitigation.
There are some general comments that should be made.
There are more and more vehicles on the roads of Vila. Anyone who walks or travels along the str streets vehs vehicles going too fast for the road conditions. Vehicles overtake when it is clearly unsafe to do so.
p class="MsoBoMsoBodyText" align="left" style="text-align: left; line-height: normal; margin-top: 1; margin-bottom: 1"> There are more pedestrsing the roads, partiparticularly children. It is the duty of every driver to drive carefully and particularly look out for children. It is the duty of the driver to look out for people crossing roads. Where there are pedestrians the driver must go slowly and be able to stop in a short distance. If someone is crossing the road, it is not the driver’s right to continue regardless and expect pedestrians to get out of the way. The Port Vila Municipal Authority should also give consideration to contr and marked&rked crossinges and measures toes to limit traffic speeds.
When overtaking ing or stationery vehicle drivers must look out for people crossing.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Drivers of buses have a special responsiy as they are carrying members the of public.
Drivers who go too fast or do not keep a proper look out must expect antial sentences from the Cthe Court. If a driver has consumed alcohol and that contributes to an accident which causes death or serious injury the driver must expect imprisonment.
Drivers of buses have a particular responsibility to enthey do not drive under the influence of drink or drur drugs. The best rule is if you are driving, don’t drink alcohol.
too late after killing or seriously injuring someone through reckless or careless drss driving to say “ I am sorry”. It is too late.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> This case also illustrate the fact that the police need two or three ic officers wers who have been trained and are experienced in dealing with serious road traffic accidents. There are a number of important features is case which are not clear through lack of such an o an officer. There isn’t a complete, reliable plan of the scene. Witness statements require greater detail. There is no photograph of the front of the bus shewing the point of impact. There is no reliable evidence to indicate the point of impact on the road.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Such a trained police officer should be able twenty- four hours a day to go immediately to the scen scene of a serious accident and to take charge of the whole investigation. If there is a criminal trial then the maximum amount of information will be available.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Urgent and ser consideration should be given to Legislation setting a legal limit for alcohol ohol when driving. The police must be equipped with the powers to obtain samples for analysis.
I now consider whether or not I should suspend the senten this case.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> I have found this a very difficult task. Joel Kaltang is a family man, he is resourceful and running a small business. In many ways he has given much to the communities in which he lives. He has no convictions. On the other hand he was driving a public bus, with passengers. His look out was defective. He had drunk alcohol which to some degree must have contributethe ache accident. A ten-year old boy was killed.
There must be a large element ofrrence in sentencing in these circumstances. Nothing anyonenyone can do will bring back Franklyn Blas. I must look to the safety of pedestrians, particularly children. In all the circumstances I find I should not suspend the sentence.
. &nbs; &nbbp;&nnbp;& p; - TwelvTwelve months imprisonment.
;
Dated at Port Vila this 20th day of February 2002.
R.J. COVENTRY
Judge
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