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Public Prosecutor v Riri [2015] VUSC 28; Criminal Case 93 of 2014 (11 March 2015)

IN THE SUPREME COURT OF THE REPUBLIC OF VANUATU
Criminal Case No. 93 of 2014
(Criminal Jurisdiction)

PUBLIC PROSECUTOR

VS.

JOSEPH RIRI

Coram: Justice Stephen Harrop

Counsel: Ken Massing for Public Prosecutor
Felix Laumae for the Defendant

Date: 11th March 2015 at 2.30pm at Luganville, Santo

SENTENCE

1. Joseph Riri you are 49 and a professional driver as well as the owner of the well- known Matevulu Blue Hole a popular tourist attraction, here on Santo. You appear on sentence on one charge of unintentionally causing the death of two of your bus passengers around 10 or 10.30pm on 30 May 2014.
   
2. There really should be two charges because there were two deaths but nothing turns on that for present purposes. The charge to which you have pleaded guilty was laid on under section 108 (c) of the Penal Code and involves an allegation of negligence rather than recklessness or failure to follow a legal provision, those being the other options within section 108.
   
3. The maximum penalty for this offence is 5 years imprisonment because death resulted. In reality, because I consider negligence to be the least of the three options as to the criminality involved in a section 108 charge, the maximum penalty in your case should be seen as somewhat less, but on the other hand there were two deaths here, not just one. One death is sufficient to cause the maximum penalty to apply.
   
4. Within the category of negligence though there are clearly degrees of fault and degrees of contribution to the resulting deaths so a careful analysis of the fault involved is required to make an assessment of your level of culpability.
   
5. There has been a useful agreement between counsel about the facts. I will use Mr Massing's submissions as a basis for that, but Mr Laumae's contain the same details. The two unfortunate victims of this accident were Willie Ishmael John who was 37 years old from Tongoa. He was an employee at the Oyster Island Resort. The other was Lolina Garae who was 21 and from Ambae who also worked at that resort. Both of them died instantly at the time of this accident.
   
6. There was a third victim who was injured but survived. Although you are not charged with negligently causing injury to her, the effects on her are part of the picture and I will include them in this discussion. She is Belinda Tabiusu, aged 22, from Pentecost and also on Oyster Island Resort employee. She suffered a broken clavicle and was admitted to hospital but I understand has recovered well.
   
7. You live at Matevulu village near Oyster Island and you had a contract with the Oyster Island Resort to transport its employees to and from the resort each day; you had been doing that for three years before the accident. On the evening of 30 May you were driving your grey Toyota Hi-Ace bus along the main Santo East highway road. You were a professional driver, driving for reward. Your job was to pick up the resort workers and transport them back to their homes. Before the accident you are picked them up from the resort or the landing. You had driven up north to Turtle Bay where you dropped one of them off and you were coming back down the road heading towards Luganville.
   
8. You were not driving at the excessive speed, I think the speed limit there is 80 kilometres an hour, and it is agreed you were travelling at somewhere between 60 and 80 kilometres an hour. Approaching the Oyster Island turn off you saw a small car or taxi in front of you and you quite properly put your headlights on low beam. Understandably you were focussed on the taxi which was in front of you. When the two vehicles came around the corner, or curve as Mr Laumae has described it, there was unfortunately partly on the road, perhaps its much as three-quarters of the vehicle being on the road rather than off it, there was a Toyota Dyna truck which had timbers hanging over the tray. The taxi was able to avoid a collision with this vehicle but unfortunately and tragically you were not. You did veer left and so as a result you were not yourself directly impacted in the collision but unfortunately your front seat passenger Lolina Garae took the full impact of some of the timber truck. The other victim Willie Ishmael John was sitting in the seat behind your seat was also fatally injured by the timber. It is fortunate for Belinda Tabiusu that she was in the back and obviously suffered much less than a fatal injury.
   
9. It was of course night time and therefore dark but the weather was fine and the road conditions were good as far as I know. It transpires that the Toyota Dyna truck had had a mechanical problem that afternoon and had been left unattended on the road where the collision occurred. There was no sign put on the vehicle by the driver to warn other road users that the vehicle was there; of course we do not know if any such sign would have made any difference; potentially it might have. It also transpires that vehicle did not have an appropriate roadworthy certificate and that may will have explained why the mechanical problem occurred but again that is unclear.
   
10. Whatever the reason, the Dyna truck was an obstruction on the road and without that the accident would not have happened. But you have pleaded guilty to this charge because you accept that you were driving with a degree of negligence which contributed to the accident and to the deaths. Your acceptance of fault is at the level that you did not keep as good a lookout as you should have in the circumstances.
    
11. As I have said it is important to make an assessment of your level of fault. Mr Laumae's submission is that this was relatively minor. I disagree with that to some extent, I think the level of fault was more at the medium level. That is because although I accept you were not speeding so far as the speed limit was concerned, I think in the circumstances that you came across you were travelling too fast and that clearly contributed to the collision. The fact that the taxi driver was able to avoid the Dyna truck supports that view.
    
12. Any driver who comes around a corner or curve needs to be prepared to slow down and if necessary stop depending on the circumstances confronting him or her. I fully accept that what confronted you was very unusual, unexpected and that many drivers in your situation may have done no better to avoid the collision than you did. But I think the reality is that many drivers also regularly drive below the standard of the reasonably prudent driver and are fortunate enough to get away with it without having an accident. You were caught out and this tragedy resulted
    
13. I think it is relevant to the assessment of culpability that you are an experienced and professional driver driving for reward and that you had three passengers for whom you were responsible. Also you were driving at night. So you have arguably a higher level of responsibility than other drivers in the same circumstances. For these reasons I conclude that the level of fault is at the medium level but I am emphasise that that is within the category of negligence. This was not reckless driving, it was not driving that you did not care about. Sometimes this kind offence is called careless driving which I think is unfair because is suggests the driver does not care about the way they driving. I am sure you are not in that category. Rather, in the circumstances that faced you, which were unusual, you did not drive as well as you should have and you failed to avoid the collision.
    
14. I accept that it is possible that even driving much more cautiously and taking all reasonable precautions, you might still have had difficulty avoiding any collision but it would have been a less serious one and it may have avoided the deaths. As I say the fact that the taxi driver was able to avoid the vehicle does suggest that you were either distracted, perhaps by focusing on the taxi, or going a little faster than you should have in prevailing circumstances, or both.
    
15. I understand that they may be some civil proceedings that you will be taking against the person who left that vehicle parked there. I just want to emphasise that I am not in a position to assess the level of fault of that person and I am not making any findings about that. The focus here today is on your level of fault. I accept entirely that there was on some level a joint contribution to this accident because obviously without that vehicle parked there, there would have been no accident. But the fact that someone else may have been at fault does not mean that you were not, and as I say the sentencing is not in a civil case, so it is not dealing with a comparison of fault between the two; it is concerned with your level of fault and responsibility and on the consequences.
    
16. Mr Laumae has helpfully reminded me of the sentencing judgment that I gave in August on Tanna in Public Prosecutor v. Nakat [2014] VUSC 121. I repeat what I said there. Most judges will tell you that this kind of case is the hardest one to sentence. That is because it involves the least kind of fault but the worse kind of outcome, namely the death of a person, in this case two. Balancing those factors is inevitably difficult, indeed impossible, because nothing the Court or you can do can bring the victim back. No sentence that the court imposes can provide a measure of the loss of the value of her life.
    
17. The Court of Appeal considered these issues in Newellv Public Prosecutor [1998] VUCA 2. That was a Santo case where a 14-year old boy had, at Big Bay, tragically fatally injured one of his close friends when they were fooling around with a rifle which accidently went off.
    
18. The court said at page 3 of its judgment: "Dealing with cases of this sort creates some of the most difficult sentencing tasks in any Court. This is a matter which in general conversation would be described as an accident. In the law's terms it is the situation where death resulted from an unlawful act. That in law is not an accident but it is a situation where but is unintentional harm causing death. A criminal court in determining sentences on this sort of charge cannot possibly put a value or an appreciation of the life which has been lost. It is unfortunate (particularly when people are grieving and hurt) that sometimes there is a suggestion that the Court minimises the value of the life which was taken when what the court is concerned to do is to assess the criminal culpability of the wrongdoer."
    
19. So my focus has to be on your level of fault and not unduly on the deaths that resulted. It would be quite wrong for me to say that because two people died I have to treat this like a manslaughter or a murder case and that you must go to prison for a long time. Rather, what needs to be done as to look at the fault involved, as I have endeavoured to do, but also to take into account the fact that as a result of that fault two deaths occurred.
    
20. Here I also want to emphasise too the particular danger that the fact there were two deaths maybe seen as being far worse than one. The number of deaths does not change the level of fault on your part.
    
21. I now want to go over the pre-sentence report briefly. It is very helpful and emphasises that you are somebody who is clearly of good character. You are from the Matevulu village, you are married with four children and you play a prominent role in your community. Not only are you the owner of the blue hole but you are the chairman of the Matevulu National Secondary School, and you have made a number of other community contributions. Whenever somebody offends as you have it is, although primarily an offence against the victim, also an offence against the community. You are entitled to have weighed in this scales all of the good things you have done for the community.
    
22. You're a first offender, you are remorseful, it has caused you considerable distress thinking about the case. I accept that someone of your character will be particularly burdened, for the rest of your life, by the knowledge that you have caused the death of two people. That in itself is a significant penalty.
    
23. I also note that your vehicle was written off and that you have not been able to buy a new one since a new vehicle will cost about Vt4,500,000 and although it was almost about three years old obviously still held a considerable portion of that value. So you have already suffered a financial penalty as a result of the incident.
    
24. There is some information about the victims in the pre-sentence report. Obviously this has been devastating for both families and nothing I can say or do today can lessen the impact on them. There has been a very significant and, as far as I can see very worthwhile, customary reconciliation ceremony which happened this week in relation to Lolina's family. The other family, that of Willie Ishmael John does not wish to be involved in such a ceremony and that is their right They do seek compensation but not through these proceedings; I understand from Mr Massing that some civil proceedings are likely to follow.
    
25. As far as Lolina Garae's family were concerned I have read the report of the ceremony which happened yesterday. It sounds most impressive: there were about a hundred people there including six chiefs and the items you provided to the family had a value of about Vt400,000, which is significant. There were two pigs valued at vt100,000, a buluk valued at vt20,000, vt200,000 cash, 16 bundle of taro valued at vt8,000, 4 baskets of kumala valued at vt2,000, 1 bag of rice 25kg valued at vt3,200, 6 red custom mats and 3 valued yams (bisu).
    
26. I must and do take into account and give you substantial credit, first simply for taking part on that ceremony, but secondly for the generous gifts involved. That is a proper recognition in the Vanuatu culture of your remorse and of your efforts to try to put things right as best you can; obviously nobody can bring back Lolina but you have done what you can to redress matters in the appropriate way on the Vanuatu culture.
    
27. When I come to assessing the appropriate sentence, I will summarise what I am going to do at the outset and I explain how I reach that view. I am satisfied that the circumstances of the case including the outcome of the two deaths do warrant a short sentence of imprisonment but I am also satisfied that it should be suspended. In addition a sentence of community work should be imposed.
    
28. I do not propose to refer to other judgments but I have taken into account those which have been helpfully supplied by Mr Massing in his submissions. I consider a starting point of around 12 months' imprisonment is appropriate. That is determined taking into account the maximum penalty, the assessment I have made of your level of fault, the fact of the two deaths, the other authorities the need to issue a message of general deterrence to warn people about the danger of driving on the open road without due care and attention.
    
29. From that, there needs to be deducted one-third, or 4 months, for your guilty plea. That is of real value because it avoided a trial, it avoided witnesses coming to court, in particular Belinda Tabiusu, and having to relive the incident and perhaps being challenged about their recollection of events. It is also a public acknowledgement of responsibility as is the custom reconciliation ceremony.
    
30. I make further deductions because of your previous good character, your community contributions over the years and the custom reconciliation ceremony. These reduce the sentence further from 8 months down to one of 5 months imprisonment. That is the end sentence that I come to, but for a number of the reasons already mentioned I am satisfied that a wholly suspended present sentence is appropriate.
    
31. I suspend that 5 months prison sentence for 12 months.
    
32. A suspended sentence is one that does not involve you going to prison unless you offend during the 12 months period starting from now, so as long as you do not reoffend in any way there is no prison time served. If however you do commit an offence during that period then you would serve not only the 5 months imprisonment but also the sentence for that other offence. Based on what I have read about your character, I am confident that will not happen.
    
33. Although that is a real sentence and a significant one, but because in reality I do not expect it to have any direct impact on you, I think a sentence of community work is required this add something to the necessary deterrence and give something back to the community generally.
    
34. I emphasise that I do not think you need to be personally deterred from further driving offending. I think this experience, given your character, will have taught you the lesson you need to learn and I do not need to do anything further.
    
35. But it is an opportunity for the community generally to be reminded of just how dangerous driving on the road is. I think there is a danger, when many of the roads on Santo are not so good, that when you get on to that East Coast road with the nice tarseal that people do drive faster than they should; here I am speaking generally rather than about you. I think it is a good message for the community to receive that if you make even quite a minor error when you driving, the consequences can be devastating not only for you and passengers but for other road users.
    
36. I am satisfied that a sentence of 150 hours of community work should also be imposed. In some cases of this kind sentences of supervision have been imposed as well but I do not see that you have any particular aspects of your character that need addressing. This was an error of judgment by a person who is otherwise of good character.
    
37. You have 14 days to appeal against the sentence if you wish to do so.
    

BY THE COURT

STEPHEN HARROP
Judge