Ponia v Howard [2001] CKHC 3; HC JP App 2.2001 (2 May 2001)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

JP APPEAL NO. 2/2001
(CR NO. 141/01)

BETWEEN

RAYLENE PONIA
of Rarotonga, Office Worker
Appellant

AND

TEINAKI HOWARD
of Rarotonga, Police Officer
Respondent

Mr. Arnold for Appellant
Mr. Howard for Respondent
Date of Hearing: 2 May 2001
Date of decision: 2 May 2001

DECISION OF GREIG, CJ

This is an appeal against the penalty imposed on the appellant on Information CR No. 141/01. That was a charge that on 30 March 2001 the appellant while driving her car had failed to stop and failed to ascertain whether any person had been injured in an accident contrary to S37 of the Transport Act 1966. The penalty imposed was a conviction and a fine of $150.00, Court costs $10 and a disqualification for a period of 6 months. At the same time the appellant was sentenced on a charge of driving while under the influence of drink, at the same time in the same place, to such an extent as to be incapable of having proper control of the motor vehicle. The same monetary penalties were imposed but on that charge the disqualification was for 3 months.

Although the appeal is in respect of the one charge only it is appropriate that I have to deal with the facts overall because they bear on the sentence on this as well as the other charge. It needs to be noted as was acknowledged by Mr. Arnold that in light of the absence of appeal on the earlier charge the appellant ill effect accepts the disqualification for 3 months.

Mr Arnold has provided me with a compilation of sentencing on charges under SS37 and 28 from 9 May 2000 to 19 April 2001 including the appellant's conviction and sentence.

The date of sentence in respect of S37 is not the crucial date, it is the date of the offence because it was only offences after 10 April 2000 that carried the mandatory penalty of disqualification.

Reading through the list there are as one might expect very few cases of failure to stop and report an accident and there are none in the list except the appellant who suffered disqualification. I take it that this means in effect that this was the first occasion on which the Court was required to consider the appropriate penalty of disqualification under S37.

In his sentencing remarks which were not recorded but which I have been informed about the Justice made some reference to an earlier case which had been given some prominence and publicity. The learned Justice of the Peace distinguished that case, and if I may say so, properly because that was a case of a personal injury with liquor involved and a charge of careless driving.

As I have said Mr. Arnold emphasized in mitigation the employment situation and the need for the appellant to be able to have transport either driving herself or being driven by someone else to and from and within her work. In his sentencing remarks the Justice of the Peace expressed himself as not being satisfied that a limited licence should be granted immediately but that the appellant could well apply later for such a licence.

In the compilation Mr. Arnold has provided for me, there are a number of cases where the sentence has been imposed under S28, that is to say, driving under the influence, and a limited licence has been granted immediately on sentence to enable the person to drive to and from work. I may observe in passing that this compilation seems to have a very large number of charges and sentences for driving under the influence of liquor in the period in question which is just under 12 months. It seems that rather too frequent offending of this kind and it seems too that the learned Justice of the Peace was of a mind to make some remarks in that regard because there was a suggestion that there should be a re-setting of the clock in drunk driving cases.

This question of limited licence seems to be one under which unfortunately the Court has failed to observe the letter of the law because the letter of the law in S31(4) makes it clear that when an order for disqualification is made under Ss 25, 28, 32(2) and now S37 no application may be made for a limited licence before the expiration of G months after the date of the order of disqualification. So in all those cases where a limited licence has been granted immediately after the hearing, it should not have been done. And in this case it could not be done although the learned Justice clearly thought that the appellant was entitled to make application for that.

Turning then back to the actual appeal, clearly on the charge of driving under the influence the penalty imposed could not possibly be challenged as being excessive or wrong. This was in my view a bad case of driving under the influence of liquor. Perhaps to the appellant's credit she tool steps to ensure she did not drive earlier but then she then went out and drove a lengthy distance at night under the influence in circumstances which she does not remember at all which only indicates the degree of intoxication and had an accident. An accident in which she bumped into a car in front, not because it was stopping or not because she did not stop in time but because she was driving too fast and without proper attention. It was not a serious accident. No one was injured. Only slight damage was caused. It is the duty of a driver to stop when there is an accident, she did not do that. But in my estimation, this was a lesser part of the whole incident.

In my judgment it did not require a heavier sentence than what was appropriate for the main and more serious charge that of driving under the influence of liquor. It was mandatory to impose a sentence of disqualification and I think that a 3 months disqualification would have been sufficient and that what was imposed was excessive in all the circumstances.

It is I think difficult and indeed impossible to lay down any overriding rule or guidance as to what is the appropriate disqualification penalty under S37. The maximum for a first offence is 3 years and for a second or subsequent offence 5 years. The circumstances of each event and incident and charge vary immensely and I think it has to be left to the good sense of the presiding Judge to decide what is appropriate in all the circumstances. The appeal therefore is allowed to this extent that the disqualification penalty is reduced to a period of 3 months but in all other respects the penalty and sentence are confirmed.

CHIEF JUSTICE