Taaboru v Republic [2002] KICA 5; Criminal Appeal 04 of 2002 (12 August 2002)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal No. 4 of 2002

BETWEEN:

REUNGARU TAABORU
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: Emma Hibling for Appellant
Tion Nabau for Respondent

Date of hearing: 8 August 2002
Date of judgment: 12 August 2002

JUDGMENT OF THE COURT

[1] On 11 March 2002 the Appellant was found guilty of reckless driving causing death under s24(2) of the Traffic Ordinance (Cap 98), and of negligence under s 230 of the Penal Code (Cap 67). He was sentenced to concurrent terms of two and a half years imprisonment on the first charge and 18 months on the second and disqualified from driving until the further order of the Court. He appeals against both prison sentences on the grounds that they are manifestly excessive. The charges arose out of the same piece of driving at about 6 pm on Saturday 20 January 2001 in conditions of good visibility, when the Appellant pulled across in his truck to his incorrect side of the road and attempted to pass a car. He collided with a motor cycle coming from the opposite direction, killing the rider and seriously injuring his pillion passenger.

[2] The charges were defended and the Learned Chief Justice found that "beyond reasonable doubt the accused, having seen the motorcycle coming in the opposite direction, nevertheless pulled out on to his incorrect side of the road in an attempt to pass a car. This showed a high degree of negligence." Adopting Lord Diplock's suggested direction for reckless driving in R v Laurence (1981) 1 All ER 972, he said he was satisfied the accused was driving in such a manner as to create an obvious and serious risk of causing physical injury; and that he did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, nevertheless went on to take it. But he thought the degree of recklessness was not high enough to support the alternative charge of manslaughter.

[3] In his sentencing remarks His Honour described the Appellant as a 30-year old divorced man living a subsistence lifestyle at his grandfather's house, after having been dismissed from his job as a result of the accident. He had one previous conviction for speeding in May 2000 for which he was fined $30. Apart from apologies, some of which were accepted, His Honour did not refer to any mitigating factors but we accept that this was a "one off" piece of driving. Nor do there appear to have been any of the aggravating factors commonly taken into account in such cases. Accordingly the Appellant was to be sentenced only on the basis of the recklessness or negligence involved and the death and injury they caused.. His Honour told the Appellant that what he did was serious and bad, and that he would have to go to gaol for it.

[4] His sentencing remarks contain no reference to the crucial fact that on 9 July 2000 the penalty for reckless driving causing death was increased from 5 years' imprisonment to life, and this was the first case where sentencing had to take place under that new regime. We were referred to an earlier case (The Republic v Samuelu Tevave CC28/2000; 12 January 2001) dealing with an accident that had taken place before the amendment. The Court's remarks to the accused about the much longer sentence he could have expected if the amendment had then been in force demonstrate an awareness that a new sentencing pattern had been introduced. In fixing life imprisonment Parliament was concerned to bring home the message that driving standards had to improve in order to bring down the road toll. It may be debatable whether increasingly longer sentences will achieve that result. The present sentences may bear heavily on the Appellant, who is evidently a man with a good record. Some might see him as guilty of only a gross error of judgment, although this was not His Honour's view, and we see no reason to disagree with it.

[5] The fact is that the Court must pay regard to the clearly-expressed will of Parliament by the imposition of sentences for reckless driving causing death at a considerably higher level than the guidelines adopted in those cases when the maximum was far lower. There were no precedents for His Honour, but we do not think he erred in principle in imposing the prison terms.

Result

The appeals are dismissed.

Casey JA
Hardie Boys JA
Tompkins JA