Tenubobo v Republic [2011] KICA 15; Criminal Appeal 03 of 2011 (31 August 2011)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION

HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal No. 3 of 2011

BETWEEN

ANETI TENUBOBO
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before: Paterson JA
Williams JA
Barker JA

Counsel: Elsie Karakaua for appellant
Pauline Beiatau for respondent

Date of Hearing: 25 August 2011
Date of Judgment: 31 August 2011

JUDGMENT OF THE COURT

INTRODUCTION

1. The appellant was convicted on 22 October 2010 by the Chief Justice after a defended hearing in the High Court, on charges of dangerous driving causing death and driving without a licence.
   
2. On 27 October 2010, the respondent was sentenced to life imprisonment on the first count and to two years' concurrent imprisonment on the second. For both counts, the Chief Justice imposed the maximum sentence fixed by the legislation (i.e. the Traffic Act 2002 as amended in 2005) ("the Act"). He was also disqualified from holding a driving licence in the future.
   
3. On 20 April 2011, the appellant sought leave of the Court to appeal against the sentence. This application for leave was well out-of-time. However, despite the opposition of counsel for the respondent, the Court gave leave to the appellant to file his appeal on the grounds that he had received the maximum sentence known to the law and that justice required that he be given the right to challenge that sentence.
   
4. The Court also gave the appellant leave to file amended grounds of appeal which are as follows:
   
   • (a) The sentence is manifestly excessive;
     
   • (b) The Chief Justice misdirected himself as to the appropriate sentence by referring to the irrelevant consideration of whether a non-parole period could have been imposed;
     
   • (c) The Chief Justice failed to fix a non-parole period.
     
5. At around midnight on 21 April 2010, the accused who had been drinking drove a truck on to the wrong side of the road, knocking down a pedestrian, running over him and then driving away without stopping. The victim died from head injuries before arrival in hospital.
   
6. The prosecution maintained that the appellant deliberately ran into the victim. Hence he was charged with murder with the dangerous driving count as an alternative. The appellant did not give evidence.
   
7. The Chief Justice had 'some doubt, it may be reasonable' whether the appellant's actions had been deliberate. Accordingly, he acquitted the appellant on the count of murder but convicted him on the dangerous driving causing death count and the count of driving without a licence in respect of which there is no appeal against sentence.
   
8. At sentencing, the Chief Justice made the obvious comment that this was a very bad case of driving, "right at the top of the scale of seriousness". Noting that the maximum penalty for dangerous driving causing death was life imprisonment, he stated that it was only if he were given that penalty could a non-parole period be fixed. However, he did not impose any non-parole period.
   

STATUTORY PROVISIONS

9. Before noting the relevant statutory provisions the Court notes that the action of the Kiribati Legislature in making dangerous driving causing death punishable by life imprisonment is somewhat unusual. In many other jurisdictions, a death on the roads caused by very had driving sees a charge of manslaughter brought against the offender. The offence of manslaughter is usually punishable, as it is in Kiribati, by life imprisonment as the maximum sentence. In most Commonwealth jurisdictions which have a statutory penal code, manslaughter is the act of causing the death of another by an unlawful act or omission. Bad driving is always an unlawful act or omission. Hence manslaughter can usually be proved as easily as dangerous driving causing death.
   
10. In earlier decades, some jurisdictions created the statutory offence of dangerous driving causing death with a finite maximum penalty because it was found that juries were often reluctant to convict drivers of manslaughter. That situation has changed – certainly in New Zealand – and those who through bad driving cause death are often charged with manslaughter: convictions are frequently obtained.
    
11. Where, as in this case, the necessary 'malice aforethought' cannot be proved beyond a reasonable doubt, a conviction for manslaughter can be entered on the charge of murder. This could have happened in this case.
    
12. However, the sentencing consequence would not have been the same, since section 31(5) of the Act requires a minimum sentence of 10 years' imprisonment to be imposed for the offence of dangerous driving causing death, absent exceptional circumstances relating to the offence or to the offender.
    
13. Under section 11 of the Parole Board Act 1986, offenders sentenced to imprisonment for two years or more are eligible to be considered for parole after half the sentence has been served, except for those sentenced to life imprisonment who do not normally become so eligible until ten years have been served.
    
14. Section 11(1A) of the same Act gives the Court power when sentencing an offender to life imprisonment, to fix a lesser non-parole period than ten years. That is what the Chief Justice must have been referring to in his sentencing remarks. Yet he failed to fix any such period.
    
15. Section 31(4) of the Act provides that in determining the penalty for an offence under the section (including dangerous driving causing death) the Court may have regard to all the consequences of the offender's driving. Presumably, this expression would include the consequences to an offender's family.
    

SUBMISISONS

16. Counsel for the appellant submitted that the sentence of life imprisonment was manifestly excessive. She compared two sentences for the same offence imposed by the same Chief Justice. These were (a) R v Tebao [2006] KIHC 107 where the offender drove a large machine under the influence of alcohol and 12 years' imprisonment was imposed and (b) R v Manate [2009] KIHC 9 where the offender who had been drinking all night, went to sleep at the wheel and hit a tree. A backseat passenger died: 10 years' imprisonment was imposed.
    
17. Counsel acknowledged the aggravating features of the appellant's failure to stop and the impact on the victim's family. It should also be noted that the appellant had a bad driving record with some ten previous convictions for speeding. He was not charged with driving under the influence, although it was acknowledged that he had been drinking before driving.
    
18. The mitigating factors mentioned by counsel for the appellant included the hardship faced by the appellant's wife and six young children plus his remorse. Counsel submitted that the maximum penalty should be reserved for the worst cases imaginable.
    
19. Counsel further submitted that the Chief Justice erred in saying that he was imposing life imprisonment so that he could fix a non-parole period and then failing to fix a period. The Court has difficulty in understanding the relevance since any finite sentence would qualify for consideration of parole at the half-way point. This failure to set a non-parole period means that the appellant must serve at least ten years before being eligible for consideration for parole.
    
20. Counsel for the respondent rightfully emphasized the appalling nature of the appellant's driving. Counsel cited R v Black [1971] Crim. L. R. 109 as authority for saying that the possibility of a parole application should not be taken into account on sentencing. Counsel sought to uphold the sentence.
    

DECISION

21. The Court has difficulty in seeing that life imprisonment – as distinct from a long finite term – is the appropriate penalty. Had the appellant been convicted of murder, then he would have been sentenced to life imprisonment. However, by virtue of his acquittal on that count, it was not proved that he intended to kill the victim.
    
22. Intentional homicide must be more culpable than homicide which is the unintended consequence of an unlawful act of driving – no matter how bad the driving.
    
23. Accordingly, the Court considers that a finite sentence should have been imposed. Taking into account the minimum sentence of 10 years prescribed by law, the aggravating circumstances of the appellant running over the victim and failing to stop, the precedent sentences referred to, the effect on the victim's family and, to a limited extent, the effect on the appellant's family, a sentence of 13 years' imprisonment is imposed instead of life imprisonment. The disqualification from driving will stand.
    
24. Appeal allowed. A sentence of 13 years' imprisonment for dangerous driving causing death is imposed. The sentence of life imprisonment is quashed.
    

Paterson JA

Williams JA

Barker JA