Campbell v Reginam [1994] SBCA 3; CA-CRAC 009 of 1994 (22 October 1994)

IN THE COURT OF APPEAL OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Crim.App. Case No. 9 of 1994

BETWEEN:

ALLAN CAMPBELL
Appellant

AND:

REGINAM
Respondent

WILLIAMS, J.A: The appellant appeals by leave against a sentence of five years imprisonment imposed after he pleaded guilty to a charge of manslaughter arising out of a motor vehicle incident.

The circumstances were particularly bad. At the time the appellant was heavily intoxicated. He was driving in the early hours of the morning of 14th May 1994 from Maewo to Kirakira on the island of Makira. There is not an extensive road system on the island and not a great deal of traffic. But this particular road runs past the airport and through a number of villages.

Both the appellant and the deceased had been attending a dance at Maewo at which alcohol was available. Both were affected by the consumption of alcohol. About 3 am the deceased left the dance and began walking back to Kirakira along the road. At a point near Ngorangora village he apparently went to sleep lying across the middle of the roadway.

The appellant who was one of the organisers of the dance decided to drive to KiraKira to obtain more beer. He had a passenger alongside him in the cabin and others were in the back of the utility. According to the passenger the appellant was driving at 100 miles per hour and not straight. The passenger saw the deceased lying on the road and called out to the appellant. The appellant failed to stop the car and ran over the deceased before braking.

Some of the appellant's passengers rendered assistance to the deceased, but after a short time the appellant drove on to Kirakira where he obtained the additional supplies of beer. He then drove back towards Maewo.

Those attending to the deceased had moved him to the side of the road while awaiting further help. However the deceased moved himself or was moved into the centre of the road where he was lying when the appellant returned. Again the appellant failed to stop his vehicle though others in it saw the deceased. The deceased was again run over. It was some time later that death occurred.

Because of those facts the appellant was initially charged with murder but at the commencement of the trial that charge was dropped and replaced by a charge of manslaughter. The appellant immediately pleaded guilty to manslaughter.

In the Solomon Islands, as is the case in comparable jurisdictions, most incidents of death resulting from negligent driving give rise to a charge of dangerous or culpable driving causing death. It is only the most serious of cases which call for a manslaughter charge and even then such a charge is frequently not proven.

As a matter of principle when manslaughter is charged and proven a heavier penalty is called for than would be the case if only the lesser charge was established. But there would need to be proportionality between the level of sentence for each offence.

Similarly there has to be proportionality between the sentence imposed for a motor manslaughter and the sentences imposed for manslaughter generally. Of course manslaughter covers a variety of situations and in consequence there are usually different ranges of sentencing options for the different types of manslaughter. What is important is that the principle of proportionality is recognized and the sentence is appropriate given the facts of the particular case.

Here this learned sentencing judge said: " I accept the submission of Mr. Radclyffe that this case can be distinguished from other manslaughter cases in which a weapon is used in some deliberate manner. Though to some extent a vehicle in the hands of a drunken driver can be said also to be a dangerous weapon on instrument."

Both counsel referred this court to comparable sentences for manslaughter imposed recently in the High Court, but it was conceded that this was the first motor manslaughter to arise before the court. Manslaughter cases in the domestic situation where no weapon was used have consistently resulted in sentences of imprisonment in the range 2 to 4 years. Where a weapon was used in one non-domestic situation a sentence of 6 years imprisonment has been imposed.

The learned sentencing judge appears to have used that 6 years sentence as the benchmark and determined that 5 years was the appropriate sentence in this case. A case such as this is certainly no less serious than domestic manslaughter where no weapon is used but arguably less serious than cases where death is caused by the deliberate use of a weapon. Whilst intoxication is not a mitigating factor, in cases where the act was the direct result of the intoxication it is not accompanied by element of deliberation which makes the use of a weapon more serious.

Counsel also were in agreement that the range of sentencing for culpable driving causing death showed a maximum of 18 months imprisonment and a fine as the minimum. It follows that the appropriate sentence for a motor manslaughter should also be proportionate to that established range.

In the light of all that the appropriate range for this type of offence would appear to be 3 to 4 years imprisonment. Given the particular circumstances of this case and the factors peculiar to this appellant (age, good work record, remorse, no similar previous, and only limited other minor previous) a sentence of 3½ years imprisonment is called for.

Through an oversight the learned sentencing judge did not impose a period of disqualification from holding or obtaining a driving licence as he was required to do under the Traffic Act. The matter should be remitted to him to impose such period of disqualification as is appropriate.

The order of the court will therefore be: Appeal allowed. Substitute a sentence of 3½ years imprisonment to date from 14/06/1994 in lien of the sentence imposed below. Remit the matter to the High Court for the purpose of imposing such a disqualification from holding or obtaining a driver's licence as is deemed appropriate.

WILLIAMS, J.A.
COURT OF APPEAL OF SOLOMON ISLANDS