Regina v Kaukui [2010] SBCA 2; CA-CRAC 11 of 2009 (26 March 2010)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Naqiolevu, J.)
COURT FILE NUMBER:	Criminal Appeal Case No. 11 of 2009 (On Appeal from High Court Criminal Case No. 593 of 2005)
DATE OF HEARING:	17 March 2010
DATE OF JUDGMENT:	26 March 2010
THE COURT:	Sir Robin Auld, P McPherson, JA. Williams, JA.
PARTIES:	REGINA Appellant -V- PHILIP KAUKUI Respondent
ADVOCATES:
Appellant:	Mathew Coates
Respondent:	Preslie Watts
KEY WORDS:	Criminal law – sentence – dangerous driving causing death.
EX TEMPORE/RESERVED:
ALLOWED/DISMISSED:	ALLOWED
PAGES:	1 – 5

JUDGMENT OF THE COURT

On 24 April 2005 at about 9.30 am or shortly afterwards Mebal Dora’adi and Ingrid Uesikeni were going home after attending church. They were walking along the footpath in Mendana Avenue when they were struck by a motor vehicle driven by the respondent. Mebal jumped to her left and was thrown into a flower bed. Ingrid was struck from behind by the appellant’s car. She was thrown into the air and landed on the vehicle. It carried her for some distance before she was thrown alongside the palm trees at the western end of NPF Plaza. The vehicle itself continued along the footpath until it returned to the road and stopped close to the National Museum.

Once the car had stopped the respondent got out of it, and a number of police appeared at the scene. Several of them noticed that the appellant smelt of liquor and was very drunk. One of them saw a half consumed bottle of Sol Brew in the car. One or more of them thought that the appellant appeared very tired. S/Sgt David Waura, who was the investigating officer, said that the respondent smelt strongly of alcohol and he looked drunk. He nevertheless observed that the respondent was able to walk along a straight line.

Ingrid was taken to the National Referral Hospital, where her condition at first stabilised. However, she then started to vomit fresh blood. By 1.45 am she was pronounced dead from respiratory failure due to her severe head injuries.

The respondent was originally charged (count 1) with manslaughter under the Penal Code, as well as (count 2) driving a motor vehicle without having a driving licence, and (count 3) using an unlicensed motor vehicle. The last two are offences under the Traffic Act, section 20(1) and section 7(1) respectively. At a late stage the charge of manslaughter in count 1 was, after discussions between counsel for the appellant and counsel for the Director of Public Prosecutions, withdrawn and replaced by the charge in count 1 of causing death by dangerous driving contrary to section 38 of the Traffic Act. After that had been done, the respondent pleaded guilty to all three counts and on 10 July 2008 was sentenced in the High Court as follows:

Count 1 (dangerous driving causing death) - imprisonment for 18 months suspended for 2 years;

Count 2 (driving without a licence) – fined $90, in default imprisonment for 28 days;

Count 3 (using an unlicensed motor vehicle) – fined $150, in default imprisonment for 28 days.

The respondent was also disqualified for 12 months from holding or obtaining a driving licence.

The Director of Public Prosecutions formed the conclusion that the sentence imposed on count 1 (dangerous driving causing death) was manifestly inadequate. By Notice of Appeal dated 5 August 2009 the Director appealed against the sentence imposed on the first count asking that it be set aside and that an appropriate custodial sentence be substituted to reflect the seriousness of the offence.

We begin by saying that in our respectful opinion the sentence imposed on count 1 was plainly inadequate. It imposed no immediate punishment for this lethal conduct. The salient features of the respondent’s conduct constituting the offence are that:-

• The respondent was driving at speed estimated to have been 60 kph or more, in a 50 kph zone of the main road (Mendana Avenue) through Honiara which is frequented by other traffic and by pedestrians visible to drivers on the day in question at the hour (9.30) of that morning.
  
• At the time of the accident the respondent had been drinking substantially throughout the night of 23 April from about 11.30 pm into the morning of 24 April, and by 9.30 am was, not surprisingly, very intoxicated.
  
• He was also very tired from his having been driving without sleep through the night ferrying relatives or friends to other places in or near Honiara.
  
• It seems clear that the fatal collision with the two pedestrians on the footpath beside (but well off) the road was the result of a combination of tiredness and drunkenness on the part of the appellant, as well as the speed at which his car was travelling. All of these features would have been perfectly obvious to any driver who had not incapacitated himself by drinking too much and then falling asleep while travelling at speed along a busy highway.
  
• Making matters worse, he was not licensed to drive and the vehicle itself was not authorised to be driven.
  

Several comparable decisions were cited to the Court in support of the appeal. Probably the most relevant and recent is Mesepilu v. Regina [2006] SBHC 15. There the respondent had been drinking beer until 11.00 pm, when he invited a group to go with him to another beer-drinking session. They drove to Henderson and consumed more beer at the new venue, which they left at about 2.00 am. On the way back they stopped at or near King George VI School to let someone off. The accused then drove off at high speed. When he got back to the highway he lost control of the vehicle and it turned over. Several of the passengers were injured and one of them was killed. The respondent pleaded guilty and was sentenced in the Magistrates’ Court to 2½ years imprisonment for dangerous driving causing death. On appeal Mwanesalua J dismissed an appeal holding that the sentence was not excessive. In doing so his Lordship referred to three other cases from the Magistrates’ Court in one of which R v. Walekwate (CRC 275 of 2003) the sentence imposed was 3½ years. A similar sentence of 3½ years was imposed in Campbell v. R [1994] SBCA 3, in a case in which the accused at night twice ran over and so killed a man lying drunk in the middle of the road. At first instance in that matter the sentence imposed was 5 years imprisonment, which on appeal was reduced to imprisonment for 3½ years; but, although superficially somewhat similar in seriousness to the present matter, the charge there was manslaughter, to which the accused pleaded guilty.

In our view the appropriate range of sentence in this instance of causing death by dangerous driving is between 3 and 4 years imprisonment. This takes no account of possible matters of mitigation operating in favour of the respondent. In this respect three matters were urged in support of a lesser sentence. One was the respondent’s previous record and his personal circumstances. He has never before been convicted of any offence. He is now some 33 years of age and has been employed for 5 years or more as a legal clerk. That might be expected to have provided him with some experience of the seriousness of offences of the kind. The respondent is not married, but he provides support for a number of family dependants. He co-operated with police and pleaded guilty to count 1 as soon as it had been formulated.

The second major mitigating factor is that the respondent or his relatives have provided some compensation in respect of the death of Ingrid. At a cost of some SB$5,000.00 or more they chartered a vessel in order to transport her body back to Malaita from which she came. There was then a very lengthy series of negotiations with Ingrid’s father about the payment of compensation. It was only after sentencing on 15 August 2008, that the matter was adjourned to 31 October 2008 to allow time for reconciliation and for compensation to be arranged. It was again adjourned until February 2009, but even then it was not until 2 June 2009 that compensation of SB$2,000.00 was finally paid to Ingrid’s father. It was thus nearly 10 months after the respondent entered his plea of guilty that this compensation was paid.

Agreement on the payment of compensation and its amount is regarded here as an important element going in mitigation; but at the same time it cannot satisfy the need for proper punishment in order to emphasise the seriousness of an offence like this. The utility of an appropriate sentence as a public deterrent against lethal conduct cannot be understated.

Finally, there is the element of delay. It is now close to 5 years from the date of the killing in April 2005. Although there is no direct evidence to that effect, it must have been painful for the respondent to have had to wait so long for his fate to be determined. However, the delay in bringing the matter to a conclusion appears to be due to the conduct of both sides in trying to fix on the amount of compensation to be paid by the respondent or his relatives. It is in any event true that it is not easy to arrive at a satisfactory resolution of the question how the matter of delay can be brought into the sentencing equation. At least that must be so in the absence of evidence that the respondent was not himself to blame for the delay in amicably reaching agreement about a compensation figure.

In the result, it is our view that the sentence in this matter was inadequate, having regard to the culpability of the defendant in bringing about the offence in count 1, and the seriousness of its consequences. We would therefore:

1. Allow the appeal against sentence and set aside the sentence imposed on count 1.
   
2. In lieu of the sentence imposed on that count on 10 July 2009, order that the respondent to be imprisoned for 3 years.
   

The suspension ordered on count 1 is naturally displaced. The other orders and sentences are not disturbed.

Sir Robin Auld
President

McPherson, JA
Member

Williams, JA
Member