Wilikai v R [1981] SBHC 15; [1980-1981] SILR 81 (9 September 1980)

[1980-1981] SILR 81

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No. 13 of 1980

WILIKAI

v

R.

High Court of Solomon Islands
(Daly C J)
Criminal Appeal Case No. 13 of 1980

9th September 1980

Criminal law - Appeal against sentence - whether excessive Traffic Act Ss 34{b), 40(1), “special circumstances” defined, s. 35 (1), Juvenile Offenders Act 1972, s. 16, Magistrates’ Court Act, s. 50, Criminal Procedure Act.

Facts:

The appellant was charged with driving whilst disqualified contrary to section 34 (b) of the Traffic Act and exceeding the speed limit contrary to section 40 (1) of the Traffic Act on July 24 1980.

He pleaded guilty to both offences and offered no mitigation. The Magistrate imposed sentences of three months’ imprisonment on the first count, two weeks imprisonment on the second count, both sentences were to run concurrently. The Magistrate also disqualified the appellant from driving for 12 months on the first count. The appellant appealed on the ground that the sentences were excessive in all the circumstances.

On June 11 1980 the appellant had been disqualified from driving for 18 months following a conviction under section 42 (1) of the Traffic Act (driving a motor vehicle when unfit to drive through drink or drugs).

Held:

1. That unless the Court finds “special circumstances” it is obliged to sentence an offender against section 34 (b) of the Traffic Act to imprisonment;

2. The Court may impose a fine on an offender against section 34 (b) of the Traffic Act if there are “special circumstances” surrounding the offence and not the offender;

3. Circumstances special to the offender must be disregarded;

4. The burden of proving “special circumstances” and special reasons is on the accused;

5. That although the appellant is a young person there was no alternative open to the Magistrate to deal with the appellant in any other way specified in section 16 of the Juvenile Offenders Act 1972;

6. That accordingly, the appeal is dismissed and the sentences of imprisonment and order for disqualification confirmed and varied under section 50 of the Magistrates’ Court Act to include an order that particulars of the convictions recorded be endorsed on the appellant’ s licence.

Cases referred to:

Lines -v- Hersom (1951) 2 All ER 650
Jones -v- English (1951) 2 All ER 853

Appellant: in person
For Respondent: F Mwanesalua

Reported by: R Kochowiecz

Daly CJ: The appellant appeared before a Principal Magistrate sitting at Honiara on 29th August, 1980 when he pleaded Guilty to two offences:

Statement of Offences

1. Driving whilst disqualified, contrary to section 34(b) of Traffic Act.

2. Exceeding speed limit, contrary to section 40(1) of the Traffic Act.

Particulars of Offences

1. That on 24th July, 1980 he did drive a private motor vehicle No. 3686 on a road whilst disqualified.

2. That on 24th July, 1980 he did drive a motor vehicle to wit a private car within Honiara Town Speed Limit area on a road in excess of 30 mph to wit 45 mph.

The appellant offered no mitigation and the court imposed sentences of three months’ imprisonment on Count 1 and two weeks’ imprisonment on Count 2 (to run concurrently) and also disqualified the appellant from driving for 12 months on Count 1. Against these sentences the appellant now appeals on the ground that they were excessive in all the circumstances.

The facts of the case were that on 11th June, 1980 the appellant had been disqualified from driving for 18 months following a conviction for an offence contrary to section 42 (1) of the Traffic Act (driving a motor vehicle when unfit to drive through drink or drugs). On the 24th July, 1980 vehicle driven by the appellant was stopped in a speed check. It was being driven at 45 mph. in an area limited to 30 mph. As the learned magistrate observed this was less than 1½ months after the disqualification.

The offence of driving whilst disqualified is created by section 34 (b) of the Traffic Act which reads:-

“If a person disqualified for holding or obtaining a licence –

(b) while he is so disqualified drives on a road motor vehicle, or if the disqualification is limited to the driving of a motor vehicle of a particular class or description, a motor vehicle of that class or description;

he shall be guilty of an offence and liable to imprisonment for six months, or, if the court thinks that having regard to the special circumstances of the case a fine would be an adequate punishment for the offence, to a fine of two hundred dollars or to both such imprisonment and such fine.”

This section is in identical terms to section 7 (4) of the English Road Traffic Act 1930. The English courts have held that these words impose a limitation on the powers of the justices. Goddard L C.J. said in Lines v Hersom (1951) 2 All ER 650 at 652: -

“the fact that the words “having regard to the special circumstances of the case” are inserted in a sub-section in relation to a mitigation of the penalty shows that Parliament intended to limit the discretion of justices. Therefore, they have not got an unfettered discretion under s. 7 (4) to refrain from sending an offender to prison. They can only do so if there are special circumstances which so entitle them. Prime facie, the punishment for an offence under s. 7 (4) is imprisonment”.

It is clear (and I respectfully agree with the words quoted above) that unless the court finds “special circumstances” it is equally obliged to sentence an offender against section 34(b) of the Solomon Islands Traffic Act to imprisonment.

I also agree with Hilbery J. who said in Lines v. Hersom (ab.cit.) at p. 655):

“I regard the words that the court think a fine would be an adequate punishment for the offence as of some importance as showing that in this section the statute is contemplating, not the offender, but essentially, the offence, and the special circumstances which the court must find are circumstances of the case and not of the offender. There must be an adequate punishment for the offence, disregarding any circumstances special to the offender.”

Therefore the question in this appeal so far as the sentence of 3 months’ imprisonment is concerned resolves itself as “were there special circumstances of the case, disregarding any circumstances special to the offender, which should have led the learned magistrate to say that a fine was an adequate punishment?”

No special circumstances were urged to the learned magistrate. In this court it was suggested that the appellant was not aware he had been disqualified at the earlier proceedings on 11 June, 1980. He called no evidence himself. The burden of proving “special circumstances” and “special reasons” is on the accused and he must do so by means of evidence and not merely by making statements (see Jones v. English (1951) 2 All ER 853).

The appellant failed to discharge that burden in the Magistrate’s Court and by declining to give evidence he has failed to discharge it in this court. Such evidence as there is, shows, as one would expect, that the appellant was informed of his disqualification. I accept that evidence.

That being so the Magistrate’s Court had no choice but to uphold it. Such a sentence was inevitable in law, in my judgment, on the facts should the law have given a complete discretion. Although this appellant is a young person there was no alternative open to the Magistrate’s Court to deal with the appellant in any other way specified in section 16 of the Juvenile Offenders Act, 1972.

The sentence of three months’ imprisonment on Count 1 is upheld together with the concurrent sentence of two weeks’ imprisonment on Count 2.

The disqualification from driving is as required by law and is upheld.

The learned magistrate omitted however to make the orders required by section 35(1) that particulars of these convictions be endorsed on the licence of the offender. In exercise of my powers of review under section 50 of the Magistrates’ Courts Act I order that the sentence be varied to contain such orders.

The appeal is dismissed and the sentences of imprisonment and order for disqualification confirmed but under section 50 the sentence of the court is varied to include an order that particulars of the conviction recorded be endorsed on the licence of the appellant.

As the appellant has been on bail since 29th August, 1980, his sentence shall be computed from to-day in accordance with section 289 (2) C.P.C.