Regina v Goni; Regina v Rinau [1996] SBHC 105; HCSI-CRC Review 19 & 18 of 1996 (7 August 1996)

CRC Rev. C 19 & 18 96 HC

IN THE HIGH COURT OF SOLOMON ISLANDS

CRC REVIEW CASE NO. 19 & 18 OF 1996

REGINA

-V-

EDDIE GONI

CRIMINAL REVIEW CASE 19 OF 1996

REGINA

-V-

MAELI RINAU

CRIMINAL REVIEW CASE 18 OF 1996

High Court of Solomon Islands
(Palmer J)

Hearing: 7th August 1996
Review Judgment: 7th August 1996

In attendance: R. B. Talasasa For Prosecutions

PALMER J: These two cases have been brought up for review to this Court under section 50(1) of the Magistrates’ Courts Act.

Both cases contained a charge each of section 42(1) of the Traffic Act, to wit, driving whilst unfit to drive through drinks or drugs. In each case both Accused entered pleas of guilty and were convicted. The Accused, Eddie Goni, was fined $20.00 in respect of that charge, amongst seven other related traffic offences, bringing the total of his fine to $160.00. The Accused, Maeli Rinau, was fined $100.00 in respect of a similar charge.

In both cases, there were no records of any orders of disqualification as required by section 28(1) of the Traffic Act as read with Part I of the Schedule to the Act.

Both cases have been brought up for review on two main grounds. First, that the fines imposed may have been inadequate, and secondly, that both Accuseds should have been disqualified for the statutory minimum period of twelve months.

(i) Regina -v- Eddie Goni

The facts as read to the Court and accepted were as follows:

“On 23/3/96 between 1500 hrs - 1600 hrs Defendant drank with friends at Seafront opposite Auki field. Police Officers warned them to leave the place. They did so. Defendant with 2 workmates drove along the Busurata road. After Defendant drove down with passenger on his motor cycle to fish market. They bought fish drove back along the Masina Ruru avenue, the Defendant made a sharp turn and motor cycle unbalanced ran onto loose gravel and overturned. Defendant was hurt, minor injuries. Later he drove away. Matter reported to Police who followed later and arrested him, charged for offences. He was at that time had strong smell of liquor, talked a lot. Observed to be drunk. ----- Accused was drunk placed in the cell. Later released after charged to appear today.”

When passing sentence, the learned Magistrate gave the following reasons:

“Guilty pleas, first offender, Coop., family man. Company authorised to drive motor vehicle when you did not have licence. Company to be blamed.”

This case was first listed for 5 July, 1996 at 9 a.m., but it appears that the Accused was not served. The case was then re-listed for hearing today.

A note on the file shows that the Accused had been served by the Police concerning today’s hearing. No appearance however has been made by the Accused in today’s hearing.

Mr. Ronald B. Talasasa of the Director of Public Prosecutions Office appeared for the Crown. I am grateful to learned Counsel for his submissions and observations.

INADEQUACY OF PENALTY IMPOSED

The fine imposed in respect of this offence was $20.00. Is this adequate in all the circumstances of this case?

First, it must be borne in mind that this is a serious offence. Prior to 1987, the maximum fine permitted by law on first conviction in the Magistrates’ Court was $150.00 or to imprisonment for four months or to both such fine and such imprisonment. In 1987 by the Traffic (Amendment) Act 1987 (No. 21 of 1987), the maximum amount of fine permitted was $400.00 and/or to imprisonment for twelve months. This amendment reflected in some ways Parliaments concern that the pre 1987 penalty was insufficient. It also revealed and confirmed to some extent the general feeling and view that the Courts should take a firm hand when dealing with offenders under this section.

The Magistrates’ Courts must continue to be vigilant and to take and maintain a firm hand with regards to such offences. I take note of the observations of learned Counsel, Mr. Talasasa, that whilst the Police have continued to play and do their part in not only enforcing the law in respect of this offence, and to also educate the public about the dangers of driving when under the influence of drinks (alcohol) or drugs, on one hand, the Magistrates’ Courts on the other hand, appear to be lax.

Whilst the general comments of learned Counsel are taken note of, I must in this review, focus my attention on the facts and circumstances of these two cases.

In the facts of this case, there is a clear admission that this Accused had been drinking that afternoon prior to the commission of the offence. He then drove the motor-cycle, knowing full well that he was under the influence of drink. The records then went on to show that he lost his balance when making a sharp turn. Now it is not known (nothing in the records to show for), the reason for making a sharp turn. In the absence of contrary facts, it can only be presumed that he lost his balance when making the sharp turn because he was unfit to drive through drink (alcohol). It is not unusual to make a sharp turn. Any “normal reasonable driver” would be able to make a sharp turn without losing balance, unless he/she may have been driving carelessly (like overspeeding). There are no facts in the records of the learned Magistrate to suggest that this may have been the case. I am satisfied the conviction was proper and need not be disturbed.

A conviction made under section 42(1) of the Traffic Act must be viewed with graveness. A lot of publicity has been made, asking and pleading with drivers that if “they drink, they should not drive”. Whilst it must be recognised that such a caption is not legally correct, the preventative course it seeks to achieve must continue to be appreciated and observed where possible.

I am satisfied the learned Magistrate properly took into account the guilty pleas of the Accused, his co-operation with the Police and the fact that he was a family man, and a first offender. However, I feel there was an over-emphasis when he stated that the company was to be blamed for authorising him to drive without a licence. That with respect, should not be viewed as extricating him from exercising his own judgment in deciding whether he was in a position to drive or not. His antecedents showed, as aptly pointed out by learned Counsel, that he was a supervisor with a Logging Company, and therefore must be a man of ability and responsibility. This must be balanced with the actions of the company.

When all the relevant factors considered by the learned Magistrate are taken into account, together with the fact that the accident did not involve a collision with any pedestrians, or other vehicles or users of the road, or any other property, and that it occurred in a provincial town - Auki, where there are not that many vehicles and pedestrians on the road, I am still not satisfied that the fine imposed of $20.00 is adequate by any standard; even when the totality of all the offences is considered.

Accordingly, it is ORDERED that the fine of $20.00 in respect of his offence be varied and increased to $75.00. I note that the Accused had paid $160.00 in respect of his fine. He will need to pay therefore a further sum of $55.00, and this is payable within 14 days of receipt of this Order, in default imprisonment for 27 days.

DISQUALIFICATION

As regarding the question of the mandatory requirement for disqualification of this Accused under section 28(1) and Part I of the Schedule to the Traffic Act, no reason was given in the records of proceedings of the lower Court, why this mandatory requirement was not considered. Most likely it was overlooked.

From the records of proceedings, there is no evidence of any “special reason” why the lower Court should not disqualify the Accused for the mandatory minimum period of twelve months. Accordingly it is also ordered that this Accused be disqualified from driving for twelve months with effect from the date of this review. In practice, it will commence from the date he receives this order, but for purposes of calculating the twelve months period, it should commence with effect from today’s date and lapse on 7/8/97.

As an aside, Magistrates should be more careful in taking into account the provisions of the Traffic Act which relate to disqualification of drivers.

(ii) Regina -V- Maeli Rinau

The facts in this case showed clearly that at the time the accused drove motor vehicle x 263 he was unfit to drive through drink (alcohol), and as a result the vehicle he was driving collided with a tree.

The records to some extent are defective because it did not show whether there were any previous convictions of the Accused or not. Magistrates must record whether there are previous convictions or not. If none was available, at the hearing, then an adjournment should be made and the prosecutor required to produce them. The issue on previous convictions is important when passing sentence and also when considering the question of disqualification under section 28 of the Traffic Act.

I do note though that in the mitigation plea of the Accused produced in writing, he stated that it was his first time to appear in Court. The learned Magistrate may have taken this into account when passing sentence. Unfortunately, there is no record of his reasons before passing sentence and so it is not clear whether he did take that into account or not. But even if he did take that into account, together with all the matters raised in the letter of mitigation of the Accused, plus the fact that no other person may have been injured, and that the accident occurred in a provincial town -Auki, I am still not satisfied that the fine imposed of $100.00 was satisfactory in the circumstances of this case. The circumstances surrounding this case are more serious. There was a collision, but fortunately or unfortunately, (depending on how one sees it), it involved a tree and it appears that no one was hurt badly. As to the damage caused to the vehicle (x263), there are no records on this.

Again the element of deterrence should also have been borne in mind by the learned Magistrate when passing sentence. Whilst the Police and other interested persons are seeking to make the message plain and clear to the public, the Courts must be seen to be providing the necessary support base, or taking corresponding action, to ensure that the message is not trumpeted around in vain but that it does have teeth.

In the circumstances of this case, the fine of $100.00 is inadequate, and I ORDER that it be varied and increased to $200.00. The Accused has paid $100.00 and therefore would only need to pay another $100.00 towards his fine; payable in 14 days after receipt of this Order, in default 50 days imprisonment.

On the question of disqualification, the records do not show any “special reasons” why the lower court should not have disqualified him for the statutory minimum period. Accordingly, he is disqualified with effect from the date of this Order and to lapse on 7/8/97. In practice, the disqualification Order will take effect against him on receipt of this Order. Further the driving licence of this Accused should be surrendered to the Principal Magistrate, Auki for his endorsement.

ALBERT R. PALMER
JUDGE