Regina v Wale [1997] SBHC 72; HC-CRR 023 of 1997 (12 September 1997)

HIGH COURT OF SOLOMON ISLANDS

Criminal Review Case No. 23 of 1997

REGINA

-V-

DAEOLO WALE

High Court of Solomon Islands
(Palmer J.)

Hearing: 12th September, 1997
Judgment: 12th September, 1997

J. Faga for the Prosecution
Defendant served but made no appearance

PALMER J.: The accused had been charged with three counts in the Magistrates’ Court:

count (1) being for careless driving contrary to section 39 of the Traffic Act;

count (2) being for driving whilst unfit to drive contrary to section 42(1) of the Traffic Act; and

count (3) being for taking and driving away a motor vehicle without the consent of the owner contrary to section 58(1).

He entered guilty pleas in respect of counts (1) and (2) and a not guilty plea in respect of count (3). He was subsequently convicted of count 3 and sentenced together on all counts on 25th June, 1997. He was fined $100.00 each in respect of counts (1) and (2) and $60.00 in respect of count (3). The learned Magistrate did not disqualify the accused under count (2). His reasons were as follows:

"The law requires that I disqualify your driving licence on count 2, but I have to consider the possibilities in view of your benefits and the fact that driving is your only means to get money to provide for your family, and to continue to repay the $4,000.00 in damages you have caused.

I feel in the circumstances that if I disqualify your driving licences, you will definitely be deprived of your job and would obviously find it difficult to get money to repay the $4,000.00 and would deprive your family of your financial obligations to them."

This case came for review in August and a direction issued accordingly for review on 12th August, 1997. He was served with the notice of hearing by Police Auki on the 5th September, 1997 at 1300 hours at Auki for the hearing today 12th September, 1997. No appearance has been entered by the accused. Mr Faga of the Director Of Public Prosecution’s Office appeared on behalf of the Crown.

Section 28(1) of the Traffic Act requires a mandatory disqualification for persons convicted of offences specified in Part I of the Schedule to the Traffic Act unless there are special reasons:

"Where a person is convicted of an offence specified in Part I of the Schedule the court shall order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified."

Section 42(1) is listed under Part I of the Schedule and therefore any person convicted under this offence must be disqualified unless there are "special reasons" found by the court.

For an explanation as to what constitutes "special reasons" see Criminal Review Case No. 525/96 - Regina v. George Ale. Whilst the learned Magistrate recognised that in law he had a duty to order disqualification for the statutory minimum period, he erred when he ruled that he had a discretion not to order disqualification pursuant to the employment and family needs of the accused. With respect, the learned Magistrate had no discretion unless there are special reasons present. Employment and family needs are not directly connected with the commission of the offence of driving whilst under the influence of drink and hence do not amount to "special reasons". A special reason is one special to the facts which constitute the offence (see text on "Road Traffic Offences" by G. S. Wilkinson, fourth edition 1963 at page 312). The learned Magistrate accordingly had no discretion not to order disqualification for the statutory minimum period. The law requires that he be disqualified for the statutory period of 12 months and I do so order.

ORDERS OF THE COURT:

1. In addition to the fine imposed in respect of count 2, ORDER that the accused, Daeolo Wale, be disqualified for 12 months with effect from date of this order. (Note, because the accused resides in Auki, Malaita Province, this order shall take effect upon receipt).
   
2. The accused shall present his driving license to the Magistrate Court for endorsement with immediate effect.
   

THE COURT.