Regina v Iroga [1998] SBHC 85; HCSI-Criminal Review Case 8 of 1998 (19 May 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Review Case No. 8 of 1998

REGINA

-v-

MATTHEW IROGA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
Criminal Review Case No.8 of 1998

Hearing: 11th May, 1998
Judgment: 11th May, 1998
Reasons published: 19th May, 1998

No appearance on behalf of the Crown
C. Solosaia for the Accused

PALMER J.: On 11th May, 1998, I ruled that the accused be disqualified from holding a licence to drive for twelve months with effect from the said date now give reasons in writing for that decision.

This was a case heard in the Magistrate’s Court sitting at Auki and brought up for review under section 50 of the Magistrates’ Court Act. The accused, Matthew Iroga had been charged with two counts under the Traffic Act; one for driving whilst under the influence of drink contrary to section 42(1) and the other, for careless driving contrary to section 39 of the Traffic Act. When the matter came before the learned Magistrate on 9th January, 1998, the count on careless driving was withdrawn and the accused acquitted. On the count of driving whilst under the influence of drink, the accused entered a plea of guilty. He was convicted and fined $200.00, and his driving licence endorsed.

Section 28(1) provides:

“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.”

The offence specified in section 42(1) is included in the list in Part I of the Schedule.

Section 28(1) requires the court to disqualify a person convicted under section 42(1) for a minimum period of twelve months unless there are special reasons which the court thinks fit not to do so. What this means is that unless there are special reasons given and accepted by the court, it is required to impose an order for disqualification of not less than twelve months. If the court finds there are special reasons, it must then go on to decide whether it should exercise its discretion not to disqualify for the minimum period or for a lesser period.

This court has in a previous review judgment expounded the meaning of “special reasons”; see: Regina v George Ale CRC No. 525/96. In that case, it was pointed out that a “special reason” was one special to the facts of the particular case, i.e., special to the facts which constitute the offence; and not a circumstance peculiar to the offender.

The records of proceedings do not show why the mandatory order for disqualification was not imposed. No reasons are given. We do not know therefore whether the learned Magistrate found special reasons and if so, what these were.

On review before this Court, Mr. Solosaia for the Accused seeks to rely on a number of factors which he considers justify the exercise of the discretion of the learned Magistrate in favour of a non-disqualification order.

The first matter raised relates to the facts of the case. He submits that the accused had picked up a police officer to assist with driving as he was obviously drunk, but when they arrived at Auki Market, the police officer decided to get off the vehicle and told him to drive home as he would be alright. He was on his way home when he lost control and drove into a ditch.

With respect, I do not find these circumstances as amounting to any special reasons. It is clear the accused was drunk and unfit to drive. He himself was aware of that fact. This was the very reason why he had asked an off-duty police officer to assist with driving. When the police officer decided to get off the vehicle at Auki Market, the accused with respect had no alternative but to walk home. The off-duty police officer had no right whatsoever and it was wrong of him, to tell the accused that it was alright for him to drive home.

The accused should know better. The fact that an off-duty police officer tells him that he should be alright to drive home, does not in any way excuse him from exercising his personal judgment in the matter. He couldn’t have been misled by what the off-duty police officer told him. He knew it was wrong to drive when under the influence of drink and thereby unfit to drive. It is clear the accused knew he was unfit to drive when he asked the off-duty police officer to assist in the first place. It must be understood that the off-duty police officer was under no obligation to drive the vehicle for him. If he refuses, then that is the end of the matter. In the same manner, when the officer decided to get off the vehicle at Auki Market, that places no further obligation on him and his legitimate actions should not be misconstrued against him. Irrespective of what was alleged to have been said, that makes little difference whatsoever to the decision by this accused to get behind the wheel in any event and drive home. It was not the off-duty police officer who was drunk and affected by drink. It was the accused himself. He bears the responsibility of making the crucial decision to get behind the wheel and drive in his drunken and unfit state.

I accept the off-duty police officer should never have told the accused it was alright to drive home. It is never alright to tell someone who is clearly drunk to drive home, and it was wrong of him to say that. The fact remains this accused decided to take advantage of the situation and attempted to drive home. The facts showed only too well that the accused was clearly unfit to drive. He ended up in a ditch at the side of the road.

I am not satisfied he was misled into driving by what the off-duty police officer might have said to him. He knew all along he was unfit to drive. That couldn’t have amounted to any special reason.

The second reason given was related to his involvement with Rotary International which required him to move around the various projects coordinated around Malaita by vehicle. Unfortunately, this had nothing to do with the offence. It only related to hardship in his work or employment. That does not amount to a special reason.

In the circumstances, I am not satisfied that the learned Magistrate had any discretion not to order the accused to be disqualified.

ORDERS OF THE COURT:

1. Order the accused, Matthew Iroga to be disqualified from holding a licence for twelve (12) months with effect from Monday 11th May, 1998.

2. The accused to surrender his driving licence to the Principal Magistrate (Malaita) for endorsement.

ALBERT R. PALMER

THE COURT.