Haomae v Regina [2001] SBHC 119; HC-CRAC 106 of 2001 (25 June 2001)

HIGH COURT OF SOLOMON ISLANDS

CRIMINAL APPEAL CASE NO. 106 OF 2001

HOWARD HAOMAE

-V-

REGINA

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 25TH JUNE 2001
JUDGMENT: 25TH JUNE 2001

A & H Lawyers for the Appellant
J. Faga for Prosecution

PALMER J.: The Magistrates’ Court convicted the Appellant on 15th May 2001, on a charge of using an unlicensed motor vehicle on a public road contrary to section 7(1) of the Traffic Act [Cap. 131]. In passing sentence, the presiding Magistrate ordered him to be disqualified from driving for twelve months. Appellant now appeals against that order on the ground inter alia, that it is erroneous in law. Leave was also sought and granted to adduce further evidence in anticipation that this would be necessary to mitigate period of disqualification ordered. This however turned out to be unnecessary.

The offence of driving an unlicensed motor vehicle is not one of the offences listed in the Schedule to the Traffic Act. Section 29(1) and (2) specifies the types of offences under which the court may order disqualification. Those offences are listed in Part I and II of the Schedule. The Magistrates’ Court does not have power to order disqualification in respect of the offence of driving an unlicensed motor vehicle. The order of disqualification dated 15th May 2001 imposed by the presiding Magistrate therefore must be set aside as erroneous in law.

On the other hand, the presiding Magistrate did not pass any sentence on the Appellant. It appears the order for disqualification was used as the penalty. This is not the correct approach. The penalty prescribed for an offence of driving an unlicensed motor vehicle contrary to section 7(1) is a fine of five hundred dollars or imprisonment for six months or to both. The correct approach is first, to determine the appropriate penalty to be imposed, then go on next to consider whether an order for disqualification is mandatory under Part I or discretionary under Part II of the Schedule. If discretionary, he should then go on to consider the period of disqualification to be imposed taking into account the circumstances of the case, including the nature of the offence, the antecedents of the appellant or accused, and the possible effects on his job. For instance, if a person drives to earn his living, such as a bus driver or a taxi-driver, instead of ordering him to be disqualified for 12 months, the court might impose an order for disqualification of say 9 months, or instead of 6 months, 3 months.

During the hearing of the appeal I decided to exercise the powers conferred on this Court under section 293(2)(a) of the Criminal Procedure Code [Cap. 7] and pass sentence, which had been omitted by the court below. Opportunity was given to Counsel for the Appellant to make any relevant submissions as to the appropriate penalty to be imposed. Of significance was the fact that the offence was not intentional, more a spur of the moment thing. The additional evidence adduced showed that the vehicle was undergoing repairs for vehicle inspection at the time of commission of offence. I also can treat the Appellant as a first offender, despite a previous conviction on careless driving. Taking all matters into account I am satisfied a fine of $60-00 would be appropriate to be payable by 4.00 p.m., in default imprisonment of 30 days.

ORDERS OF THE COURT:

1. Appeal upheld.
   
2. Set aside order for disqualification of twelve months and endorsement of driving licence imposed on 15th May 2001.
   
3. Impose fine of $60-00 to be paid by 4.00 p.m. in default thereof thirty days imprisonment.
   

THE COURT.