Regina v Matamu [2010] SBHC 33; HCSI-CRC 78 of 2010 (21 May 2010)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona J)

Criminal Case No. 78 of 2010

REGINA

V

MISI MATAMU

Dates of Hearing: 30th April 2010, 20th May 2010
Date of Sentence: 21st May 2010

For the Crown: Ms Christensen
For the Accused: Ms McSpedden

SENTENCE

Faukona J: I have imposed the tariff sentences in this case on 21st May, 2010, as agreed upon by the Counsels after plea of guilty were entered and conviction. I have promised to deliver the reasons for the sentence in due course, which I now do so.

2. The accused was charge for two offences.

Count 1: Causing deaths by reckless or dangerous driving contrary to section 38 of the Traffic Act.

Count 2: Endanger safety of person traveling by vehicle contrary to section 240 of the Penal Code.

3. On 20th April 2010, the date the accused was arraigned, a plea of guilty was entered to both charges. By pleading guilty, the accused affirms that he accepts full criminal responsibility; including accepting that he breaches all the elements of the charges.

The Facts

4. On the 13th June 2008, the accused and Mr.Ulu both PPF Officers on rostered off duty, attended a gathering and a barbeque at Kwan Amataga's house at Ngossi, Honiara. The accused and Mr.Ulu were two Police Officers from Samoa contingent serving under RAMSI in Solomon Islands, since 19th December 2007.

5. Though there are various versions as to the time they arrived at Amataga's house, it is an accepted fact that both men arrived at the house roughly before 6pm. After arrival they positioned themselves downstairs. Both men were invited by Mr. Pernie Matautia another Samoan.

6. The purpose of the gathering was to discuss the invitation by Solomon Islands Government for the Samoan Community living in Honiara to participate in the national trade and culture show that will eventuate in July 2008.

7. At the downstairs of the house, the accused and his friend started drinking SB Can beer. There is variation of evidence as to the amount consumed and the levels of intoxication of the accused and his friend. However three cartons of Solbrews were consumed by eight people including the accused and his friend. The beers were served to them by the security guard of the residence. Four people were drinking upstairs and the accused, his friend Ulu, and two other girls were drinking down stairs.

8. About 7:40pm Samoan Contingent Commander, Mr Keti Fa'aletatau and a Senior Constable Vani Vai, arrived at Kawn's residence. They were there purposely to borrow a tape for a dance practice. The Commander saw the accused and Mr. Ulu at the house sitting down stairs drinking cans of beer. Mr. Toloafoa then informed the persons upstairs that RAMSI PPF officers were not allowed to consume alcohol or be outside of GBR without his and Mr. Vai's knowledge. Shortly after this the Samoan Contingent Commander and the Senior Constable left. As they were leaving Mr. Taleafoa asked the accused to get into their car and followed them to GBR. It was about 8:10pm.

9. The accused and Mr. Ulu did not leave the party immediately after the Contingent Commander left but continue Socialising. Eventually, at approximately 9 pm both accused and Mr.Ulu left when there was no beer left in the freeze. When they left it was the accused who was driving the vehicle.

10. As they left the party the accused was driving at a high speed that was higher than the speed that vehicles usually travel when driving on these roads, and approaching the moderately steep downhill road.

11. The vehicle then went down the Ngossi/Tasahe hill. It did not travel on proper lane and was zigzagging across the lanes. It then rolled three times and struck Ms Illabae. The vehicle, its occupants and Ms Illabae and the pedestrians, ended up at the bottom of a gully along the eastern side of Ngossi drive.

12. The group that with the deceased after the vehicle leave to rest at the bottom of the gully to the edge of the road, called out to the deceased but there was no response. The deceased was found under the right front side of the vehicle.

13. The deceased and the passenger (Mr. Ulu) were taken from the scene to the hospital. After some time at the scene, the accused returned to GBR.

14. Doctor Toito'ona Wabo was present at the scene attempted to apply resuscitating method to the deceased whilst traveling to the hospital but of no benefit. After some attempt at the hospital the victim showed no signs of reviving, hence pronounced dead.

The Crown Case

15. The Crown Case is that the accused had consumed alcohol after which he drove at excessive speed and on the wrong side of the road. This was driving in a manner that was deliberate reckless for as sufficient period of time before the incident.

16. Driving in a manner as he did was the direct cause of the vehicle roll over and subsequent crash into the gully, and fundamental cause of the death of Miss Illabae, and cause the safety of his passenger to be endangered.

17. The Crown does not concede that a sharp steering action or interference with the steering wheel was done by Mr. Ulu, however, it is accepted that whether Mr. Ulu did this cannot be independently excluded on the evidence. Irrespective of whether this action occurred and by whom it was done, it was the manner of the accused's driving with excessive speed and on the wrong side of the road that cause the death of Ms Illabae.

The Defence Case

18. The defence case is that there are discrepancies in the agreed facts between various witnesses as to the matters of a fact.

19. That the accused by his admission drank four cans of Solbrew at Kwan's house. No witness saw he consumed more than four. Therefore no significant involvement of alcohol in this matter.

20. Whilst there was excessive speed and deviation from the correct side of the road demand caution, Mr Ulu grabbed the wheel and thus the over compensating and zigzagging occur which ought to be taken on the balance of probability. The dangerous and reckless driving attributable to him is speed and driving prior to the passenger's intervention. Therefore it cannot e held to be part of a deliberate recklessness.

Sentencing Principle

2l. Before I turn to the aggravating features and mitigating factors, I have reminded myself of the guiding principles of sentencing enunciated in the case of [1]Regina -v- Kata and Others(1), which is becoming and too oftenly rely on this jurisdiction.

"There is no doubt that sentencing offenders is a difficult task. It is important that, whilst acknowledging the independent discretion that must be exercised by each judge (or Magistrate) in each case, the courts must strive for coherence and similarity of outcome in similar cases. The allowances must be made for differences, both in objective circumstances and subjective features. At the same time, each judge or magistrate needs to consider what their judicial colleagues have done in other cases with a view to attempting to achieve a collegiate and coherent system of sentencing. Otherwise, the goal of equal justice will be frustrated and the administration of criminal justice tarnished by the perception that it represents the purely personal opinions of individual judge and magistrates and offenders whose offences are similar and personal situations much the same will suffer sentences that differ for no apparent rational cause, whilst similar sentences may be imposed where offences vary significantly in gravity and subjective features are very different. Of course, uniformity is not the goal: the circumstances of particular offences more often than not will vary greatly, as will subjective factors. The objective is to achieve a coherent system of sentencing in so far as that can be achieved, whilst recognising and respecting the obligation of each judicial officer to exercise his or her independent discretion and Judgment. Accordingly, it is not only proper but desirable that judges and magistrates should be informed of sentences that have been imposed by their colleagues and bear those outcomes in mind in considering his or her particular case. Over time, a pattern will emerge as the number of cases increase and, hopefully, a range of sentences can be discerned. The presence of the pattern and demonstrating of a range obviously requires more than just a few cases, although it is of course inevitable that, towards the beginning of this process, the number of cases will be small."

Aggravating features:

The accused had been drinking:

23. The accused admits drinking four cans of solbrew beer at a party at Kwan's house prior to driving the vehicle. The counsel for the crown submits that there are evidences which support the accused could have drunk more other evidence supports the accused version. In such situation of inconsistencies the accused version must be accepted. However, in an English Court of Appeal (Criminal Division)[2] Robert Charles Cooksley and two Others v R(2), where their Lordships list down in para15(a) aggravating facts including alcohol as one of them.

"The consumption of drugs (including legal medication known are to cause drowsiness) or of alcohol ranging from a couple of drinks to a motorist pub crawl."

24. That is a clear indication that drinking a couple of beer as four falls within aggravating factors perimeters. The gravity of aggravation can be assessed from the consequences that flows from affection by alcohol.

Traveling at very high speed/manner of driving

25. It is admitted that the accused driving was at excessive speed, and possible deviation from the correct side of the road. The argument to rationalize that the accused drove zigzagging and explicable and hence loss control of the vehicle ensued after the passenger intervene. As a result, the over steering cannot be part of any deliberated recklessness.

26. The Crown Counsel does not concede with such action or interference. It was the manner of the accused's driving with excessive speeding and driving o the wrong side of the road that cause the death of Miss Illabae. The theory that the passenger intervene with the accused driving, is an individualistic theory not supported by any other evidence. Whilst I do not support such theory, the manner in which the accused was driving cannot be part of deliberate reckless. But it is because of excessive speeding with some degree of alcohol affection made it difficult for the accused to control the vehicle.

Duration of dangerous driving

27. There is evidence that as soon as the accused and Mr. Ulu left Mr. Kwan's house the accused was driving in a dangerous manner by speeding beyond advise limit. Eye witness who saw the vehicle at different points before the tragic accident indicated the accused was speeding beyond normal speed. And it started somewhere beyond their located residence. The speeding must e for sometime before it went passed their house.

Number of people put at risk

28. The manner in which the accused was driving which eventually did roll over into the gully jeopardize his passenger who was sitting beside him. He did sustain some injuries. The deceased with other two friends who were on footpath, returning from Church service had to risk their life jumping out of the road. The other two survived the tragic accident whilst the deceased could not able to make it.

Police Officer

29 The accused at the time of offending was a Samoa Police Officer working for RAMSI through Participation Police Force (PPF). He is a highly respected person and comes from a well regarded family of law enforcement officers. As a foreign Police officer serving in Solomon Islands, is entrusted to self discipline and to uphold the law at all times, whether off or no duty. So that performance of his duties as an advisor and mentor cannot be perceived as compromise.

30. The people and Government of Solomon Islands entrusted all PPF offices to e well conducted at all times, and of a highest standard of performance. In particular where Solomon Islands is in the process of reestablishing the community's trust in its Police force and PPF and RAMSI have a significant role to play in this. Offending of this type by the accused is capable of diminishing the progress mad and is condemned in the strongest term. Not only that but the accused has brought disrepute to himself, his family, his country, and PPF and RAMSI. Instead the accused behavior and offending conduct on off duty amount to aggravating feature.

31. Where Police Officer indulge in offending, whether if be a offence under the Penal Code or Traffic Act, it is always an aggravating factor, considering their position and public trust on tem to uphold law and order at all times. The case of R -v- Rahe[3] regards the accused's position as a Police officer to be an aggravating feature in general. The case supports the general position and not the specifics where distinguishable actions were premeditated or intentional as required to be proved in other offences.

32. The presence of there aggravating features increases the culpability and places these offences at the upper end of the scale.

The Mitigation Factors

33. There are a number of mitigation factors submitted by the crown on behalf of the accused's Counsel on behalf of the accused to be considered by this Court.

Previous Good Character

34. There is no doubt that the accused is a person of past good character. At the time of the offence he was a Police Officer. Character reference letters tendered on his behalf show he is highly regarded in his family, profession, Parish and Community. He is a compassionate humane and decent man, loved by his family and peers who has no criminal antecedents. In this matter he acted out of character in an isolated incident.

35. Whilst the accused has excellent standing history and background with high standard of professionalism displayed as a Police Officer that has swallowed into a very different and demeaning character that night. The accused and his friend Ulu left GBR without the permission of the Samoa Contingent Commander. It was indeed a surprise for the commander to see accused and friend at Kwan's house. He approached those who may seem responsible for organizing the gathering and stopped them not to give further beers to the accused and his friend and told both men to return to GBR immediately which they did not.

36. That is a clear show of a very indiscipline Police Officers. They have failed to comply with their own rules, though off duty. It may be regarded as one of the isolated incident, but it depicts one of a character developing or had been developed but enveloped.

37. It has been acted the hardship the accused encountered from day one. After commission of the offence he was repatriated from his RAMSI position at a significant financial loss and of course upon conviction his carrier will be terminated. It is expected that imprisonment sentence will have a direct economic and obligation impact on the wife and children. It will virtually deprive him of his job and a regular paid salary. The respect for a carrier in policing be diminished. All these are usual consequences of the imprisonment of a spouse. Not only that but it adds shame and guilt as well.

Hardship in custody

38. In Solomon Islands there is only one hall that accommodates general prison population. This may vary from country to country. However, imprisonment is indeed a form of punishment which the accused has to face any prescribed penalty set by our laws. The consequence of incarceration restricts association with relatives and friends. As a prisoner he is expected to encounter some hardships, vulnerability as all prisoners do. It is a new experience in a new environment. Whatever other prisoners might have gone through and experience will also be experience by the accused. There is no special treatment to anyone, and different accommodation to anyone. Prisoners are prisoner and they experience equal treatment, and no one gets advantage than others.

Early plea of guilty

39. I appreciate the accused for entering a plea of guilty at the first earliest opportunity. As soon he took legal advice after returning from Samoa for trial, he entered a plea of guilty on 30/4/10. That of course attracts reduction of sentence on two bases. First he demonstrates contrition ad true remorse. The second is in recognition of the utilitarian value of the plea in obviating a lengthy trial where there were eighty three. Crown witnesses listed in the information, some of whom are from overseas. As such a discount is appropriate. I have taken into account what the Chief Justice said in Gerea -v- R[4] concerning one third or one quarter reduction from the intended sentence to impose.

40. Whilst that may be no, there is no fix formular set for sentencing. Each case depend on it own set of facts, and the obligation of the exercise of discretionary power of the Court. Though strive must be had for coherence to be achieved.

Emotional and Psychological Suffering

41. There is a report available before the Court by a Clinical Psychologist namely Francine O'Meara Cade, recommending that accused will almost unable to receive recommended treatment for PTSD condition in any prison. His symptoms of extremely severe anxiety and depression are likely to exacerbate in excessively stressful environment as in prison. The therapist goes so for to advert to monitoring for suicide risk. The accused express sorrow and remorse when he heard of the victim's death and very upset and emotional.
    

42. This submission is necessary in circumstance were the Court is considering a non custodial sentence. In this case it is almost redundant to consider such. Both counsels had consented during the course of the submissions that a custodial sentence is eminent. What left for this court is to consider the length of the custodial sentence to impose.

42. In any correctional institute medical treatment for prisoners are always and readily available.

Genuine desire for and attempt to effect custom Reconciliation and Compensation.

43. On the date of sentence, the much talked about custom reconciliation and compensation is yet to be materialized. Instead the Court was informed that the accused will leave Solomon Islands at 2:00 pm on the same date. It is apparent that there is no sufficient time to conduct any ceremony. This seems to confirm the position of the accused as to whether he is genuine or not. The same applies to the Government of Samoa represented by their Commissioner of Police which supports the accused in his effort to effect custom reconciliation and compensation. I find it unconvincing to think the accused has a genuine desire to reconcile and pay compensation to the deceased family. As such it would be fitting to reserve any discount that would have accorded to the accused in mitigation.

Remorse

44. I have accepted the fact that the accused fest remorse for what he had done, as soon as he received the news that the accident he involved in had killed someone. However, immediately after the incident and in the days following, ad eve as shown in the written submissions, the accused did not demonstrate a genuine remorse and contrition, but rather try to reduce by attempting to shift his culpability and responsibility for his serious offending.

45. Whist there is no challenge to the Psychologist report, it cannot be accepted and insist to be blaming the passenger for grapping the steering wheel or claiming the other vehicle he had to miss. Such assertion cannot be maintained throughout because the accused had pleaded guilty. To stand firm on the issue of shifting criminal liability, in my view would be proper if the accused pleaded not guilty and argue his case. It would be an abuse of process to do so now.

46. I consider that the accused was confused immediately after the incident and things he said might result from dazed, confused and of course some degree of alcohol affection. I also consider that he cooperated with the authorities ad participated in the record of interview, and from the start he had conceded he was the driver of the vehicle.

Comparative Sentence

47. Counsel for Crown submits that the appropriate Sentence range for offence of this type is in R -v- Kaukui [5] in which the Court of Appeal held that a sentence of 3-4 years imprisonment was appropriate.
    
48. She also submit that the offending in Kaukui has case similar features to the offending by the accused. The speed in Kaukui was not as significant a feature as the excessive speed by the accused. The aggravating high speed by the accuse brings the manner of driving to a serious feature as compared in Kaukui's case.
    
49. The mitigating factors in Kaukui are similar to those in the accused favor, for instance pleaded guilty, cooperated with Police, had stable employment history in a reputable occupation and he supported dependants.
    
50. There are other mitigation matters considered in Kaukui's favor which the accused cannot rely on. They are such matters as delay. This additional matter went in Kaukui's favours resulted in reduction of the sentence.
    
51. Counsels refers to the case of R -v- Boswell[6] which set out aggravating features similar to this case. At page 5 the Court said;
    

......."but these aggravating features or an aggravating feature is present then a custodial sentence is generally necessary.... Drivers who for example indulge in racing on the highway and/or driving with reckless disregard for the safety of others, after taking alcohol, should understand that I bad cases they will lose the liberty for two years or more".

52. The custom reconciliation and ceremony which the accused expressed willingness to participate and what compensation he intends to offer is unknown, in fact never been eventuated. In Kaukui's Case custom compensation was paid and himself assisted the relatives of the deceased to send the dead body home.
    

53. On the other hand the Counsel for the accused argued by distinguishing that this case is different from Kaukui, because Kaukui had been embarked on a proven drunken spree to the extent he appeared to have been slept at the wheels. His speed estimate was between 60-90 kph. Nor is this case analogous to Campbell, as the charge the was manslaughter and were serious which the court impose three and half years imprisonment.

54. She argued that the appropriate sentence for the offence under section 38 of the Traffic Act should e in the area of two and half years imprisonment. The Counsel refer to the case of Mesepitu -v- R[7] where Mwanesalua J confirmed the Magistrates Court sentence of Two and a half years for offence of dangerous driving causing death. The prisoner had consumed beer until 2 am. Driving at high speed where he lost control of the vehicle over at Panatina with six passengers injured and six fatally so. Custom compensation was paid. In addition to the second count of endangering his passenger, as the charge rose from the course of driving it is appropriate that any sentence be totally concurrent.
    

Deterrence

55. The tariff sentence that have been imposed has been taken into account the principle of deterrence which is important in cases of dangerous driving because it is directed to all people that drive motor vehicles. This can be differentiated from other offences where deterrence is only directed to minority of like minded persons who might contemplate committing the offences such as robbery or sexual offences.
    

In Cooksley and Anor -v- R[8] where His Lordship Chief Justice said at para 11;

".........it is important for the court to drive home the message to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standards of driving. Motor vehicle can be lethal if they are not driven properly and this being so, drivers must know that, if as a result of their driving dangerously a person is killed, no matter what the mitigating circumstances, normally only a custodial sentence will be imposed. This is because of the need to defer other drivers from driving in a dangerous manner and because of the gravity of the offence."

56. Counsels have submitted their views as to the most appropriate sentence to impose in the circumstance of this case. At the outset I would agree with the accused's Counsel that Campbell's case is not appropriate.
    
57. In all the three cases Kaukui's, Mesepitu's and this one, there is alcohol involved. In this case the level of alcohol is less that the other two. There is excessive speed in all three cases. The accidents the three cases involved in fatally caused the death of one person and put at risk the others. In Kaukui and Mesepitu's cases both accused paid custom compensation. In this case the accused agreed to but has yet to pay any compensation. Kaukui has a permanent job with one of the Law firms in Honiara and supports dependants. The accused is a Samoan Police Officer serving in Solomon Islands under RAMSI and also maintain wife and children.
    
58. In all three cases the accuses plea guilty, with no previous convictions; express remorse for the wrong they have done.
    

59. In Kaukui's case there was delay, but not in this one.

60. It therefore appears that the features in Kaukui's case are more similar to this one and some in Mesepitu's case. However, the difference is Kaukui was fully drunk at the time of offending, whilst the accused in this case was not but there was some level of intoxication influence. Kaukui had paid custom compensation. The accused in this case is yet to pay any custom compensation.
    
61. The sentence I have arrived at on 21st May 2010, was to reflect the seriousness of the offence, the manner it was committed, human life was taken, and of course by a Police Officer, bearing in mind the deterrent element.
    
62. I have also considered the accused's plea of guilty which save courts time and resources. The accused is the first offender with good working background, cooperated with the authorities during investigations. He has good relationship with his own community and peers ad supports wife and children. I have also considered letters of reference and psychological report.
    
63. That concludes the fact that the subjective features of the accused should not outweigh the objective seriousness of the offence. And that puts the starting point above Kaukui's case. I all circumstances the accused was convicted and a sentence of three and half years imprisonment for the first count, and six months for the second count. Both sentences to run concurrent.
    
64. That affirms the tariff sentences delivered on 21st May, 2010 as appropriate.
    

The Court.

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^[1] SICOA – CAC No. 35 of 2007 p.8
^[2] [2003] 1996 EWCA Crim 996, para 15(a)

^[3] (Unreported {2005} S HC 69)
^[4] (205) 54
^[5] Thid
^[6] (1984) 79 Cr App R 277
^[7] (2006) SBHC 15; HCSE of 2005.
^[8] Ibid