R v Tapoika [2020] SBHC 11; HCSI-CRAC 693 of 2019 (10 February 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tapoika
Citation:
Date of decision:	10 February 2020
Parties:	Regina v Mick Pongi Tapoika
Date of hearing:	4 February 2020
Court file number(s):	693 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird PJ
On appeal from:	Magistrate Court
Order:	1. The appeal is allowed. 2. The disqualification of the Appellant’s driver’s license dated 24th October 2019 is hereby set aside. 3. The Appellant’s driver’s license is to be returned to him. 4. The endorsement on the Appellant’s driver’s license is to be deleted forthwith.
Representation:	Mrs. M Suifa’asia for the Crown Mr. G Gray for the Appellant
Catchwords:
Words and phrases:
Legislation cited:	Criminal Procedure Code, s35, Penal Code, s35 Traffic Act,s53 (b) [cap 131], s29(2)
Cases cited:	Saukoroa v R [1983] SILR 275, Berekama v DPP [1985] SILR 272

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Appeal Case No. 693 of 2019

REGINA

V

MICK PONGI TAPOIKA

Date of Hearing: 4 February 2020
Date of Decision: 10 February 2020

Mrs M Suifa’asia for the Crown
Mr. G gray for the Appellant

RULING

Bird PJ:

1. This is an appeal by the Appellant against his sentence which was imposed by the Magistrate Court on 24^th October 2019 following a guilty plea.
2. The facts of the case were as follows; that the Appellant was a police officer in the rank of a sergeant. On 30^th June 2019 the Appellant drove a police vehicle to the Fishing Village Market and parked in a no parking place. There were police signs in the area indicating no parking.
3. There was a single aggravating factor which the court had stated in sentencing. That fact was the Appellant was a police officer.
4. The mitigating features which were advanced on behalf of the Appellant were that he had pleaded guilty which shows remorse. He had no previous conviction and that he was 53 years old. His personal circumstances were also taken into account.
5. According to the records, the Appellant had pleaded guilty to one count of failing to comply with traffic directions contrary to section 53 (b) of the Traffic Act (Cap 131) on 23^rd October 2019.
6. On 24^th October 2019, the Appellant was conditionally discharged in the court below pursuant to section 35 of the Penal Code and not section 35 of the Criminal Procedure Code as stated in paragraph 6 of the Crown’s written submission.
7. The conditions that were attached to his discharge were that the Appellant’s driving license was to be cancelled for a period of one year commencing 24^th October 2019. That the Appellant was not to drive any motor vehicle (both private and public) for a period of 1 year commencing 24^th October 2019. The Appellant’s license to be surrendered to the authorities within the police force by close of business on 24^th October 2019. The orders to expire on the 24^th October 2020.
8. The powers of this court in dealing with appeals from the lower courts is well settled in this jurisdiction.
9. The principle which had been laid down in this jurisdiction in the cases of Saukoroa v R [198] SILR 275 and Berekama v DPP [1985] SILR 272 are used as guidance in this ruling. The principle applied in those cases and I quote is “this court will not interfere with the sentence imposed by the trail judge in the exercise of his discretion unless it is shown to be manifestly excessive or manifestly inadequate either because the judge had acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient features of the evidence. The question, therefore is not whether this court would have imposed a different sentence to the one given, but rather whether there was an error in the exercise of the sentencing discretion in the court below.
10. In this case, the Appellant was conditionally discharged which indicates in my view that the court had much regard on the Appellant’s mitigating factors.
11. I also wish to highlight the provision of Section 35 of the Penal Code. The footnotes on the right states “Discharge of offenders without punishment.” Section 35 provides as follows:-
    • “Where, in any trial, the court thinks that the charge against the accused person is proved but is of opinion that having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge absolutely or conditionally.”
12. By virtue of section 29 of the Traffic Act (cap 131), disqualification of a person’s driver’s license is a form of punishment for offences listed in Part 1 and Part 11 of the Schedule to the Act.
13. The offence for which the Appellant is charged is created under section 53 (b) of the Traffic Act. That offence is also categorised under Part 11 of the Schedule to the Act. It is obvious from the reading of the Schedule that offences under Part 1 are very serious in nature and disqualification of a driver’s license therefore is obligatory for a term not less than twelve months.
14. The part 11 offences of the Schedule are less serious in nature and the court has a discretion to consider whether or not to use its powers under section 29 (2) of the Traffic Act to order disqualification of a driver’s license.
15. Section 29 (2) of the Traffic Act states as follows:-
    • “Where a person is convicted of an offence specified in Part 11 of the said schedule, the court may order him to be disqualified for such period as the court thinks fit.”
16. On the above instance, this court had also noted the content of paragraph 13 of the learned Magistrate’s sentence in which she had stated as follows; “I invoke my authority under section 35 and I refuse to enter conviction against this defendant.” That sentence in my view stipulates that the learned Magistrate had never entered a conviction against the Appellant on the 24^th October 2019.
17. Section 29 (2) of the Traffic Act only empowers the court to impose an order for disqualification of a driver’s license where a conviction is entered (my emphasis). In this case, the learned Magistrate had refused to enter a conviction. Therefore, the power of the court under Section 29 (2) of the Traffic Act, is not available to her at her disposal.
18. Instead of proceeding to convict the Appellant, the learned Magistrate had opted to discharge him under Section 35 of the Penal Code. It is my view that when a court of first instance uses this section, they are opting not to punish the offender.
19. In this case however, the court of first instance had already opted not to punish the offender pursuant to Section 35 of the Penal Code but had further decided to impose further punishment under Section 29 (2) of the Traffic Act. In my view that is a clear error of the application of the laws.
20. This court therefore is empowered to intervene on the basis that the lower court had erred in imposing a punishment against the Appellant without a conviction.
21. In light of the above discussion, the disqualification of the Appellant driver’s license in the court below dated 24^th October 2019 was made in error. The court below had erroneously applied the provision of Section 35 of the Penal Code and Section 29 (2) of the Traffic Act. The order for disqualification of the Appellant’s driver’s license is hereby set aside.
22. The Appellant’s appeal is hereby allowed.

Orders of the court

1. The appeal is allowed.
2. The disqualification of the Appellant’s driver’s license dated 24^th October 2019 is hereby set aside.
3. The Appellant’s driver’s license is to be returned to him.
4. The endorsement on the Appellant’s driver’s license is to be deleted forthwith.

THE COURT
Justice Maelyn Bird
Puisne Judge