R v Kinikelema [2020] SBHC 12; HCSI-CRAC 709 of 2019 (6 March 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kinikelema
Citation:
Date of decision:	6 March 2020
Parties:
	Regina v Charles Kinikelema
Date of hearing:
Court file number(s):	709 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird PJ
On appeal from:	Magistrates Court
Order:	1. Application for leave to appeal is dismissed 2. The pre-filed petition of appeal against sentence filed on 14th November 2019 was made in error and is not effective.
Representation:	Mrs. M Suifa’asia for the Prosecution Mr. B Ifuto’o for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Road Transport Act [Cap 131], Criminal Procedure Code, s285 (1) (2)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Appeal Case No. 709 of 2019

REGINA

V

CHARLES KINIKELEMA
Accused

Date of Hearing: 18 February 2020
Date of Decision: 6 March 2020

Mrs. M Suifa’asia for the Prosecution
Mr. B Ifuto’o for the Accused

SENTENCE

Bird PJ:

1. This is an application for leave to appeal against sentence by the Appellant filed on 14^th November 2019.
2. The Appellant was charged with one count of careless and inconsiderate driving contrary to Section 40 (1) of the Road Transport Act Cap 131.
3. On 29^th October 2019, following the Appellant’s guilty plea to the offence for which he was charged with was fined $1,500.00. His driving license was also suspended for a period of six months.
4. The Appellant was not represented by counsel on 29^th October 2019.
5. An application to appeal out of time was filed on 14^th November 2019. The application was filed with a Certificate of Urgency with a Petition to appeal.
6. When the matter was initially mentioned in court on 28^th January 2020, the court had raised procedural matters in relation to the Applicant’s application. To assist the court, the Appellant was required to file proper application pursuant to Section 285 of the Criminal Procedure Code.
7. That direction had led to the filing of an amended application by the Applicant and an Affidavit of Charles Kinikelema the Applicant.
8. The proviso to Section 285 (1) of the Criminal Procedure Code provides that the Magistrates Court or the High Court may at any time, for good cause, enlarge the period of limitation prescribed by this section.
9. Good cause is provided for under Section 285 (2) of the Criminal Procedure Code. Good cause under that subsection shall be deemed to include:-
   • (i) a case where the advocate engaged by the Applicant was not present at the hearing before the Magistrates Court and for that reason requires further time for the preparation of the petition.
   • (ii) any case in which a question of law of unusual difficulty is involved
   • (iii) a case in which the sanction of the Director of Public Prosecution is required by virtue of Section 283.
10. The question for this court to decide on therefore is whether the Applicant had shown good cause to seek leave of this court to file an appeal against sentence.
11. The Applicant had submitted that the Applicant was unrepresented by counsel in the court below. It was also submitted that the intended appeal raises questions of law of unusual difficulty.
12. This court can accept that the Applicant was unrepresented by counsel in the court below as a fact. Nonetheless, the requirement of Section 285 (2) does not stop there.
13. The Applicant was convicted for the offence of careless and inconsiderate driving by the court below on 29^th October 2019. He was fined by the said court in the sum of $1,500.00. In addition to that fine his driving license was suspended for a period of six months.
14. The question that needs to be asked is whether the suspension of the Applicant’s driving license raises a question of law of unusual difficulty.
15. I am of the view that the question does not raise a question of law of unusual difficulty. It is my view that it merely raises a question of sentencing policy.
16. The other issue that I wish to bring to the attention of both counsels in this case is that the draft petition of appeal should have been attached as exhibit to the Applicant’s affidavit as part of his evidence for the application for leave to appeal. In this application, a draft petition of appeal was not exhibited as part of his evidence on this application.
17. It must be noted by both counsels that a petition of appeal which is filed outside of the 14 days’ time limitation as required by Section 285 (1) of the Criminal Procedure Code, can only be lawfully filed after leave is granted by this court. This means that the pre- filing of the petition of appeal by the Applicant on 14^th November 2019 was made in error.
18. Taking into account the circumstances provided for under Section 285 (2) of the Criminal Procedure Code, I ‘am not satisfied that the proposed appeal raises a question of law of unusual difficulty. The Applicant’s application for leave to appeal is not made out and is therefore dismissed.

Orders of the Court

(i) Application for leave to appeal is dismissed.
(ii) The pre-filed petition of appeal against sentence filed on 14^th November 2019 was made in error and is not effective.

THE COURT
Justice Maelyn Bird
Puisne Judge