R v Danny [2022] SBHC 27; HCSI-CRC 708 of 2021 (10 June 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Benson Danny
Citation:
Date of decision:	10 June 2022
Parties:	Regina v Benson Danny
Date of hearing:	26 May 2022
Court file number(s):	708 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant Mr Benson Danny is hereby convicted of 5 counts of manslaughter contrary to section 199 of the Penal Code (cap 26). 2. Count 1- The defendant is sentenced to 6 ½ years imprisonment 3. Count 2- the defendant is sentenced to 6 ½ years imprisonment 4. Count 3- the defendant is sentenced to 6 ½ years imprisonment 5. Count 4- the defendant is sentenced to 6 ½ years imprisonment 6. Count 5- the defendant is sentenced to 6 ½ years imprisonment 7. The sentences in orders 2 to 6 are to be served concurrently. 8. I direct that the time spent in pre-trial custody to be deducted from the total sentence. 9. Right of appeal
Representation:	Mr. Andrew E Kelesi & Nickson Tonowane for the Crown Mr. Henry Kausimae for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code S 199 [cap 26], S 214 [cap 26] Traffic Act [cap 131]
Cases cited:	R v Oli [2018] SBCA 3, R v Asuana [1990] SBHC 52, Regina v Maelisu’u [2013] SBHC 181

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 708 of 2021

REGINA

V

BENSON DANNY

Date of Hearing: 26 May 2022
Date of Decision: 10 June 2022

Mr. Andrew E Kelesi &Nickson Tonowane for the Crown
Mr. Henry Kausimae for the Defendant

SENTENCE

Bird PJ:

1. By information filed on the 8^th December 2021, the defendant Mr Benson Danny was indicted with 5 counts of manslaughter contrary to section 199 of the Penal Code (cap 26) The defendant had pleaded guilty to the charges on the 6^th April 2022 and he was convicted accordingly. He now appears before me for sentence.
2. You are charged with 5 counts of manslaughter and the maximum penalty prescribed under our laws for that offence is an imprisonment for life. It is that serious because it involves, the taking away of a man’s life through one’s negligence.
3. The facts of your case as were presented to this court are that you are from Obo’Obo Village, Central Guadalcanal, Guadalcanal Province. You were 19 years old at the time of the offence. The deceased persons were Nicholas Tavake, a 30 years old male from Temotu Province, Caspar Nadu a 16 years old male person from Temotu Province, Richard Kuluweo- a 26 years old male also from Temotu Province, Daniel Maeke- a 20 years old male from Guadalcanal Province and John Lavi- a 20 years old male person from Malaita Province.
4. On the 7^th July 2021 between 8pm to 9pm, you were said to be driving a white Toyota Land Cruiser registration number MC 1087. You were spotted by a Police Patrol Team when you took off from the northern road at KGVI crossroad. You overtook a vehicle in front and turned infornt of an incoming bus that was about to stop at the Uncle Alick shop bus stand. You were the driver of the land cruiser. At the material time, there was a traffic jam from Lee Kwok Kuen area to Lungga area. The police patrol gave signal for you to stop but instead you tried to escape by driving through the middle of the single lane road without indicating lights to other vehicles on the road. Your offsider told you to slow down and stop on the side of the road but you told him to shut up and wind the windows up. You were intoxicated at the material time and you accelerated your speed. The police patrol continued to give signal for you to stop but you drove on at very high speed. The police patrol followed you and you then escaped towards the Lungga community rough and bumpy road. At the Cross Road area, the police patrol could only see your rear tail light and you were about 60 meters ahead of them. From the Cross Road area, you further accelerated and increased the distance to about 90 meters. You then turned into the domestic airport terminal bus stop and continued to drive at very high speed towards the Tenaru bridge. Before entering the bridge, an oncoming vehicle had entered the bridge from the eastern end.
5. At that time, there was a fundraising held on the western end of the old Tenaru bridge and the place was crowded with people attending the event. In an attempt to avoid the police patrol, you switched off the vehicle’s head lights and veered the vehicle towards the old Tenaru bridge towards the crowd. In the process, the vehicle hit the deceased’s people namely Nicholas Tavake, Casper Nadu, Richard Kuluweo, Daniel Maeke and John Lavi. You were then identified on the crime scene and was taken by police for questioning. You were formally arrested on the 8^th July 2021. All of the deceased were identified and brought to the National Referral Hospital. They were pronounced dead upon arrival at the hospital. An external examination was conducted on all five deceased to confirm the extent of the various injuries sustained during the accident.
6. Having stated the facts in your case, I must take note of and discuss the aggravating features and balance them with the mitigating features therein in order for me to impose an appropriate sentence against you. It was submitted by the prosecution that there are a number of aggravating features in your case. Firstly is the seriousness of the offence charged. The maximum penalty of life imprisonment is indicative of the seriousness of the offence of manslaughter. It is also an aggravating feature that you were intoxicated at the time of offending. You were driving at very high speed and in doing so you have put to risk lives of many innocent people. It was obvious from the agreed facts that the manner you were driving was very dangerous to the public. You committed the offending at night time and the circumstances were even more dangerous when you switched your head light off and continued to drive on at very high speed. You absolutely have no regard for anyone else. It was a very unfortunate and sad occasion for the five victims and their respective family members. Five innocent people were killed in that single incident. Your degree of culpability is therefore very great. It is also noted that the distance you travelled recklessly and dangerously on the road was a lengthy one, starting at KGVI School area to the old Tenaru bridge. The manner you drove on that occasion, put people’s lives and other road users at real risk. The Court of Appeal in the case of Regina v Oli (2018) SBCA 3, SICOA-CRAC 32 of 2017 had re-emphasized the provision of section 214 of the Penal Code (cap 26) and I quote:
   • “It is the duty of all person who has in his charge or under this control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care and precaution in its use or management, the life, safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he shall be deemed to have caused any consequences which adversely affect the life or health of any person by reason of any omission to perform their duty”.
7. You are hereby reminded of your duty of care to members of the public when driving a motor vehicle on the road. It is within your control to use it, but bearing in mind at all times that you must use reasonable care and take reasonable precautions to avoid danger to other road users and members of the public. In breach of that duty of care, people’s lives are endangered and you shall be held responsible for such a breach.
8. Apart from the aggravating features as discussed, it is submitted on your behalf that you have pleaded guilty to the offending at first opportunity. I give you credit for your early guilty plea. Your guilty plea shows you are sorry for what you did and you have owned up to your offending and willing to face the consequences of your action. It also saves the court’s time and resources into conducting a trial into the matter.
9. The court has also noted your youthfulness. You were 19 years old at the time of offending and was a Form 4 student at St. John School in Honiara. You were unable to complete your education because of this offending. You were remanded in custody as a consequence of the offending. As a young offender, you have a good prospect of rehabilitation. I urge you to learn from your mistake and do not re-offend in future. You are only 20 years old now and you still have a long way to go in life. Make good use of your life and your time upon your release from incarceration and do not get involved in the abuse of alcoholic drinks. It is also noted that you are a first offender without any previous conviction.
10. It is further noted that reconciliation and payment of compensation was made by your family to the various families of the five deceased persons. I can see from the documents presented to this court that huge compensation payments were made on your behalf and peace had been restored amongst your family members and the five deceased’s family members. In the case of Regina v Asuana [1990] SBHC 52, HC-CRC 34 of 1990, His Lordship Ward CJ had stated that “any custom compensation must be considered by the court in assessing sentence as a mitigating factor but it is limited in its value. The court must avoid attaching such weight to it that it appears to be a means of subsequently buying yourself out of trouble”. In your case, huge amount of money was paid to the various families of the deceased and some weight will be placed upon the payments. The payment of compensation must not however be viewed as paying your way out from your criminal responsibility.
11. In this jurisdiction, there have been cases of motor vehicle manslaughter in which certain people were charged under the Penal Code (cap 26) rather than for the charge of dangerous driving causing death pursuant to the provision of the Traffic Act (cap 131). The maximum sentence for the offence of dangerous driving causing death under the Traffic Act is one of 5 years imprisonment. The maximum sentence for manslaughter is life imprisonment. You are charged under the Penal Code because the circumstances surrounding the commission of your offending are extremely serious.
12. In the case of Regina v Maelisu’u [2013] SBHC 181, HCSI-CRC 75 of 2010, the defendant was a taxi driver and was heavily intoxicated. He continued to consume alcohol whilst driving. He drove off the road and hit two young men who were sitting on the road side. Both were injured and one of them died and the driver was charged with the offence of manslaughter. I have also perused and took into account the courts’ views in the various other cases discussed by both the prosecution and the defence in their submissions. From those cases, I can gather that the circumstances of the offending in your case are more serious in nature than the other cases. In your case, you were heavily intoxicated. The manner in which you were driving was extremely dangerous. You have no regard whatsoever for other road users and the public at large. You disregarded advise by your passenger to slow down. You were driving like a maniac and at night time and with your head lights off. As a result of your carelessness and negligence, you killed five people on the very same night. If you had your head lights on, you would have been able to see from a safe distance that people were congregated in the area for a fundraising. The accident could have been avoided and loss of lives could even have been minimal if you driven the vehicle with due care and attention. These circumstances in my view make your offending more serious than any other motor vehicle manslaughter cases previously dealt with by this court.
13. Having considered the facts of your case and taking note of the courts’ respective views on sentencing for motor vehicle manslaughter, I would put your starting point at 7 years imprisonment. For the aggravating features in your case, I would increase your sentence by 3 years. For the mitigating features pleaded on your behalf and especially your early guilty plea, your previous good character and your other personal circumstances, I would reduce the sentence by 18 months. For your youthfulness, I will further reduce your sentence by 2 years. Total sentence to serve is one of 6 ½ years imprisonment on each of the charges of manslaughter. As the offences in counts 1 to 5 were done in a single transaction, I direct that the sentences are to be served concurrently.

Orders of the court

1. The defendant Mr Benson Danny is hereby convicted of 5 counts of manslaughter contrary to section 199 of the Penal Code (cap 26).
2. Count 1- The defendant is sentenced to 6 ½ years imprisonment
3. Count 2- the defendant is sentenced to 6 ½ years imprisonment
4. Count 3- the defendant is sentenced to 6 ½ years imprisonment
5. Count 4- the defendant is sentenced to 6 ½ years imprisonment
6. Count 5- the defendant is sentenced to 6 ½ years imprisonment
7. The sentences in orders 2 to 6 are to be served concurrently.
8. I direct that the time spent in pre-trial custody to be deducted from the total sentence.
9. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge