Regina v Hunikira [2016] SBMC 13; Criminal Case 360 of 2015 (9 June 2016)

IN THE CENTRAL MAGISTRATE COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 360 of 2015

REGINA

v

DANIEL HUNIKIRA

Prosecution: Mr. J. Anisi of the Office of the Director of Public Prosecutions (ODPP)
Defence: Mr. G. Gray of Public Solicitors Office (PSO)
Hearing: November 9-13, 2015 and April 26, 2016
Judgement: May 5, 2016
Sentence submissions: June 7, 2016
Sentence: June 9, 2016

SENTENCE

1. You were convicted after trial of one count of driving or being in charge of vehicle when under the influence of drink or drugs contrary to section 43(1) of the Road Transport Act and one count of careless and inconsiderate driving contrary to section 40(1) of the same Road Transport Act.
   
2. For a first time offender, the maximum penalty for the first charge is a fine $10,000 or 12 months imprisonment. The maximum penalty for the second charge is a fine of $5,000 or 6 months imprisonment.^[1]
   
3. These two offences were committed at the same time. The facts established in the trial showed that on the 14^th of February 2015 between 5:00am - 6:00am, you drove a government vehicle registered as G-3634 when you were intoxicated and hence, you veered off the road and into the vegetation along the Alligator Creek main road near Henderson area in the Guadalcanal Province. The vehicle rolled over and travelled for 36 meters into the vegetation before it came to a complete stop. As a result, it sustained damages to its roof, front screens and front bumpers. It is now written off or in other words, no longer usable or driveable as a result of that accident.
   
4. Your lawyer has submitted the following personal and mitigating features on your behalf which I accordingly take them into account:
   
   • (i) You are a family man with 5 children and 16 grandchildren. Some of them currently attended schools in Honiara. Almost all of them resided with you at Henderson Police married quarter residence and heavily depended on you for their schools fees and survival. In my view, this shows that you have a huge family responsibility towards them and that aspect of your responsibility must not overlooked by this Court.
     
   • (ii) Prior to your conviction, you were working as a police officer for 35 years. Since 2004, you held various senior positions in your capacity as a police officer within the ranks of the RSIPF. Your previous position was the Provincial Police Commander for Guadalcanal Province. Because of your dedicated service and performance in your service, you received an award ‘MBE Medal’ in 2011. These aspectsof your role within the RSIPF and the awardyou received speak highly of your reputation and reflect you held in high regard whilst working for the RSIPF.
     
   • (iii) Despite you have realized your action was inappropriate, you have taken steps to see it is not repeated.
     
   • (iv) You now a retired person, no longer works for the government and ceased receiving any salary. At present, you ran a taxi service purposely to raise money to support your family members. I am urged by your lawyer to take into account your financial means of income in determining the appropriate sentence to be imposed on you.
     
   • (v) You are a first time offender with no prior conviction. This shows you are a law abiding person prior to your conviction.
     
5. From the facts unfolded in the trial, I have noted that there are obvious aggravating features for your case. These are:
   
   • (i) You were a police officer when you committed the offence. Being a police officer serving in the RSIPF, you were entrusted with self-discipline and to uphold the law at all times whether on or off duty. The fact that you are a police officer when you committed these offences amounts to an aggravating feature.^[2]
     
   • (ii) That vehicle was allocated to you so that you would take care of it for official use. You were entrusted with care to use that vehicle in those early hours of that morning. Instead, you used it whilst being drunk with alcohol and ended up in an accident caused mainly by your carelessness. You act in this instance showed grossabuse of that trust and responsibility bestowed on you to look after that vehicle.
     
   • (iii) You consumed alcohol and were intoxicated when you drove the vehicle that ended up in the accident. Being the Provincial Police Commander for Guadalcanal Province, you ought to know that it is not proper and safe to drive when you consumed alcohol. You exposed yourself to criminal act and also your personal safety. You knew that very wellyet you ignored it and drove that vehicle that early morning, resulting in the accident.
     
   • (iv) The vehicle was badly damaged and written off as a result of the accident. It was now idled and no longer usable at present. Hence, you caused loss to the government of Solomon Islands by depriving the RSIPF from the use of that vehicle for logistical support and other important services.
     
   • (v) The vehicle you drove and ended up in the accident is a vehicle owned by the Solomon Islands Government as indicated by its registration number (G- Plate vehicle). Clearly it is an asset that was purchased purposely to provide the logistical service for the RSIPF. Your act of driving it on that early morning whilst drinking alcohol and ended up in the accident is an act of gross misusing of a government vehicle and no doubt contrary to its purpose why it was allocated to RSIPF.
     
6. I have accordingly taken those aggravating features into account in considering the appropriate sentence to be imposed on you.
   
7. The offences that you convicted of are serious traffic offences. The courts in our jurisdiction havemade it clear the need to discourage these offences given the need to protect the public and property from vehicle accidents caused by careless drivers.
   
8. In Cheffers v R^[3] Ward CJ, stated:
   

“Driving whilst under the influence of alcohol is extremely serious offence. Anyone who drives in such a state has deliberately done a course of action that puts his own and far more seriously, other people’s lives at risk. However carefully he may attempt to drive, his reactions if confronted with an emergency will not be effective as when he has taken no alcohol.”^[4]

9. In relation to careless driving, I have made the same remarks in R v John Rae^[5] and R Walter Kola^[6] which I think it is also important to reiterate it here:
   

“Careless driving is a serious traffic offence because of the consequence that can flow from an accident. That is why its maximum penalty was increased in 2009. This increase indicated the definite need to discourage careless driving taking into account the number of vehicle users in our country at present. I have observed this offence is prevalent in Honiara and Guadalcanal taking into account the increase number of vehicles in our town. The endless streams of cases flooding this Court might mean that the Court is too lenient with its punishment or lack of community awareness for the need to drive carefully or might be because of public ignorance of the ongoing awareness by enforcement authorities and the deterrent messages sent by the Court in past occasions. The failure must fall in one of those avenues.”^[7]

10. In your case, your manner of driving at that time was not only a bad piece of driving but also dangerous toother road users. This was evidenced by the accident had occurred at a site of the road which only drivers who are not careful and so affected by alcohol would end up in. The vehicle has to roll over and travelled for 36 meters into the vegetation before it stopped resulting in severe damages to its bodies.
    
11. I have considered your level of culpability and reached the view that it falls in the upper level category of the seriousness of these offences.
    
12. In deciding the appropriate sentence, I am guided by the cardinal principal that each case has to be decided by its own set of facts.
    
13. For sentences for drunk driving offences, the most useful guideline for consideration of sentences was provided for in R v Sulega^[8].That was a case involving an accused who pleaded guilty to the charge of driving whilst unfit to drive through drink.In that case, Palmer J (now CJ),issued a guideline setting out the minim fees to be imposed for guilty plea matters:
    

“As a guideline the minimum fines to be imposed on drunk driving offences should not be less than $200-00. Only for very good reasons should they go below $200-00 and must be stated in the sentence. For second offenders, I would expect a custodial sentence to be imposed unless there are exceptional reasons for not doing so.”^[9]

14. His Lordship then continued emphasising the need to impose adequate sentence to offenders by stating the following remarks:
    

“The courts must therefore continue to maintain that same vigilance when dealing with such offenders. If a person's means are to be taken into account when considering the level of fines, then perhaps more time can be given, say a fine of $300-00 payable over a period of 28 days; the first half of $150-00 to be paid in 14 days and the balance the remaining 14 days.”^[10]

15. The above guideline was issued when the fine for this offence was $400 for a first time offender. Now it was increased to fine of $10,000 in the legislation calledthe Penalties Miscellaneous Amendments Act 2009.
    
16. This is asignificant increase of 2 ½ times of the former maximum penalty. The corresponding guideline to reflect the increase of the penalty would be a minimum fine of $5,000. This is to reflect the seriousness of this offence and how our legislators viewed it when passing this legislation. To put it in a more practical way, the indication of this increase in penalty simply indicated a stern warning to all road users especially drivers of motor vehicles to avoid driving when drunk with alcohol.
    
17. The same principle applies to careless and inconsiderate driving offences.
    
18. In relation to comparative cases in our jurisdiction, I am unable to find any case law for any sentence imposed by the court after trial for the offence of driving or being in charge when the under the influence of drink or drugs. All decided cases only relates to guilty plea matters which is different to this present case. The sentences imposed for guilty plea matters ranged from $100-$200 when the penalty was yet to be increased. Since this matter is a contested matter, the expected sentence to be imposed by the court for this offence must exceed this range. This will then depend on the aggravating features of the offending.
    
19. In linewith the authoritative guideline set out in Sulega’s case and the need for consistency with the recent increase of the penalty in the Penalties Miscellaneous Act 2009as the status quo of our current jurisprudence for traffic offences, the minimum fine for this offence for trial matters should be $5,000. This figure will then depend on any aggravating features or any special circumstances whether to increase or decrease it.
    
20. In your case, there are a number of aggravating features combined with your level of culpability I have already mentioned. After I carefully considered your mitigating and personal factors and balancing them with the aggravating features, the appropriate penalty for the first charge^[11] you convicted is a fine of $6,000. That fine has to be paid before or by 8^th of August 2016. I reached this penalty after I have carefully considered and given due weight to your mitigating features especially your current means of income against the objective seriousness of this offence.
    
21. This brings me to the issue of whether or not to disqualify you from driving as mandatorily required under section 29 (1) of the Road Transport Act.
    
22. Section 29 (1) states:
    

“Where a person is convicted of an offence specified in Part I of the Schedule the court shall order him to be disqualified for such period not less than twelve months as the court thinks fit unless the court for special reasons thinks fit to order him to be disqualified for a shorter period or not to order him to be disqualified.”

23. This section makes it mandatory to disqualify an offender upon conviction for any of the following offences:
    
    • (i) Driving while disqualified from driving,^[12]
    • (ii) Manslaughter by the driver of a motor vehicle,^[13]
    • (iii) Causing death by reckless and dangerous driving^[14], and
    • (iv) Driving or being in charge when the under the influence of drink or drugs.^[15]
      
24. The offence you were convicted of is one of the offences mandatorily required for disqualification for a period of 12 months unless for special reasons the court thinks fit would warrant a shorter term or order no disqualification.
    
25. I have been urged by your counsel in his written submission to consider that you have already retired from the RSIPF and now ceased receiving salary from the government. Further, at present, your means of income to support your family is from running a taxi. You also responsible to pay their school fees here in Honiara. There is no specific mention of your other means of income except for that taxi service.
    
26. Since you solely dependedon driving taxi to raise money for your survival and supporting of your family members, in my view, your means of earning has to be consideredin light of whether or not to disqualify you for the 12 months minimum period or a shorter period or, not at all as required under section 29 of the Road Transport Act.
    
27. Upon considering your current means of income, it is my considered view that your case falls under the special reasons category which begs the court’s leniency to order no disqualification for driving despite its mandatory requirement. I reached this conclusion because if the court disqualifies you from driving (as your only means of income) even for a shorter period, this will not do justice for your survival, and in turn, will put your live including your family members at stake or in a very difficult situation to survive.
    
28. This leads me to the sentence for careless and inconsiderate driving.
    
29. The penalties imposed by this court ranged from $1,200 to $2,200 for contested matters.
    
30. In R v Mark Dennis,^[16] the accused was convicted after trial for one count of careless driving^[17]. In that case, he was hit by another oncoming vehicle which was travelled westerly bound direction along the main road at Kukum Hot Bread area. He miscalculated the oncoming vehicle and as a result, his vehicle was hit by that vehicle in the middle of the main road. His conviction was based on his failure to adhere to the right of way under the Traffic Regulation. His vehicle sustained more damage than the other vehicle. He was sentenced to a fine of $1,300 since I described him as a victim of his own mistake and his culpability is at the lower range of the seriousness of this offence.
    
31. In R v John Rae,^[18] the accused, a Correctional Service officer, was convicted after trial for one count of careless driving^[19]. In that case, the accused consumed alcohol and used a Solomon Islands Government vehicle allocated to the Correctional Service. He ditched that vehicle in a drain at Naha 4 area, resulted in the vehicle sustained damages to its front bumpers. A fine of $2,200 was imposed on him.
    
32. In R v Walter Kola,^[20] the accused being the Deputy Commissioner of Police at the time of the offending, was convicted after trial for careless driving.^[21] The accused used a government vehicle in an early hour of the morning for his private trip to the main wharf. On his return to Rove, he felt sleepy so he veered off the main road and onto an island near the Central Police Station. He then collided with the side of an electric post light resulted in the vehicle sustained damages to its front as well as the right front tyre. I imposed a head penalty of a fine of $3000 but reduced it to $2,200 to reflect the delay it took to have his matter finalized in court.
    
33. In your case, your level of culpability is almost the same as in Rae’s case where the vehicle sustained substantial damage. Hence, for purpose of consistency and taking into account the mitigating features, aggravating features, need for deterrence and the delay it took to have this matter finalized in court, the appropriate penalty for your second charge is a fine of $2,200 to be paid before or by 8^th of August 2016.
    
34. Defendant has right to appeal this sentence within14 days as of this date to the High Court.
    

ORDERS OF THE COURT

(A) Impose a total fine of $8,200 for both offences to be paid before or by 8^th of August2016. In default, 1 year imprisonment.

(B) No order for disqualification of driving.

..................................................................
THE COURT

Augustine Aulanga - PM

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^[1]See schedule 8 of the Penalties Miscellaneous Amendments Act 2009
^[2]R v Matamu [2010] SBHC 33 at paragraph 31
^[3]Unrep. Criminal Case No.11 of 1989
^[4] At page 3
^[5] [2015] CMC-CRC No: 343 of 2015
^[6] CMC Criminal Case No. 354 of 2015
^[7] At paragraph 6 of Rae’s case and also paragraph 6 of Kola’s case
^[8] [1999] SBHC 42; HC-CRC 133 of 1999
^[9]At page 2 of his review decision
^[10]Ibid
^[11]Driving or being in charge of vehicle when under the influence of drink or drugs contrary to section 43(1) of the Road Transport Act
^[12] Section 35 (b) of the Road Transport Act (RTA)
^[13] Sec 199 of the Penal Code
^[14] Section 38 of the RTA
^[15]Section 43(1) of the RTA
^[16] CMC CRC No. 934 of 2014
^[17]Contrary to section 40(1) of the RTA
^[18] CMC CRC 343 of 2015
^[19]Contrary to section 40(1) of the RTA
^[20] CMC Criminal Case No. 354 of 2015
^[21]Contrary to section 40(1) of the RTA