Regina v Rifasia [2016] SBMC 20; Criminal Case 55 of 2016 (2 August 2016)

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

Criminal Case No: 55 OF 2016

Regina
-V-
Lionel Rifasia

Prosecution: Mr. I. Kekou of the Director of Public Prosecutions

Defence: Ms. Sarah Karani of Public Solicitors Office
Plea Date: July 21, 2016
Sentencing Submissions: July 28, 2016
Sentence: August 2, 2016

Sentence

1. This matter is for me to decide the sentence for the convicted offender, Lionel Rifasia, who pleaded guilty to the charge of causing death by reckless or dangerous driving, contrary to section 38 of the Road Transport Act. Currently, he is still on bail after I exercised my unfettered discretion to allow him on bail after his conviction. His cooperative behaviour and faithfulness in his attendance to court on almost all occasions before and after his conviction deserves he should spend few more times with his family before his fate is decided.

Events Leading to the Fatal Collision

2. The event of this fatal motor vehicle hit and run accident is unexpected and unfortunate. Unexpected in the sense that the offender did not expect this accident to occur while he journeyed back to Honiara from Aruligo with his family. Likewise, it was unfortunate since a human life was prematurely lost.

3. It was on Sunday 1^st of November 2015 at about 4:00pm, Lionel Rifasia was driving his family in a short boot car registered as MA3099 from Honiara to Selwyn College. He was intending to drop off his daughter who was a student at that school. Inside the vehicle were his three children and wife.

4. It happened when they reached Aruligo area, one of its tyres got punched and so Lionel called his brother in Honiara by mobile phone and asked him to bring him any good tyre as a replacement. As a result, his brother sent George Kuti in a car with a tyre.

5. During the course of waiting for Kuti, a bus travelling in the westerly direction stopped at the side of the road and a school teacher at Selwyn College came out and approached Lionel and offered to take his daughter to the school. Lionel agreed to the offer and his daughter thereafter was transported in that bus. At that stage, it was already 5:25pm in the evening.

6. After the bus had left and whilst they were still waiting for Kuti at the road side, the deceased who was drunk, was observed trying to stop three vehicles but unable to do so since they didn’t stop for him. After the failed attempts, he then approached Lionel and his family and without any reason, he started to act disorderly and harassed them. He first pushed Lionel’s wife and moved to his daughter as the next target. Being conscious of his aggressiveness, she managed to escape from him. The deceased then advanced to Lionel and asked him $150. When Lionel refused to give him the money, he instead kicked his car. Due to fear for the safety of his vehicle and his family, Lionel quickly advised his family to get in the car an escape out of the scene which they did. He drove them away further west from the deceased despite having the punctured tyre.

7. About 5:30pm, Kuti arrived with the tyre and replaced the punctured one. Kuti informed Lionel that he came across a person who none other but the deceased, who tried to stop him along the road. He said that he was scared of his behaviour. Lionel then advised Kuti to take the lead while he would drive closely behind him on their way back to town and not to stop if the deceased stops him.

8. They drove back heading towards Honiara in the manner instructed by Lionel until they reached Aruligo market area when Kuti saw the deceased who was standing in his driveway on the main road. The deceased was waving his hands indicating for Kuti to stop but Kuti kept on driving forward towards him. As Kuti came very close to him, he moved to the left side of the vehicle and kicked the front left of his car. As a result, his leg landed on the left rear mirror and it came off.

The Fatal Collision

9. However, during the course of applying that kick against the moving vehicle caused him to fall and lie down across the driveway. At that stage, Kuti kept on driving forward past him.

10. Lionel who was driving at a close distance behind Kuti and at a fairly fast speed ran over the deceased who was already in a lying position across his driveway.

11. When he realised he ran over a person, he stopped his vehicle about 10 meters away from the deceased but then continued shortly afterwards back to Honiara.

12. As a result of the impact, the deceased was unconscious and was taken to the National Referral Hospital. He was admitted for severe head injury attributed to the impact caused by Lionel’s vehicle and perished three days after the fatal accident.

13. Following his death, a customary reconciliation was organised and conducted at Henderson Police Station between the deceased and Lionel’s family members. The sum of $10,000.00 cash and the vehicle that involved in the accident was given to the deceased’s father as compensation. I am told that following this reconciliation, both families were already in good relationship.

Remarks on death resulted from one’s disorderly behaviour and the need to avoid such behaviours

14. This case, like other past cases, demonstrated a tragedy when a human life was unfortunately lost as a result of confronting a motor vehicle. It is also described as death which happened due to uncontrolled, outrageous and disorderly behaviour of a male person who was under the influence of alcohol and acted like ironman harassing innocent persons along a public road to the extent of undermining the movement of vehicles that somehow costs his own life. Sadly, but that is the reality of what seemed to be the trend of behaviours of our male persons especially in neighbourhoods in and out of Honiara ,or even in other provinces. This is a very concerning, frowning and worrying pattern of no care attitude which if left uncontrolled, unaddressed and undeterred may breed a culture of antisocial behaviours and lawlessness amongst our male persons in our communities and the country as a whole. This is normally referred to as the so-called ‘attitude problem’. In my view, this issue of antisocial behaviour and lawlessness will continue to drag us backward far from where we were known to before as a country of Happy Isles and even make us struggled to compete with our younger and small pacific countries in terms of law and order. This is a duty call not only for the courts to address but requires collective and concerted effort from all stakeholders and every single person of this country to proactively address it so that our safety and freedom of movement are not thwarted or suppressed by fear of criminals and thugs.

Personal and Mitigating Factors on behalf of the Offender

15. It is well settled that the offender’s plea of guilty has largely avoided the usual difficulty faced by the prosecution and the court in terms of saving costs and resources for trial. It does also show his agreement and willingness to face whatever form of penalty he will receive at the end of the day. I am urged in a more compelling manner to consider and take into account these personal and mitigating factors on his behalf:

15.1 He has six children to look after. Two of them are adopted ones while the rest are granddaughters. Three of his children are attending secondary and primary education at present. One is in Form 5 at Selwyn College, one in Form 3 at Lunga Community High School and the other is at Gwounasu’u in North Malaita. I am told that some of his children who already married also depended on him for financial support. There is no doubt from these information that the offender has a huge responsibility not only to the survival of his family but for their future education.

15.2 His wife does not have a job and depends on his income from his casual jobs and also, from their small canteen at Burnscreek. To help ease the cost of living in town, they also involved in subsistence gardening for their survival.

15.3 The offender has no previous conviction and genuinely admitted his commission of the crime by pleading guilty. His unequivocal guilty plea saves so much of the court’s time and resources. This is a bold step taken only by suspects who are honest and do not want to run rings around the authority for crimes that they clearly undeniable but for some tactical reasons they continue to deny.

15.4 The offender is very cooperative with the police and faithfully attended his case whilst on bail. This shows he has taken his case seriously and was keen to have his matter finalised despite being charged with a serious offence.

15.5 The offender is an important community member and a team leader in community policing against the sale of illegal alcohol, violence, and other crimes and delinquencies at the notorious Burnscreek area. Besides, he was the person who assisted in the amicable settlement of the demand against Mercy Primary School in Burnscreek. His valuable assistance and contribution in that regard was confirmed by a letter written by Pastor Nemuel Inomae who spoke highly of him and regarded him as “a trusted leader.”^[1] In his letter, he pleaded to the court to impose any sentence less than 2 years since his community depends very much on him as a peace maker.

15.6 The offender has entered into a customary reconciliation with the deceased’s family at Henderson Police Station on the 22^nd of March 2016. During that said reconciliation, the sum of $10,000 cash and the vehicle involved in the accident was given to the father of the deceased. Following that reconciliation, their family relationship with the deceased’s family is now in good terms. It is suffice to say that I am satisfied that the successful conducting of this customary reconciliation shows that it was a genuine, contrite and one that reflects true forgiveness and remorse for what the defendant had done. It now normalised and put to rest any animosity (if there is any) between these two families.

16. For purposes of my sentence, I had taken all his personal and mitigating features into account.

17. In an attempt to gain the court’s understanding of the accident, his lawyer further submitted that he didn’t see the deceased when he ran over him because he was obstructed by Kuti’s vehicle that travelled in front. Furthermore, he was in a state of hurry to take his family out from that place since they were earlier on harassed by the deceased. This line of submission was not agreed on by the prosecution who maintained the offender had deliberately run over the deceased who was already lying on the driveway.

18. I can see why there is such disagreement between counsels. This may be from the interpretation of the evidence that was distilled in the agreed facts and the other, from the instruction obtained from the participant of the offending. Paragraph 11 of the agreed summary of facts suggested the offender ran over the deceased despite the deceased was already lying on the driveway. There was no mention that the offender saw him prior to the impact. Hence, in light of this uncertainty, the absence of it must tilt in favour of the defendant and capable of reaching a conclusion that the offender did not see the deceased when he ran over him.

19. This lack of specificity or proper explanations when producing summary of facts needs to be avoided in future cases so that the court is not left to speculate on how the accident occurred. However, I take cognisance that there is no dispute that it was the offender who caused the death of the deceased. Despite the many explanations from the offender to minimise his culpability, that cannot erase the fact that through his driving a human life was lost. Matters as to whether or not he saw him only goes to show his manner of driving and whether he was reckless or dangerous in his driving at the material time.

Aggravating features

20. In terms of the aggravating features, the prosecution urged me to consider the offender was driving at a high speed when he ran over the deceased who was already lying on the road in the driveway. I agree that this was what occurred at the time of the accident save to say that he didn’t do it in a deliberate and intentional manner as seemed to be pressed on by the prosecution. His act can be described as wanting to escape of out the scene due to the state of fear that he and his family was subdued to due to the harassment by the deceased earlier on that day. Hence, he didn’t pay concentration with his driving and as a result, he ran over the deceased. Despite that, it can be concluded that his manner of driving has shown absolutely no thought for the safety of other road users as exemplified in this case.

21. Whilst I do not intend to minimise his culpability, the gravamen of this offence is that a human life was premature lost. No amount of compensation or remorse can ever return him to his family and loved ones. Not only that, but the impact that it brought upon his immediate family members as a result of his death is one that they find it hard to come to terms with. These factors must not be ignored by the court and therefore, the court must ensure those whose actions have brought pain and suffering on the deceased’s family in such cases like this must be sufficiently punished.

Comparative Sentences

22. A number of cases had been put before me by counsels simply to confirm the range of sentence handed down by the court for this offence. However, it is well understood that each case has to be decided on its own unique set of facts and circumstances, and cannot be transposed to another case.

23. In Regina v Kaukui,^[2] the Court of Appeal set the range of the sentence for causing death by dangerous driving between 3 – 4 years imprisonment. This excludes any mitigating features on behalf of the offender.^[3]

24. Premised on this authoritative guideline which is now our precedent, my duty is to implement that in the passing of the sentence taking into account the facts and circumstance of a case.

25. In the case of Mesepitu v Regina,^[4] the appellant was sentenced to 2 ½ years imprisonment for dangerous driving causing death. The appellant had been drinking and had a number of people in the back of the vehicle. At about 2.00am, he drove from the field where they were drinking, at high speed and lost control of the car. The car swayed side to side and 2 men and 4 girls were thrown from the back of the vehicle. All were injured with one dying.

26. In the case of Regina v Kaukui,^[5] the deceased and another person were returning home at about 9.30am after attending church. They were walking along the footpath at Mendana Avenue when they were struck by a vehicle driven by the respondent. The deceased was struck from behind, thrown into the air and landed on the vehicle. She was carried on the vehicle for some time before she was thrown alongside a tree at the western end of NPF Plaza. The person walking with the deceased jumped to her left when the vehicle approached and was thrown into a flower bed. The vehicle continued along the footpath until it returned to the road and stopped close to the National Museum. At the scene, the respondent was observed to have indicia of intoxication and appeared very tired.

27. The respondent was sentenced to 18 months imprisonment suspended for 2 years for the offence of dangerous driving causing death. On appeal against the leniency of the sentence, the Court of Appeal quashed the suspended sentence and substituted it with 3 years custodial sentence. The Kaukui case is far more serious and one that can be placed at the top end of the seriousness of any offence under section 38 of the Road Transport Act.

28. In Regina v Matamu^[6], the accused who was a RAMSI officer was drunk and driving at an excessive speed on the wrong side of the road and hit the deceased at Tasahe Hill. He pleaded guilty to the charge of causing death by reckless or dangerous driving and was sentenced to 3 ½ years.

29. For all the cases that I referred to, the common theme that stands out is the need for deterrence when it comes to sentencing an offender who causes the death of another as a result of motor vehicle accident. This is important for cases of reckless or dangerous driving because it is directed to all people who drive motor vehicles as contrasted with other offences where deterrence is in effect only directed to a minority of likeminded persons who might contemplate committing the particular offence.

30. In the present case, the facts of it were less serious compared to the other cases that were referred to earlier. By that I mean, no alcohol was involved and the manner of his driving during the course of the journey prior to the accident was simply normal and not that dangerous, or excessively speed, or in a zigzag manner compared to the other cases. His only act that resulted in the death of the deceased was his inability to avoid the deceased who was falling at the left side of Kuti’s vehicle and then on the road when the offender unfortunately ran over him that evening. His reason to drive at a fairly fast manner at the time of the impact was due to his anxiousness to get his family out of that location since they were harassed by the deceased earlier on that day.

31. Therefore, given his culpability which in my view should be at the lower range of the offending, to impose a sterner penalty on him for an act which he didn’t deliberately commit would be hash and unfair for him.

32. With all the views and reasons that I have encompassed in this sentencing remarks, the appropriate sentence in my view for the present offender is 2 years imprisonment.

33. Either party has the right to appeal this sentence within 14 days as of today.

ORDERS OF THE COURT

(A) Impose 2 years imprisonment.

(B) Any period spend in custody is to be deducted from this sentence.

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

Augustine Aulanga – Principal Magistrate

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^[1] Line 17 of Nemuel Inomae’s handwritten letter dated 28/7/2016
^[2] [2010] SBCA 2; CA-CRAC 11 of 2009
^[3] At page 3 of the judgment
^[4] [2006] SBHC 15
^[5] Refer to footnote 2
^[6] [2010] SBHC 33