Regina v Sevoa [2016] SBMC 28; Criminal Case 504 of 2016 (19 October 2016)

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

Criminal Case No. 504 of 2016

Regina

-v-

Edwin Sevoa

Prosecution: I. Kekou of ODPP
Defence: D. Kwalai of PSO
Hearing: October 11, 2016
Oral Sentence: October 17, 2016
Written Sentence: October 19, 2016

Sentence

[1]. On 17^th of October 2016, I pronounced only the verbal Orders for the sentence I imposed on the accused. I indicated to prosecution and defence that I will publish the reasons for the sentence within 4 days as of the date of the verbal Orders. Hence, I now publish the reasons for imposing the sentence.

[2]. The accused, Edwin Sevoa, is a police officer by profession. He held a rank of a Staff Sergeant in the Royal Solomon Islands Police Force. On 21^st of September 2014, he drove a police vehicle - a single cabin hilux registered as G-3758, along an area known as stonefield at Kaibia Heights in Honiara. While he was driving along that road, he could not able to control the vehicle and hence, he veered off to the left side of the road for few meters before it stopped near an edge of a slope. He was drunk with alcohol while he drove that vehicle at the material time. He tried to reverse the vehicle but could not able to do since the vehicle was facing down towards the slope making it difficult to move the vehicle backwards.

[3]. As he tried to reverse the vehicle, another police officer called out to him to come out of the vehicle. He got out of the vehicle. He was observed to be very drunk. Police officers were requested to attend to him for assistance. Later on that same day, four police officers came in another police vehicle and attended to him. They managed to pull the vehicle back to the road.

[4]. The accused was advised to get in the other police vehicle while another police officer would drive his vehicle. He refused to follow that instruction but advised his colleague to get out of the vehicle so that he would drive it instead.

[5]. As he followed behind the other police vehicle, he bumped into its back bumper despite the front vehicle gave signal and stopped at the side of the road. This occurred when he released its 4 wheel drive which made the vehicle moved freely and hit the rear bumper of the other police vehicle. This caused a dent to its back bumper as a result of the impact.

[6]. He was charged with one count of driving when under the influence of drink or drugs contrary to section 43(1) of the Road Transport Act and one count of careless driving contrary to section 40(1) of the same Road Transport Act. On 11^th of October 2016, he entered guilty pleas to these two charges.

Aggravating factors

[7]. From these facts that I’ve narrated, it is clear that there were a number of aggravating factors as a result of his offending. These aggravating factors are:

6.1 First, he is a senior police officer when he committed these offences. By virtue of his profession and more importantly as stipulated under section 7 of the Police Act 2013, he is duty- bound to uphold the law at all times amongst his other statutory duties and functions. He supposed not to drive a vehicle when he was drunk or intoxicated. He failed or ignored to conform to that expectation and drove that police vehicle resulted in the commission of these traffic offences.

6.2 Second, when he drove the police vehicle while he was drunk with alcohol, he showed lack of care and trust bestowed on him to take care of the vehicle for its safety.

6.3 Thirdly, the fact that he veered off the road while he was drunk exposes him and other road users to imminent risk of motor vehicle accident. As gleaned from the facts, he ran off from the driveway and onto the roadside for few meters before it stopped. This is a culpable and bad piece of driving. Only drivers who are so affected by alcohol would drive in such a manner. It was fortunate that no one was hurt when he ran off the road at the time of the accident.

6.4 Fourth, he refused to follow the wise advice of his colleague not to drive that vehicle after it was towed to the road. He knew that he was drunk, yet he ignored that and insisted to drive which resulted in the back collision to the front vehicle.

6.5 Finally, as a result of his careless driving, he unnecessarily caused a dent to the back of the other police vehicle.

Mitigating factors

[8]. For purposes of his sentence, I take into account his guilty pleas which reflected his honesty and genuine admission of his involvement in committing the offences. It also shows his willingness to face whatever penalty to be imposed on him or any consequences that may arise from this case to his current job. In terms of administration, this also saves so much of prosecution, defence and the court’s time and resources. He is a first time offender with no previous conviction.

[9]. I am urged to consider that he is a family man with 4 children. Three of them are currently attending school. Hence, he is fully responsible to pay their school fees solely from his salary. Currently, he is reprimanded and still subjected to an internal disciplinary action within the RSIP. He pleaded for this Court to show leniency to him because of these double investigations and the likely consequences he may face in future. He is also an instructor of the Police Response Team. His lawyer urged the Court to consider his current contribution and input into that Team and hence, to replace him with another personal would be quite difficult at this stage. He has leant from these incidences and has taken steps not to repeat them in future. In his final plea, he asked the Court to consider that he didn’t cause any damage to any property from these incidences except for the small dent he caused to the back of the other police vehicle.

[10]. For purposes of his sentence, I take into account and give due weight and consideration to all his personal and mitigating factors ably submitted on his behalf by his lawyer.

[11]. These two incidences are unfortunate. They demonstrate how the accused (being a police officer and a responsible family man) should have thought about these likely consequences before driving the vehicle when he was drunk with alcohol. He simply just ignorant of these commons sense thoughts but decided to take the risks of driving the vehicle knowing that it is improper to do so. So to come now and beg for the Court’s leniency whilst the decision not to commit these offences at the first place could have been easily made is simply not acceptable, plain and simple.

Sentencing principles

[12]. In terms of the sentence for the charge of driving when under the influence of drink or drug, the case of R v Sulega^[1] and R v Hunikira^[2] provide a good guideline for the starting point for the Court to follow for guilty plea matters.

[13]. In Sulega’s case, the defendant pleaded guilty to one count of driving when unfit to drive through drink or drug. Palmer J (now CJ), when issued a guideline setting out the minim fees to be imposed for guilty plea matters echoed:

“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.”^[3]

[14]. When explaining the mode of payment and the need to impose adequate penalties to reflect the need for deterrence, his Lordship continued:

“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.”^[4]

[15]. To reflect the changes to the increase of the sentence under the Penalties Miscellaneous Amendments Act 2009 for this offence, I made the following remarks in R v Hunikira^[5]:

“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 called the Penalties Miscellaneous Amendments Act 2009.

This is a significant 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.”^[6]

[16]. The penalties imposed for guilty plea matters for the offence of driving when under the influence of drink or drug ranged from $3,000 to $4,000. For penalties for guilty plea for careless driving offence, the ranged is from $1,000 to $1,200. This is to reflect the recent increase of the penalties and the need for deterrence in light of the prevalence of these offences in Honiara and the country as a whole.

[17]. In R v Charles Rubaha^[7], the accused pleaded guilty to one count of driving when under the influence of drink or drug and careless driving^[8]. In that case, the accused was drunk with hot stuff and was travelling at a high speed along the easterly direction towards the new Mataniko Bridge. He collided at the back of another front vehicle. I imposed a fine of $3,000 for the offence of driving when under the influence of drink or drug and $1,200 for careless driving. These sentences were imposed in light of his mitigating and personal factors which outweighed the aggravating factors.

[18]. In R v George Keni^[9], the accused pleaded guilty to driving when under the influence of drink or drug, contrary to section 43 (1) of the Road Transport Act and careless driving, contrary to section 40 (1) of the Road Transport Act. In that case, the accused was drunk with alcohol while driving his vehicle after attending to a bride price payment celebration. In front of Punjas building at Ranadi, as he was driving towards town, he veered off the main road and hit a container stationed near the roadside. His two children and his wife who were inside his vehicle sustained minor injuries as a result of the impact. He was sentenced to a fine of $3,000 for the charge of driving when under the influence of drink or drug and $1,200 for careless driving. The respective penalties imposed on the accused reflected the overall assessment of the aggravating and the mitigating factors that were present for his offending.

[19]. For the present case, the list of the aggravating factors clearly differentiates this case from the other cases referred to. Its cumulative impact outweighs the personal and mitigating factors of the accused. Worse still, he is a police officer. His driving is clearly culpable despite no substantial damage cause to the vehicle or to any other property. He clearly flouted the traffic rules when he knew he was drunk but yet decided to drive the police vehicle before the commission of both offences.

[20]. Taking all these factors into account and balancing them with the mitigating and personal factors, I impose the following penalties:

Count 1^[10] – impose a fine of $5,000.

Count 2^[11] - impose fine of $1,200.

[21]. A total fine of $6,200 is imposed. However, I order that $1,000 is deducted from this total sum to reflect the delay to finalise this matter including the mitigating and personal factors.

[22]. The resulting fine therefore is that the accused, Edwin Sevoa, is ordered to pay a total fine of $5,200.00 before or by 31/01/2017. In default, 6 months imprisonment.

[23]. Since his current job involves driving which he relied on to support his family, I consider his case falls within the special reasons category under section 29(1) of the Road Transport Act. Hence, this warrants leniency not to order any disqualification from his driving. Therefore, I make that order accordingly.

ORDERS OF THE COURT

(A) Impose a total fine of $5,200 on the accused for both offences to be paid before or by 31/01/2017. In default, 6 months imprisonment.

(B) No order for disqualification from driving.

(C) 14 days right of appeal commences from the date of this written sentence.

BY THE COURT

............................................................................

Augustine Aulanga – Principal Magistrate

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^[1] [1999] SBHC 42; HC-CRC 133 of 1999
^[2] CMC-CRC No: 360 of 2015
^[3] At page 2 of his review decision
^[4] Ibid
^[5] See footnote 2 above
^[6] At paragraph 15 and 16 of the sentencing remarks
^[7] CMC-CRC No: 598 of 2015
^[8] Contrary to sections 43(1) and 40 (1) of the Road Transport Act
^[9] CMC-CRC No: 466 of 2015
^[10] Driving when under the influence of drink or drug contrary to section 43(1) of the Road Transport Act
^[11] Careless driving contrary to section 40(1) of the same Road Transport Act