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Regina v Kere [2016] SBMC 33; Criminal Case 932 of 2016 (12 December 2016)

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


Criminal Case No. 932 of 2016



REGINA

-v-

GARRY KERE


Prosecution: Ms. Siako of Police Prosecution’s Office (PPO)
Defence: Accused in person
Arraignment: December 8, 2016
Sentence: December 12, 2016


SENTENCE


  1. The accused, Garry Kere, pleaded guilty to the following criminal charges:

(i) Dangerous driving, contrary to section 39(1) of the Road Transport Act. It carries a maximum penalty of fine of $5,000 or 6 months imprisonment or both;


(ii) Presence of alcohol in person’s blood contrary to section 43A of the Road Transport Act (As amended).[1] Has maximum penalty of fine of $10,000 or 12 months imprisonment or both;


(iii) Driving without a valid driving license, contrary to section 20(1) of the Road Transport Act. Has maximum penalty of fine of $5,000 or 6 months imprisonment or both; and


(iv) Taking vehicle without authority, contrary to section 59(1) of the Road Transport Act. Has maximum penalty of fine of $3,000 fine or 6 months imprisonment or both.

Facts


  1. The facts of this case revealed that in the evening of 1st December 2016, Garry Kere (“accused”) went to Kukum area and was drunk after drinking a bottle of the illegal liquor called kwaso. When he arrived, he walked into the office of Faith Company Ltd and took the keys of a blue triton pickup vehicle without asking Glen Mauri who looked after that vehicle. He got inside and drove to Lengakiki area. Between 8:00pm – 9:00pm, he drove back along the Mendana Avenue road heading easterly direction in a fairly high speed. As he reached the Central Market eastern gate junction, he intended to move to the low lane behind a RAV4 and when he turned to the low lane he realized a vehicle at his back was also traveling on the low lane so he made a sudden return to the high lane but bumped into the back of the RAV4. He continued to drive past the RAV4; lost controlled of the vehicle and climbed on the island, and entered the opposite traffic. There, he collided with a white bus travelling the westerly direction. Three passengers onboard the bus sustained minor injuries as a result of the collision.
  2. The RAV4 sustained extensive damage to its back boot and also the front of the white bus. The vehicle driven by the accused also sustained extensive damage to its front as a result of the two collisions. These damages were indicative of the speed of the triton, the size of the vehicles involved and the magnitude of the impact at the material times.
  3. Realizing he had collided with those two vehicles, he got out of the vehicle and escaped towards the direction of the Honiara City Council Administration Office. He was halted by the Law Enforcement Officers and conveyed to Central Police Station that same evening. At the Central Police Station, police conducted a breathalyzer tests on him and the final result showed a reading of 0.238% of alcohol present in his blood. It was also discovered by police that his driving license was expired since 4th August 2016, a period of almost 4 months prior to the date of the offending.

  1. During arraignment, he entered guilty pleas to all the charges and was remanded in custody pending his sentence.

Sentencing principles


  1. It has been recognized that there are sentencing principles that the Court should follow in all criminal cases. Those principles were adopted from common law and become part of our domestic laws. In the case of Johnson Tariani v Regina[2], Sir Mari Kapi J, pointed out those principles as follows:

“Where the law simply provides a maximum sentence, the Courts are given a very discretion to determine the appropriate penalty in each case. The Courts have developed principles of sentence which guide the exercise of this discretion which may be described as deterrence, separation, rehabilitation and retribution.”[3]


  1. In relation to the first sentencing principle of deterrence, it is one of the most frequently used purposes in sentencing. Under this theory, if the sentence imposed upon the accused to produce lack of repetition of criminal behaviour, the sentence is considered to have achieved its purpose. That is to promote peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way. In the present case, the maximum penalties of these offences are indicative of the serious need to warn and discourage the public of the need not to commit these offences. Our Parliament has just recently increased the fines for these offences in the Penalties Miscellaneous Amendments Act 2009 and more recently, the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016. Given the recent enactment of these legislations, the Court’s duty is to give effect to their intentions when sentencing traffic offenders.
  2. The second is separation of the criminal from the society. This is considered very important and moreover crucial in crimes which involve grave risk to the personal peace of the members of the community, such as murder, robbery, rape, etc. However, it should be noted that the emphasis is placed on the protection of the community rather than the offender. In this case, the offences involved motor traffic accident and our Courts have stressed the need to protect public from the evils of careless drivers with adequate penalties. In serious traffic cases, custodial sentence should be imposed. In the present case, despite no death from these collisions, the facts showed that the driving of the accused was very culpable and negligent and rendered two vehicles to sustain extensive damages from his manner of driving. The passenger on-board one of the vehicles had sustained injuries as a result. The Court must not overlook the need to protect the pedestrians and the road users from this type of driving displayed by the accused by not only imposing custodial sentence where appropriate but also restricting his privilege and opportunity to drive vehicles for certain period of time.
  3. The third component of this principle is rehabilitation. The emphasis of this theory is put on the offender. The notion behind this is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community. That is, he will obey the law rather than disobeying it. In many of the developed countries, like Japan,[4] special correctional have been built for this purpose. In others, they have introduced probation services for releasing the offender into the community under special supervision. In this case, the accused now realised his wrong and as I observed from his demeanour, he will take steps to see it is not repeated in future. In other words, he now realises the need to refrain from driving if he takes alcohol if given the second change. Ordinarily people learn from their mistakes and the accused is no exception.
  4. The fourth element of this sentencing exposition is retribution. This theory of sentencing may be referred to as ‘vengeance’. This conveys the notion that the person who commits a crime must ‘pay’ for it, or ‘deserves’ it. This purpose of sentence is not foreign to some cultures of Solomon Islands in the past but at present it is strongly practiced in other countries and in particular for example in Papua New Guinea. This is what normally referred to as ‘payback’. This notion grew out of many years of tradition in the village. A person who broke the rules or customs of the village deserved punishment.
  5. Despite those sentencing guidelines, it is acknowledged that sentencing is not an easy task as recognised in Regina -v- Kata and Others [5] where the Court of Appeal stated:

"There is no doubt that sentencing offenders is a difficult task. It is important that, whilst acknowledging the independent discretion that must be exercised by each judge (or Magistrate) in each case, the courts must strive for coherence and similarity of outcome in similar cases. The allowances must be made for differences, both in objective circumstances and subjective features. At the same time, each judge or magistrate needs to consider what their judicial colleagues have done in other cases with a view to attempting to achieve a collegiate and coherent system of sentencing. Otherwise, the goal of equal justice will be frustrated and the administration of criminal justice tarnished by the perception that it represents the purely personal opinions of individual judge and magistrates and offenders whose offences are similar and personal situations much the same will suffer sentences that differ for no apparent rational cause, whilst similar sentences may be imposed where offences vary significantly in gravity and subjective features are very different. Of course, uniformity is not the goal: the circumstances of particular offences more often than not will vary greatly, as will subjective factors. The objective is to achieve a coherent system of sentencing in so far as that can be achieved, whilst recognising and respecting the obligation of each judicial officer to exercise his or her independent discretion and Judgment. Accordingly, it is not only proper but desirable that judges and magistrates should be informed of sentences that have been imposed by their colleagues and bear those outcomes in mind in considering his or her particular case. Over time, a pattern will emerge as the number of cases increase and, hopefully, a range of sentences can be discerned. The presence of the pattern and demonstrating of a range obviously requires more than just a few cases, although it is of course inevitable that, towards the beginning of this process, the number of cases will be small."[6]

Aggravating factors


  1. From the facts of this case, I consider the following to be the aggravating factors:

Mitigating and personal factors


  1. In terms his mitigating factors, I considered first of all his guilty pleas to the offences. Secondly; he is a first time offender and thirdly; he was very remorseful for his involvement in causing the collision with the other vehicles. In terms of his personal circumstances, I take into account that he is a married person and no doubt, his family will be affected by his incarceration. I further take into account his limited education and that he was only a grade six leaver. His limited education might also contributed to his demise in not able to think properly about the consequences of his action compared to educated menfolk before driving the vehicle whilst intoxicated with kwaso.

Sentencing consideration


  1. The sentences imposed by the Court on past occasions for the offences of dangerous driving, driving without a valid driver’s license and taking vehicle without authority are normally fines. They ranged from $1,000 to $1,200 for each offending. Only in exceptional cases may attract custodial sentences.
  2. For drunk driving offences, the case of R v Sulega[7] and R v Hunikira[8] provide a good guideline for the starting point to follow for guilty plea matters.
  3. 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.”[9]


  1. 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.”[10]


  1. To reflect the change to the increase of the sentence under the Penalties Miscellaneous Amendments Act 2009 for this offence, I made the following remarks in the case of R v Hunikira[11]:

“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 25 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.”[12]


  1. If fine is to be considered as the option to sentence the accused for the present charges, the anticipated total fine would be about $7,000 or even more. Hence, this raises a question whether he is financially prepared to pay this total fine if imposition of fine is the appropriate form of penalty.
  2. In his allocutus, he stated that he was unemployed and depended on his wife for financial support. This piece of evidence is significant because it shows whether or not he has the means to pay any fine since the Court must be realistic with its sentence taking into account his current means of income. Therefore, in my view, a non-custodial sentence is not an option for me given the fact that he is unemployed. A custodial sentence is inevitably the appropriate form of penalty I will impose on the accused.
  3. This brings me to the question of what ought to be the appropriate custodial sentence for the accused. This question will be decided by looking at the past sentences handed by the Court as a form of guidelines in terms of the past sentences imposed for the same offence and considering those sentences in light of his culpability.
  4. In R v Samo,[13] the offender was sentenced to 4 months imprisonment for the charge of reckless or dangerous driving, 3 months imprisonment for taking vehicle without authority and 2 months imprisonment for driving without a valid driver’s licence. In that case, the accused took the vehicle without permission and has no valid driving license. He drove the vehicle along the Tuvaruhu Road heading towards China town. On his way back and as he was about to turn into a feeder road leading to a workshop, he hit a young female pedestrian who was walking across that feeder road. He threw her off the road and landed on a heap of soil about 6 steps away from the site of the impact, rendering her unconscious. She sustained injuries to her body. Fortunately, she survived. In that case, the Court expressed the need to seriously discourage culpable driving taking into account its prevalence in Honiara.
  5. The facts and circumstances of the present case are quite serious to the case of Samo. In Samo, the accused was not drunk and no damage was caused to other vehicles except for hitting the female pedestrian. In the present case, three vehicles sustained extensive damages. Three passengers in the bus also suffered minor injuries. Further, the accused was so intoxicated when he involved in the accident. When these factors are considered, his culpability is at the upper scale for each of the offences and therefore, the sentences he expects to receive must be higher than the sentenced imposed in case of Samo.
  6. The sentence that I will pass will not only reflect his personal and mitigating factors, but must able to protect the public particularly our pedestrians and road users in Honiara that enough is enough of this culpable and arrogant driving especially when drivers continued to ignore the ongoing police awareness of the need not to drink and drive or vice versa.

  1. This sentence must also send a clear message to any likeminded offender the new approach this Court will take in terms sentencing traffic offenders for dangerous and drunk driving offences involving serious or nasty motor vehicle accidents in light of its prevalence in Honiara.
  2. I therefore sentence Garry Kere as follows:
  3. All sentences will run concurrent meaning that he will only serve 6 months imprisonment.
  4. Pursuant to section 29 of the Road Transport Act, he is disqualified from driving or obtaining or renewing his driving license for a period of 12 months starting from his date of release from his imprisonment term.
  5. Either party has 14 days right of appeal.

ORDERS OF THE COURT


(A) Impose 6 months concurrent sentence for the accused.


(B) Period spent in custody is to be taken into account.


(C) Accused disqualified from driving or obtaining or renewing his license for a period of 12 months starting from his date of release from his imprisonment term.


BY THE COURT


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

Augustine Aulanga – Principal Magistrate


[1] Amended by the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016
[2][1988-89] SILR 7
[3] This principle has been also discussed in Acting Public Prosecutor v Uname Aumane & Others [1980] PNG LR. 510
[4] An example here is drawn from Acting Public Prosecutor v Uname Aumane & Others [1980] PNG LR. 510
[5] SICOA – CAC No. 35 of 2007
[6] Cited at paragraph 21 of R v Matamu SBHC – CRC No. 78 of 2010
[7] [1999] SBHC 42; HC-CRC 133 of 1999
[8] CMC-CRC No: 360 of 2015
[9] At page 2 of his review decision
[10] Ibid
[11] See footnote 2 above
[12] At paragraph 15 and 16 of the sentencing remarks
[13] CMC Criminal Case No. 614 of 2016


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