Regina v Kaipua [2017] SBMC 27; Criminal Case 405 of 2016 (30 June 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS )

(Criminal Jurisdiction)

Criminal Case No. 405 of 2016

REGINA
-v-
MAFTON KAIPUA

Date of Hearing: June 21, 2017
Date of Sentence: June 30, 2017

F. Fakarii for the Prosecution
C. Hite for the Defence

SENTENCE

1. Mafton Kaipua is convicted after trial for one count of causing death by reckless or dangerous driving contrary to section 38 of the Road Transport Act. It carries 5 years maximum penalty.
   
2. In my judgment, I found that he caused the death of the deceased when he failed to look or focus to the front of the land cruiser whilst driving past Matahenua settlement at the time of the offending. That is the fault on his part although he was not driving at a high speed.
   
3. After the incident, both parties had entered into a customary reconciliation back at Matahenua village, in West Rennel, where $16,000 in cash and cheque and foods were given to the family of the deceased.
   
4. In July or August 2016, an arrangement was made at Kolaridge in Honiara for the accused and the deceased family to meet. During that occasion, he personally apologized to them over the tragic incident that resulted in the death of their child. It was an emotional occasion where they accepted his apology and thereafter, their relationship is now in good terms.
   
5. The accused is now 17 years of age. Therefore, he is to be sentenced under the Juvenile Offenders Act.
   
6. The prosecution concedes that his level of offending is at the low scale of the culpability or blameworthiness of an offence under section 38 of the Road Transport Act. So what then should be the appropriate sentence for this case?
   
7. For adult offenders, the range of sentence for this offence is 3 – 4 years as recommended in the Court of Appeal case of Regina v Kaukui.^[1] However, this case is different because the accused is a juvenile. Therefore, the range should be much lower that the range prescribed in the case of Kaukui.
   
8. Section 16 of the Juvenile Offenders Act provides the method of dealing with young offenders when charged with offences and the options are self-explanatory.
   
9. For this case, I have to decide it in its own context of how the facts unfolded and more so on the basis of being a juvenile.
   
10. The mitigating and personal factors advanced on his behalf are enormous and overwhelming. I have considered them in their entirety. I am also mindful that the sentence that he will receive should not be an obstacle for his early reintegration into his native community when he releases from prison.
    
11. In R v AH,^[2] the Supreme Court of New South Wales made the following remarks when sentencing juveniles which I think is highly applicable here:
    

“In sentencing an offender who commits a crime at the age of 16 years and eight months, principles of retribution and general deterrence may be of less significance than when sentencing an adult offender for the same offence. Recognition is to be given to the capacity of young persons to reform and mould their character to confirm to society's norms, with considerable emphasis to be placed on the need to provide an opportunity for rehabilitation. In considering the role of retribution on sentence, the Court will have regard to emotional immaturity or a young person's less-than-fully developed capacity to control impulsive behaviour”^[3]

12. The sentiments expressed in that New South Wales case is a persuasive authority and perhaps a reference point for our courts to follow when faced with the issue of sentencing juveniles in our jurisdiction.
    
13. In this case, a child had lost his life and his family had suffered much following his death. The impact that it will have the deceased family will remain with them for the rest of their lives. No amount of money or compensation will please or restore him back to his family. Also, the deceased was a 2 year old child when he was killed by the vehicle driven by the accused. Sadly, he was deprived of a long life that is yet ahead of him. Thus, when it comes to sentencing, the court should not unnecessarily buy into the temptation of focusing only on the offender’s side of the story but must also consider the suffering and the hardship faced by the family who lost their family member as a result of the action of the offender.
    
14. Therefore, in cases where death is a consequence of an offender’s reckless or dangerous driving, the court will not take it lightly but must issue a deterrent message to signal to the public that anyone who decides to commit this type of offence will go to prison.
    
15. When all these factors are considered and taking into account this offence involves death of a human being, it is my view that a custodial sentence is inevitable. The defence’s submission that the court should impose a non-custodial sentence to the accused in light of the strong mitigating factors s inappropriate and unconvincing.
    
16. I sentence the accused to 1 year imprisonment backdated to his presentence period in custody. This sentence in my view fits well the circumstance of his case since his level of offending is at the low end of the culpability or blameworthiness for an offence under section 38 of the Road Transport Act. Order that the accused will only serve half of that sentence and thereafter, be released to serve the balance of that term under the care and supervision of Grace Kaitu’u.
    
17. Right of appeal applies.
    

...........................................................................
THE COURT
Augustine Aulanga – Principal Magistrate

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^[1] [2010] SBCA 2; CA-CRAC 11 of 2009
^[2] [2011] NSWSC 1535

[3] Referred to in State v K.R.A.K - Sentence [2013] FJHC 339; HAC73.2013 (17 July 2013) at paragraph 21