Regina v Pentani [2017] SBMC 59; Criminal Case 259 of 2017 (30 November 2017)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 259 of 2017

REGINA
V
PITSON PENTANI

Trial dates: July 25, 27-28, 31, September 27, 2017

Date of closing submission: Parties just handed in their electronic written submissions through the clerks before a given due date due to circuit commitment
Date of Decision: October 25, 2017
Sentencing Submissions: November 15, 2017
Sentence: November 30, 2017

Mr. L. Adifaka for the prosecution
Mr. M. Pitakaka and Ms. M. Tahu for the defendant

SENTENCE

1. The defendant, Piston Pentani, is convicted after trial of careless driving contrary to section 40 (1) of the Road Transport Act. The maximum penalty sanctioned by the law for this offence for a first time offender is a fine $5,000 or 6 months imprisonment or both fine and imprisonment.^[1] The defendant is a first time offender and so his sentence will therefore be within this prescribed penalty.
   
2. During the trial, I found the facts uncovered how he committed the offence are these. The defendant is employed as a driver for the newspaper publishing company called “Solomonstar”. In the morning of the 18^th of January 2017, he was driving a motor vehicle to do newspaper delivery, starting from the shops at Kukum to China town. After been to Kukum, he came and stopped in front of a shop called “Abundant Life” at the China town area. As he departed the shop and reached the main driveway heading western-direction, his car was hit in the middle of the main road by an oncoming triton vehicle that travelled the opposite direction. This resulted from his own negligence by failing to lookout and concentrate on the speed of the oncoming vehicle using the main road before he could drive onto the main road. The right side of the front of his vehicle was severely damaged from the collision.
   
3. From these facts, I consider the following as the aggravating factors:
   
   • (a) His manner of driving onto the main road without considering the presence and the speed of the oncoming vehicle using the main road is a selfish piece of driving and one that poses high risk to the lives of the passengers in both vehicles; and
     
   • (b) He caused unnecessary damage to both vehicles due mainly from his negligence and culpable driving. Those damages were significant in value. For the complainant’s vehicle, the value of the damage is $120, 239.00
     
4. In mitigation, I consider the following:
   
   • (a) He is a first time offender with no previous criminal conviction; and
     
   • (b) He has cooperated well with the police during the investigation of his case.
     
5. In terms of his personal circumstances, I take into account that he is family man with 8 children. He works as a driver and his entire family depends on him for the limited salary he earned from this job. He is also a person of good character and that he had faithfully attended to all his Court hearings even after his conviction.
   
6. I am mindful that the defendant was convicted after trial. The Court’s time and the resources of the state had been used to decide his guilt. Therefore, I am unable to accept his remorse as submitted by his counsel as this may well be accepted if he pleads guilty before trial. Any remorse after trial is limited in value for the reasons that I have already stated.
   
7. The defendant as an experience driver for more than 30 years should know better that it is important to ensure the road is clear and safe before he could drive from the roadside to the main driveway. He as the driver who parked at roadside has the onus to ensure he pays attention to the speed of the oncoming vehicle and only drive in when the traffic is clear for a sufficient distance. He should not obstruct the traffic by driving in at short distance. To do this will inevitably confuse the traffic and cause motor vehicle accidents. He failed to do that as expected from him and the accident herein occurred primarily from his own fault and carelessness in his driving.
   
8. In terms of the appropriate sentence, I refer to the case of R v Mark Dennis^[2] as more or less similar to the facts of the present case. The defendant in that case was found guilty after trial for one count of careless driving. In that case, his vehicle was hit by another oncoming vehicle on the main road at the Kukum Hot Bread junction area. Before the accident, he waited at the waiting bay of the junction to drive up the eastern bound lane. He however miscalculated the speed of oncoming vehicle that travelled westerly direction and drove in but was delayed to turn to the eastern bound lane due to the traffic jam. He stopped his vehicle but was too late to avoid the collision. As a result, his vehicle was hit in the middle of the main road. His conviction was based on his own 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 careless driving offences.
   
9. The facts of the present case are more or less similar to the Dennis’s case. It is a case where the defendant is also a victim on his own mistake for miscalculating the speed of the oncoming vehicle. It is not a case where he was so driving erratically and negligently over a period of time along that road that the accident occurred where it could have been easily avoided. It is also not a case where the carelessness of the driver is so nasty or the accident is a head-on collision or similar mode of accidents that occurred at a location where it could not have occurred at all.
   
10. The only difference between Dennis’s case to the present one is, in that case, he had already stopped the vehicle on the main road in an attempt to signal to the oncoming vehicle seconds before the collision occurred while in the present case, he continued to take the risk by driving in at short distance to the front of the oncoming vehicle, resulting in the collision.
    
11. I find the defendant’s culpability is higher than Mark Dennis and therefore, his sentence must also more than what was imposed in Dennis’s case.
    
12. The maximum penalty for this offence was recently increased from $500 to $5000 in the legislation called the Penalties Miscellaneous Amendment Act 2009. This is a significant increase of 10 times and this shows how serious our legislators viewed the need to discourage this offence in the spectrum of traffic offences. Reports and scenes of accidents from careless driving especially in and around of Honiara is almost an everyday occurrence and part of daily realities brought upon by vehicle users. This is a dangerous practice and one that makes our road less safe for the road users – that is our families and our communities. Premised on that notion is the need for the Court to translate that intention objectively when it comes to sentencing, bearing in mind the cardinal principle that each case has to be decided on its own peculiar facts and circumstances.
    
13. It is my view that his culpability is towards the middle of the seriousness of careless driving and in light of my indication to parties before the hearing of the sentencing submission that a non-custodial sentence is the appropriate sentence for this case, I hereby sentence Pitson Pentani to a fine of $2,000.
    
14. I am urged to consider whether or not to invoke section 27 of the Penal Code to impose a compensation order in addition to or in substitution of the sentence imposed herein. The prosecution provided a quotation in the amount of $120, 239.00 as the amount sought for in the compensation order.
    
15. The question for me to decide is whether the Court has the jurisdiction to impose the amount of $120, 239.00 in addition or in substitution to the sentence of $2000. This is a question of law and thus, I must exercise my powers only within what the law prescribes in terms of the allowable monetary figure that Principal Magistrates can impose.
    
16. Section 3 and 4 of the Criminal Procedure Code Amendment Act^[3] as read together with section 27 of the Magistrates Court Act^[4] in effect state that a Principal Magistrate can only impose a fine up to $50,000. Thus, any imposition of any fine in excess of that figure will be erroneous, without legal basis and clearly ultra vires.
    
17. The discretion to order compensation under section 27 is part and partial of the sentencing orders of the Court. It arises mainly from the sentence reached in a criminal case. In other words, there will be no order for compensation unless the Court imposes a sentence within its jurisdiction.
    
18. I find the amount of $120, 239.00 sought by the prosecution for the compensation order is beyond my jurisdiction and thus, I am not incline to accept that submission for want of jurisdiction. I feel that it is not proper and also unfair and injustice to the complainant if I am to reduce it to any lesser amount to suit the Magistrate’s jurisdiction. Instead, it is my view that this matter may well be properly addressed in other appropriate courts such as the civil court if the complainant so decides.
    
19. Having reached this finding, I hereby sentenced Pitson Pentani to a fine of $2000 payable within 14 days from this date. In default 3 months imprisonment.
    
20. Since the defendant’s means of income to support his family is through driving, I order that he will not be disqualified from driving.
    
21. Right of appeal applies to any aggrieved party.
    
22. Order accordingly.
    

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THE COURT
Augustine Aulanga – Principal Magistrate

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^[1] Penalties Miscellaneous Amendment Act 2009
^[2] CMC-CRC No. 935 of 2014
^[3] 2009
^[4] 2014 (As amended)