Regina v Ogrady [2018] SBMC 7; Criminal Case 289 of 2018 (29 March 2018)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CRIMINAL JURISDICTION

Criminal Case No. 289 of 2018

REGINA

V

LUKE VAIKAWI OGRADY

Date of Sentencing Hearing: March 28, 2018
Date of Sentence: March 29, 2018

Mrs. S. Ramosaea of the Office of the Director of Public Prosecutions
Accused in person

SENTENCE

Charges

1. This is a sentence for the accused, Luke Vaikawi Ogrady, who pleaded guilty to the following traffic offences:
   
   • (a) Careless driving, contrary to section 40 (1) of the Road Transport Act.
   • (b) Presence of alcohol in person’s blood, contrary to section 43A (1)(a) of the Road Transport Act,
   • (c) Motor vehicles to be licensed, contrary to section 7(1) of the Road Transport Act,
   • (d) Motor vehicle to be insured, contrary to section 8(1) of the Motor Vehicle (Third Party Insurance) Act, and
   • (e) Driver’s to be licensed, contrary to section 20(1) of the Road Transport Act.
     

Summary of facts

2. The brief pertinent facts of the case is this. The accused is a police officer and at the time of the offending, he has been working for the Royal Solomon Islands Police Force for about 20 years.
   
3. In the early hours of 1^st March 2018, he was drinking alcohol with some of his friends somewhere in the Honiara town. Towards 3:00am, he decided to return home and so he drove back to his residence in his private vehicle. As he drove up the Florence Young hill and reached a curve along the hill, his vision was distracted by a high beam light of an oncoming vehicle and this made him to run off the road and collided with an electric post situated at the roadside. His vehicle sustained damage as a result of the accident.
   
4. Following the accident, Police was called to attend the scene and apprehended him. He appeared drunk and hence was conveyed to the Kukum Police Station to undergo a breathalyser test. His final test reading was 0.209% which was above the permitted level for driving. Police also checked his vehicle, third party insurance and driving licences and found they were all expired.
   
5. He was then charged for all the traffic offences referred to earlier.
   

Decision

6. In this case, it is an undisputed fact that he was a police officer when he committed the traffic offences. He knew very well that he was drinking alcohol that night and also his vehicle license so as the third party and his driving licenses were not valid, yet he continued to make a conscious decision to drive the vehicle. In his capacity as a police officer, this should ring him a bell that it is illegal for him to drive the vehicle at the material time knowing very well the consequences that will follow if he is confronted by the police. His conduct has deliberately flouted the basic traffic law and regulation that as a rule of thumb, he as the owner and driver of a motor vehicle should be aware of.
   
7. Also, the accused has displayed a conduct that is contrary to what is expected of him. Being a police officer, there is legitimate public expectation for him to uphold the law at all times and the compliance to the traffic rules and regulations is one of those many expectations. He carries with him that obligation until he ceases from being a police officer.
   
8. In 2016, the message contained in the pamphlet titled “Introduction of Alcohol Testing in Solomon Islands” distributed by the Royal Solomon Islands Police Force to the general public during the introduction of the breathalyser test has this very important advice “The RSIPF is pleased to inform the public of Solomon Islands that legislation for alcohol testing of drivers or operators of vehicles has been gazetted and is now in force.” It then continues on to say “If you are going to drink don’t drive. If you are going to drive don’t drink. This advice comes from none other, but from the Ministry where the accused was employed and working for. Thus, the accused should know better and lead by example. It is not good enough to expect the public to follow the traffic laws while he as a member of the RSIPF did the opposite. His conduct did not speak well of him. He has brought disrepute to the image of the RSIPF and tantamount to erode the public confidence and trust on the discipline expected of the officers within RSIPF.
   

Allocutus

9. In his explanation, he said sorry for what he did and that it was the oncoming vehicle that caused him to run off the road. He said that his driving license was given to police well ahead in time of the accident so that his office would facilitate its renewal but it was his office that failed to have it renewed in time. He also said that before the accident occurred, his vehicle was with a mechanic and it was a day before the accident that he return it back for use so that he could renew its license.
   
10. He expressed his dismay about how his case was investigated by the overseas police officers/advisers and the way they treated him during the course of the investigation was very harsh and improper.
    
11. I have considered these to be the reasons why he committed these offences but treat them not as excuses.
    

Personal and mitigating factors

12. This incident has brought upon him shame and humiliation not only to his family but also to his work colleagues. This is quite ignominious for him as a hardworking police officer who devoted his 20 years of service to the RSIPF. He now lost his job and no longer on the payroll. Following his termination, he is now on the verge of returning to his home province but still waiting for the outcome of this case. He has children attending school and in light of his termination from the job, he will find it very difficult to pay their school fees in the future.
    
13. This is very unfortunate. It shows the real life situation the accused is now facing and what will unfold in the future. His job and other benefits enjoyed as an employee of the state have already been ceased and stripped. No doubt, he will remember this incident for the rest of his life.
    
14. However, when closely scrutinised, the blame here must be on the accused. Had he refrained from driving that vehicle knowing that he was under the influence of alcohol the material time, he would not end up like this. He ignored this common sense thought and instead take the risk.
    
15. It is been recognised that a person’s ability to drive properly will be impaired when under the influence of alcohol. For example, in Cheffers v R^[1] then CJ Ward, stated:
    

“Driving whilst under the influence of alcohol is extremely serious offence. Anyone who drives in such a state has deliberately done a course of action that puts his own and far more seriously, other people’s lives at risk. However carefully he may attempt to drive, his reactions if confronted with an emergency will not be effective as when he has taken no alcohol.”^[2]

16. In my view, the accused could have averted the accident if he didn’t take alcohol the material time. He could have driven slowly on his lane if his vision is distracted by the high beam light of the oncoming vehicle. The photographs of the damage caused to his vehicle as a result of head-on collision with the electric post show the damage was substantial. This indicated that he was travelling at a relatively high speed up the hill. The front left section of his car was severely bent backwards. In my view, only vehicles travelling at high speed when collided with an electric post would sustain such damage. I therefore have doubts to his explanations that he was not travelling at a high speed at the time of the accident.
    
17. I take into account and considered in his favour his remorse and being a first time offender. He also entered guilty pleas to these offences at an early stage his matter was mentioned. This saves so much of the court’s time and resources. By pleading guilty, I agree he now committed serious traffic offences. However, is trite law that he must be given a discounted sentence for pleading guilty to these offences.
    
18. In light of his mitigating factors and as prescribed in the case of Qoloni v R,^[3] I will give him 10 - 25 percent discount sentence of the normal range of sentence for guilty plea traffic matters to reflect the utilitarian value of his guilty pleas.
    

Sentencing Orders

19. In my view, a noncustodial sentence is the appropriate form of sentence to be imposed on the accused herein. I therefore sentence him as follows:
    
    • (a) Careless driving, contrary to section 40 (1) of the Road Transport Act – fine of $1,500
      
    • (b) Presence of alcohol in person’s blood, contrary to section 43A (1)(a) of the Road Transport Act – fine of $4,000
      
    • (c) Motor vehicles to be licensed, contrary to section 7(1) of the Road Transport Act – conviction without penalty. The reason being is that he just returned the vehicle from his mechanic the day before the accident occurred and therefore, this is not a deliberate failure to renew its license like other cases ordinary unlicensed motor vehicles cases.
      
    • (d) Motor vehicle to be insured, contrary to section 8(1) of the Motor Vehicle (Third Party Insurance) Act - conviction without penalty. The same reason for the penalty for driving the unlicensed motor vehicle also applies herein.
      
    • (e) Driver’s to be licensed, contrary to section 20(1) of the Road Transport Act – fine of $1,500. The duty for him to renew his driving license is within his means and he should not have relied on police to do so on his behalf. This is because by looking at his driving license tendered to court, it was just renewed a day after the incident so I have doubts to accept his explanations.
      
20. Total fine of $7,000 to be paid within 42 days as of today. In default, 1 year imprisonment.
    
21. Order for him to be disqualified from driving for a period of 12 months as of date pursuant to section 29 (1) of the Road Transport Act.
    
22. 14 days right of appeal applies.
    
23. Order accordingly.
    

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THE COURT
Augustine Aulanga – Principal Magistrate

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^[1] Unrep. Criminal Case No.11 of 1989
^[2] At page 3
^[3] [2005] SBHC 73