R v Palmer [2019] SBMC 41; Criminal Case 322 of 2018 (11 October 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 322 of 2018

REGINA

-V-

AMBROSE PALMER

Dates of trial: July 26^th, 2019 – July 31^st, 2019
Date of Judgment: September 23^rd, 2019
Date of sentence: October 11^th, 2019

Ms. Olivia Ratu for the Crown
Mr. Clifton Meleu Ruele for the Accused

SENTENCE

1. On 23^rd of September, 2019, I had found the accused person – Ambrose Palmer guilty after full-trial on the charge of Causing Death by Reckless or Dangerous Driving contrary to section 38 of the Road Transport Act^[1]. Thereafter, he was remanded and matter proceeded successfully through sentencing and mitigation submissions. I had hold onto my reasoning until today, I now release it for purposes of his sentence.
   
2. Everyone had not foretold the sudden encounter which has cost a human-life, a dear friend to the accused person; Mr Viti Boss (“Deceased”). It was a typical working day when the accused met and assisted the deceased and two of his cousins on a ride to complete his last job for that day. It was the unforgettable and regretful journey, the journey that they encountered the disastrous accident which resulted in the death of the deceased.
   
3. The evidence adduced during trial predominantly disclosed the accused failure to decelerate from his consistent 40km/hr – 50km/hr speed limit and lack of consideration or concentration to the nature and circumstance of the road, being a sharp-bend/turn and when he was into the ingress down the hill were the primary fault that has led to the other problems resulting in the accident and death of the deceased, a domino effect from the initial fault so to speak.
   
4. The deceased life was prematurely cut-short at the age of 42. He was a father to nine (9) children and few grandchildren. I must calmly state that a Human life is “priceless” for reason that it is just impossible to quantify with any economic value. Therefore, no amount of compensation or restitution can replace his void in the family, this is a gap that will forever remain in the hearts of his innocent children and wife who will grieve his soul daily.
   

Prescribed Punishment under Road Transport Act (Cap. 131)

5. The maximum penalty prescribes under our law^[2] for this offence is 5 years’ imprisonment. This exemplifies how serious this offence is and how our lawmakers do not tolerate such offending in our communities. Court’s in our Jurisdiction have taken a stern approach by imposing deterrent sentences^[3] to reflect abhorrence and repugnance against it, so as to send a clear message to our people or drivers especially, that those who embark such a route will suffer the heavy consequences. Of course, cases are to be considered on their own set of facts and merits and that no two cases are the same or the Court cannot simply transpose matters considered in another similar case to ensemble in this case.
   

Sentencing range for offence under section 38 of the Road Transport Act

6. For reason that Solomon Islands is yet to enact a sentencing Act, past cases must always be useful in assisting the court to compare and distinguish facts and other matters to land at an appropriate starting point. For this offence, we are so lucky that the Court of Appeal has in the case of Regina v Kakui^[4] expressly Set out the sentencing tariff, that is between 3 – 4 years’ imprisonment. This excludes any mitigating features on behalf of the offender^[5].
   

Comparative sentences

7. I acknowledge the efforts rendered by counsels to provide some good number of cases which are accepted for purposes of uniformities of sentencing range in our jurisdiction.
   
8. In Mesepitu v Regina^[6], the appellant was sentenced to 2 ½ years’ imprisonment for dangerous driving causing death. The appellant had been drinking and had several people in the back of the vehicle. At about 2:00am, he drove from the field where they were drinking, at high speed and lost control of the car. The car swayed side to side and 2 men and 4 girls were thrown from the back of the vehicle. They all were injured with one dying.
   
9. In Matamu v Regina^[7]; the accused who was a RAMSI officer was drunk and driving at an excessive speed on the wrong side of the road and hit the decease at Tasahe Hill. He pleaded guilty to the charge of causing death by reckless or dangerous driving and was sentenced to 3 ½ years’ imprisonment.
   
10. In case of Regina v Rifasia^[8]; the Court imposed 2 years’ imprisonment. In that case, the deceased kicked a moving vehicle which then caused him to fall and lie down across the drive way and the defendant unfortunately at a fast speed ran over the deceased who was lying across the drive way.
    
11. In Regina v Kaipua^[9], the accused was convicted after trial for dangerous driving causing death and he was sentenced to 1 year imprisonment. The court sees that the level of offending is at the low end of the culpability or blameworthiness for an offence under section 38 of the Road Transport Act. His Worship found that the accused failed to look or focus to the front of the land cruiser whilst driving past Matahenua settlement at the time of offending. That is the fault on his part although he was not driving at a high speed. After the incident both parties entered into a customary reconciliation back at Matahenua village where compensation was paid to the decease family.
    
12. In applying the above cited cases to the one at hand, I would say that the facts of this case is fairly similar to that of Meseptiu, specifically that the accident caused the death of a person in the same vehicle, but the circumstances differ accordingly for reason that in Mesepitu the accused Manner of driving was unsteady and at a high speed. He was found to be heavily intoxicated as well. On the other hand, the accused culpability would best be akin to case of Rifasia and Kaipua, not much factors to push it further above the lower range.
    

The accused level of culpability

13. His consistent speed limit of 40km/hr – 50km/hr although considered dangerous in this case, it was attached to his failure to consider and concentrate on the nature of the road being sharp-turn and downwards hill. Putting aside his failure to consider the nature of the road, it would be proper to say that this speed limit is but an average speed limit used on a flat road. Obviously, he was caught off guarded with the sudden emergence of the sharp-turn and potentially with the vehicle’s tire puncture. Further, by gleaning from the evidences of both crown witnesses to confirm his steady driving throughout their journey to Munda and return trip to Noro until they met the fatal accident, I can only come to a conclusion that his level of criminal culpability rest squarely on the lower-end.
    

Starting Point

14. For what has now become apparent, I pitched the starting point at 3 years’ imprisonment, this is to reflect his criminal culpability, aggravating factors and the tariff provided in the case of Kaukui^[10].
    

Mitigating factors

15. I validated his personal circumstances, being a father to 4 children and 2 dependents (adopted children) plus the sole-breadwinner in the family. He is a first offender and has been a law-abiding citizen for the past 38 years. He has reconciled with the deceased family and has been assisting them on fortnightly basis to support the wife and children. He normally provides $500 fortnightly payment to the family of the deceased.
    
16. While I might agree with the Crown Prosecutor on the weight given to an accused good character as expounded in the Millberry v R^[11], there is no strict mathematical rule or approach in the application of this consideration. In my respectful view, these are matters left in the discretion of the sentencing Judge or Magistrate to decide on and provide what weight or reduction to be given, but it must be justifiable and not one that is borne out of vacuum or beyond fathom.
    

Sentencing consideration

17. Having assessed the mitigating factors and genuinely deducted them from the starting point, it is my respectful view that the resulting sentence is 2 years’ imprisonment. I agree that this sentence will incorporate both general and specific deterrence. The accused must now learn to be cautious, vigilant and more importantly drive safely at all times whilst driving the Noro – Munda Highway Road. This sentence must resonate in our communities and the Country that while we appreciate importing more vehicles into Solomon Islands, most of them are reconditioned vehicles and attached to them are pros and cons.
    
18. I must strongly say that all current vehicle drivers and potential future drivers must be reminded that those who come down this path will not expect any lenient sentence from the Court.
    

Sentence Orders

1. I hereby sentence the accused person – Mr Ambrose Palmer to 2 years’ imprisonment.
2. Sentence to commence from date of first remand.
3. Right of appeal applies within 14 days.
4. Order accordingly.
   

THE COURT

................................................
MR. LEONARD. B. CHITE
Principal Magistrate

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^[1] (Cap. 131)

^[2] Section 38 of the Road Transport Act (Cap. 131)
^[3] Regina v Kaukui [2010] SBCA; CA-CRAC 11 of 2009; Regina v Rifasia [2016] SBMC 20; Criminal Case 55 of 2016; Mesepitu v Regina [2006] SBHC 15; Matamu v Regina [2010] SBHC 121.

^[4] [2010] SBCA 2; CA-CRAC 11 of 2009
^[5] At page 3 of the Judgment

^[6] [2006] SBHC 15
^[7] [2010] SBHC 121
^[8] [2016] SBMC 20
^[9] [2017] SBMC 27

^[10] Above n. 4

^[11] [2002] EWCA Crim 2891 (09 December 2002) at para 29.