R v Galonaki [2019] SBMC 7; Criminal Case 325 of 2018 (25 January 2019)

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

Criminal Case No. 325 of 2018

REGINA

-V-

BENIATO GALONAKI

Date of Hearing: January 24^th, 2019
Date of sentence: January 25^th, 2019

Mrs. Bernice. Tebitara for the prosecution
Accused in person

SENTENCE

Introduction:

1. Mr. Beniato Galonaki, you appear before me today on a charge of Careless Driving contrary to section 40 (1) of the Road Transport Act and Using Defective Motor Vehicle contrary to section 44 (1) of the Road Transport Act. You pleaded guilty accordingly, as such, I must make an appropriate sentence for your case.
   

Brief facts:

2. The brief facts are clear that on 4^th December 2018, behind Gizo Hotel road, Gizo main road between 8:00am and 9:00am you drove motor vehicle to the left side and ditched into a drain. You were trying to avoid hitting a statutory vehicle when your vehicle lost control, as a result, both front tyres and the back tyres fell into the concrete drain. The Police later arrested you, interviewed under caution and charged with Traffic Offences and was admitted bail.
   

Max Penalty:

3. The maximum penalty for Careless Driving is a fine of five thousand dollars or to imprisonment for six months, and in the case of a second or subsequent conviction to a fine of seven thousand dollars or to imprisonment for six months or to both such fine and such imprisonment.
   
4. For Using Defective motor vehicle, the maximum penalty is a fine of $500 or to imprisonment for six months, or to both such fine and such imprisonment.
   
5. This shows or indicated the intention of the legislatures or law making body to abhor or discourage such offending. Of course, it is trite law that the maximum penalty is reserved for the worse type of offending.
   

Sentencing Tariff:

6. For the Careless driving charge, the sentencing tariff ranges from bound over sentence to 5 months’ imprisonment. Depending on the circumstance of the offending and level of culpability involved.
   
7. For using defective motor vehicle chagre, it ranges from bound over sentence, fine and to imprisonment of 3 months.
   

Aggravating factors:

8. Having perused the brief facts, these are of course the apparent aggravating factors in your case:
   
   • 8.1. It happened in the heart of Gizo town – The offence committed in the heart of Gizo town where most pedestrians usually frequent to do their daily businesses. Hence, put the lives of many at risk.
     
   • 8.2. You are a taxi driver by occupation – For the charge of using defective motor vehicle, it appears that you ought to know better of the regulations governing whether vehicles are fit to be driven on the road, yet you choose to use it as public transport (Taxi) that day when you rushed to pick up your client and eventually ditched into the drain. You again put the lives of your passengers that day at risk of foreseeable harm.
     

Case authorities:

9. In Regina v Keni^[1], The Defendant was sentenced to $1,200 fine. He was charged with a subsequent offence of Driving while under the influence of alcohol.
   
10. In case of Regina v Hunikera, The Defendant was a police office and was also under the influence of alcohol when he got into an accident. The Court imposed fine of $3,000 but reduced it to $2,200 to consider delay.
    
11. Having outlined the above cases which reveals the ranges of tariffs applied in Courts within this Jurisdiction, it is in my view that this case when compared to the above cited cases falls within the mid-range of Careless driving.
    

Sentencing principle:

12. At the outset, I must say that you are not a first-time offender. You were convicted for two offences of similar kind last year 2018, only few months ago, and here you are again. Hence, I will accordingly treat you as a subsequent offender or repeated offender.
    
13. In relation to careless driving, His Worship Aulanga made sentiments in R v Rae^[2] and&#1>R Walter Kola^[3] which I think it is also important to reiterate ie:

&#82>“Careless driving is a serious traffic offence because of the conseconsequence that can flow from an accidentt is why its maximum penalty was increased in 2009...

14. In Saru v R^[4], Muria ACJ (as he then was) made the following remarks about general deterrence for careless driving offences:
    

"No one can reasonably suggest that a Magistrate who has to deal with this sort of offence on regular basis should ignore his experience of the rate at which the offences of careless driving are coming before the Court. That would be, in my view, turning a blind eye to reality. Drivers of motor vehicles which are licensed to carry passengers from the public must exercise extra due care and attention. This includes taxi drivers who are frequently coming before the courts on charges of careless driving and other traffic offences. The public must be protected against such careless and inconsiderate drivers."^[5]

Sentencing principle:

15. In terms of sentencing, the cardinal principle is simple, that is, each case must be decided on its own unique set of facts. Past cases can only be used as a guide and sometimes can be of little value. In Sahu v Regina^[6] the Court stated:

“It is well accepted that the technique of comparing sentences imposed in different cases is of limited assistance and provides only imperfect guidance as to the appropriate sentence in any given case.” However, to ensure uniformity and coherence, past cases can be of significant assistance.

Starting poin point:

16. Having considered the abovementioned aggravating factors including the circumstance of e of the offending and due consideration to the tariffs provided in the cases cited herein, I see it appropriate that the starting point are as follows:
    
    • 16.1. Careless driving - $4000 (Subsequent offender)
    • 16.2. Using Defective Motor Vehicle - $400
      

Mitigating factors:

17. I take due account to the following factors as mitigation in your case: -
    
    • 17.1. Guilty plea – all of you have entered some unequivocal guilty pleas to the charges against you. Although, I shall give full discount available in the case of R v Qoloni that is 30 % discount. Clearly it shows that you have own up to your wrongs and accept the consequences. Your guilty pleas show remorse and saves courts time and resource to run a full trial.
      

Sentencing consideration:

18. For careless driving, I hereby reduce $1,000 to consider your guilty plea.
    
19. For Using Defective Motor Vehicle, I reduce $100 to consider your guilty plea.
    
20. The resulting sentence is therefore:
    
    • 20.1. For the charge of Careless driving contrary to section 40 (1) of the Road Transport Act - $3,000.00
      
    • 20.2. For the charge of Using Defective Motor Vehicle - $300.00
      
21. This Court has reminded itself that under both section 40(1) and section 44 (1) of the Roansport Act,&th60;the power to disqualify a defendant’s licence upon conviction is discretionary. Due to your personal circumstance as a Taxi driver by occupation and as a sole breadwinner for your f, I see that any disqualifialification of your driver’s licence will affect your employment and might have crushing effect on your innocent children’s welfare and livelihood. Hence, I make no order for disqualification of your driver’s licence but strongly warned you, you cannot always cross the red line, should you return to Court in the near future, you will be considered as a dux for traffic offences here in Gizo and your driver’s licence will be disqualified forthwith.
    

Sentencing Order:

22. I hereby sentence you Mr. Beniato Galonaki to a total fine of $3,300.00
    
23. The fine must be paid to this Court before or by 4:30pm on 15^th of February 2019.
    
24. In default of the above payment - 6 months Imprisonment.
    
25. No order for disqualification of driver’s licence.
    
26. 14 days right of appeal applies.
    

THE COURT

...........................................................................
MR. Leonard B Chite
Principal Magistrate

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^[1] [2007] SBHC 93; HCSI-CRC 358 of 2006
^[2] [2015] CMC-CRC No: 343 of 2015
^[3] CMC Criminal Case No. 354 of 2015
^[4] HCSI-CRC 5 of 1992 (29 April 1992)
^[5] At Page 2
^[6] [2012] SBHC 122