R v Furai [2020] SBMC 20; Criminal Case 537 of 2020 (16 June 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 537 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: JOHN KAI FURAI

Before: Emily Z Vagibule

Prosecutions: Mr Rodney Waokea

Defence: Self-represented

Date of sentencing submissions: 16^th of June 2020

Date of sentence: 16^th of June 2020

SENTENCE

1. Mr John Kai Furai, you have been charged for one count of presences of alcohol in a person’s blood. This offence is contrary to section 43A (1) (a) of the road transport Act (as amended by the Police and transport Legislation) (Amendment) (Alcohol Testing) act 2016.
2. The maximum penalty for this offence can be found under 43(1) (b) (i) of the above mentioned law, which is 10,000 penalty units or 12 months imprisonment or both^[1].
3. Since you chose to represent yourself after being given the opportunity to look for a lawyer, the charge was put to you earlier on this morning. I recorded a guilty plea, and to ensure that you plea was unequivocal, I then gave you the opportunity to explain your side of the story. Having listened to your explanations, I then entered conviction based on your own guilty plea.
4. The facts of this case can be summarised as follows:

You were arrested on the 8^th of May 2020 in front of the Central Police Station, which is situated along the Mendana Avenue Road. The officers from Kukum Traffic were doing a road check as part of the Corvid-19 operations. It was then that they sighted the vehicle you were driving. They pulled you over and proceeded with their normal checking routines. They found that your driving license, vehicle license, and the vehicle third party insurance were still valid. Further to that you were tested for alcohol, and it was based on the results that you were later charged for the offence at hand.

5. I note that the facts were silent on what exactly had caught the attention of the officers when they sighted the vehicle you were driving. You did not even tell me about what you did that caused the officers to pull you over. The only thing I have with me is the fact that you were pulled over. Thus, I cannot make up a scenario in my head about what might have happened. In your explanation, you had been working and later met up with your in-laws to have some drinks. However, you decided to leave when they were acting out of control. You also mentioned something about dropping someone at Burns creek and that it was on your way that you were caught by police.
6. The direction you were travelling is quite confusing if you were intending to travel to Burns creek, unless you were intending to use the roundabout between the entrance to the Heritage Park Hotel and the Central Bank.
7. I understand that the road you were arrested at, is right in the heart of Point Cruz, an area accessed by a good number of vehicles carrying people, as well as pedestrians. Further to that, I also understand that the incident occurred in the night time, which makes it all the more serious. Your decision to use the vehicle you were driving when you were caught, was one that had posed a significant risk to the lives of those using the said road at that given time, and most importantly your own life.
8. As admitted earlier, you are well aware of the punishments handed by the court on those who have been convicted for this same offence. In your defence, you said that it was the first time in your life to drive a vehicle on the road after consuming alcohol. I find this hard to believe, as I myself have seen how so many drivers have been engaged in this unlawful conduct, but unfortunately the police are not doing enough to have them brought to court. While there may have been a decrease in the commission of traffic offences, I for one would not agree that there is indeed a decrease.
9. The traffic laws and regulations will never be effective if our very own law enforcing body lacks consistency in the way they carry out their duties.
10. As we speak, there are some people currently spending time in prison for traffic related offences, as well as others who are trying their best to complete the fines imposed by the court.
11. What I see here is nothing but a clear example of the NO CARE attitude that most of us Solomon Islanders are infested with. We tend to take less time in assessing whether what we are about to do is lawful or not. We do not care if our actions will result negatively on the lives of others or not.
12. The courts have already stressed their position over the years, and people are still being ignorant. It is true to say, that when we consume alcohol, we will no longer be at our right senses. We become vulnerable when it comes to combatting any unforseen accident that occurs. Clearly as highlighted in the case of Cheffers v Regina, a driver will not be able to handle things well the way he or she would when he or she is not under the influence of alcohol^[2]. Even an expert driver would never avoid an accident if one was to occur when he or she is in a vulnerable and intoxicated state.
13. Further to that, I also wish to remind you as to why you should now view a vehicle as a weapon that is capable of taking innocent lives. It was fortunate on your part that you were not involved in any fatal accident that goes on to claim the lives of any one along the road, or yourself.
14. Earlier, you did ask me to consider the fact that you are a father of four and that your income has been affected by the corvid-19 situation. In light of that, I will say, that this is all the more reason for you to use your common sense before doing what you did. If you are serious about your role as a father and that your finances are being disturbed, then why would you even want to do this at the first place? This is exactly what you should have foreshadowed before proceeding further.
15. The court will still maintain its position when it comes to the offence at hand. The prevalence of this offence now serves as a factor for the court to label such an offending as very serious in nature. While the facts and circumstances presented in this case may not warrant maximizing the penalty of this offence, it still requires the court to send out a message of general deterrence to all like-minded offenders out there.
16. This afternoon, I will pay due consideration to the mitigating and aggravating factors involved. In terms of the mitigating factors, I noted your, early guilty plea, your remorse, the fact that you are unrepresented, the fact that you are a first time offender and your personal circumstances. As for the aggravating factors, I have noted the seriousness generally, your level of culpability which shows you as the role player in the commission of this offence, the involvement of alcohol and the fact that the incident occurred at night.
17. I hope this experience should be able to teach you a lesson of why you should always weigh your options before proceeding into any unlawful conduct. Whatever sentence I will impose this afternoon should also come as a strong warning to you, to never engage in such unlawful behaviour ever again.
18. In terms of sentence, prosecutions has suggested a fine as well as the range I should be considering. In response to that, you asked me to consider you being a family man, something which you should have thought of at the first place, and if I should just hand done a fine below 1000 or a bound over.
19. In my view, to consider your request would defeat the whole purpose for specific and general deterrence, prevention, rehabilitation and retribution in this regard. At this stage, I must stress the need to address the prevalence of this offending and the need for both the police and the general public to know where they stand when it comes to the laws of this country.
20. It is only proper in my view, that the appropriate sentence I should impose on you, is that of a fine. I will now refer to the case of Joel Likilia & Allen Kokolabu v R [1998/89] SILR to stress the why I am able to reach the amount that will later be imposed on you. In that case, Ward CJ highlighted that:

Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide (Emphasis added)^[3]

21. With that, I will pitch my starting point at the amount of $5000, 1700 is reduced to reflect your early guilty plea, I further reduce 1000 for the remaining mitigating factors, which brings us to 2300. I then added a total of 1200 to reflect the aggravating factors involved.
22. Hence, I now order that you be sentenced as follows:

ORDERS:

(i) For the count of presence of alcohol in a person’s blood, the fine of SBD$3500;
(ii) Fine is due by the 31^st of July 2020;
(iii) In default of payment, 6 months’ imprisonment; and
(iv) Right of appeal applies to any party that is aggrieved with the sentence imposed.

Dated this 16^th day of June 2020.

___________

THE COURT

EMILY Z VAGIBULE-MAGISTRATE

---

^[1] 43A (1) (b) of the road transport Act (as amended by the Police and transport Legislation) (Amendment) (Alcohol Testing) act 2016.
^[2] (Unrep. Criminal Case No. 11 of 1989)

^[3] [1998/89] SILR