R v Afulia [2020] SBMC 21; Criminal Case 443 of 2020 (26 June 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 443 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: Justine Geo Afulia

Christopher Oto

Before: Emily Z Vagibule

Prosecutions: Ms Florence Hiroshachi

Defence: Mr George Taedi

Date of sentencing and mitigation submissions: 25^th of June 2020

Date of sentence: 26^th of June 2020

SENTENCE

1. Mr Afulia and Mr Oto, you are both charged with traffic related offences. In your case Mr Afulia, you are charged with one count of using unlicensed motor vehicle, which is contrary to section 7(1) of the Road Transport Act. As for you Mr Oto, you are charged with one count of permitting unlicensed motor vehicle, which is contrary to section 20 (2) of the Road Transport Act.
2. For purposes of this sentence, I will outline the sections referred to, and hence, they are as follows:

Section 7 (1): Subject to section 13 any person who uses or permits to be used on a road, which is repairable at the public expense, any motor vehicle or trailer which is not licensed under and in accordance with the provisions of this Part, shall, unless such person, vehicle or trailer is exempted from the provisions of this section by or under the provisions of this Act or any regulations made thereunder, be guilty of an offence and liable to a fine of five hundred dollars or to imprisonment for six months or to both such fine and such imprisonment^[1].

Section 20 (2): No person who owns or who has charge of a motor vehicle of any class shall cause or permit any person to drive such motor vehicle unless such person is the holder of a valid driving licence or a valid provisional licence endorsed in respect of that class of motor vehicle^[2].

Section 20(4) Any person who contravenes or fails to comply with the provisions of this section shall be guilty of an offence and liable on first conviction to a fine of two hundred dollars or to imprisonment for six months, and on a second or subsequent conviction to a fine of five hundred dollars or to imprisonment for six months or to both such fine and such imprisonment^[3].

3. Prior to the year 2009, the maximum penalty for both offences, was fixed at 500 dollars or six months imprisonment or both. This can be reflected in the sections highlighted. As of 2009, the Penalties and Miscellaneous Amendment Act 2009, came into effect. It was then that the maximum penalty for each of these offences were increased from a fine of five hundred dollars to five thousand (5000) penalty units^[4]. You would note that the increase was done ten times more than the initial amount. Such increase should speak volumes about the views shared in this regard, by our legislators.
4. The facts of this case is already known to parties, hence, I will not cover them in detail. Before the facts were tendered, I was informed that you have both agreed to its contents, hence, I then entered conviction on your part.
5. The offences at hand, are not the first of their kind, I have already dealt with a good number of cases in this regard, and with that, I can say that the courts have already shown their level of tolerance, when it comes to the offending’s at hand. Our traffic laws have been in existence for sometimes now, I do not expect people to say that they are not aware of any laws that prohibits the act of using unlicensed motor vehicles on our roads. As part of the court’s effort to address the offending’s at hand, hefty penalties have been imposed. This was done with the intention to send out a message of general deterrence to the public, however, there seems to be a very low level of reception on the part of the public.
6. In his mitigating submissions yesterday, your legal representative had explained the reasons that led to your respective offending’s. In your case Mr Afulia, I was told that at the time of your arrest, your driving licence was still valid. The only wrong, on your part, is, driving the vehicle which was without a valid licence. I was also asked to consider the fact that you are a first time offender. Further to that, I was informed that you are a single father, who is the sole bread winner to seven children, four of which are in high school while the other three are still in primary school. I am also told that all these children are currently staying with you.
7. It would be a bonus on your part, had Mr Taedi given me an actual proof that you are the only one providing for these children, in terms of school fees or anything that might be of assistance to you in this regard. This may include school fee receipts or school uniform receipts. The court is a statute of law, and with such, it can only accept arguments that are made in support of primary or circumstantial evidence.
8. As for you Mr Oto, I was told that your son was sick, during the period leading to your arrest. It was due to the child’s illness that you were forced to commit the offence you were charged for. However, I was not told as to how sever the illness was, or if the child in question had been admitted at the hospital and was only hanging on a thin thread between life and death. You knew very well that what you allowed was against the law, but you proceeded anyway.
9. It would have been helpful on your part, had your legal representative submitted on the actual the threat that would affect your sick child’s life, if you did not do what you did. As Melanesians, I am sure the spirit of giving is present within all our families. Had you really respected the rule of law, then I am sure, you would have sought assistance from your friends and family, to assist during your child’s critical moments. While I applaud the concerns you showed as a father, I would like to remind you, that there are laws put in place for us to comply with.
10. Facts shows that the vehicle licence had expired on the 31^st of March 2020^[5]. In the same facts, I saw that the offending occurred on the 21^st of March 2020^[6]. The charge on the other hand states that the offending occurred on the 21^st of April^[7]. I must remind both the Prosecution and Defence Counsel, that if this is a typo on their part, then they cannot afford to be careless in the work that they do. If this was an error, then they should have checked the facts properly before having it tendered to me. At this stage, I cannot infer or adduce evidence from common sense, since I am not here to apply common sense, but rather to see that all elements of an offence are fulfilled and that the rules pertaining to how this court runs, are met. It is not for me to infer that Prosecutions and Defence Counsel were intending to say the 21^st of April, as reflected in the charge.
11. The issue raised in paragraph 10, will not be taken lightly by this court, and calls for urgent actions to be done on the carelessness, on the part of lawyers and Police Prosecutors. It is with this that I hereby vacate the guilty pleas entered by both Defendants and hereby entered not guilty pleas.
12. Since the facts tendered were agreed upon, I now order that the Defendants be acquitted forthwith.
13. Right of appeal applies.

Dated this 26^th day of June 2020.

___________

THE COURT

EMILY Z VAGIBULE-MAGISTRATE

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^[1] Section 7 (1) of the Road Transport Act
^[2] Section 20 (2) of the Road and Transport Act
^[3] Section 20 (4) of the Road and Transport Act
^[4] Penalties and Miscellaneous Amendment Act 2009
^[5] Agreed facts tendered on the 25^th of June 2020
^[6] Above n5
^[7] Charge sheet