Regina v Ofiasia [2020] SBMC 26; Criminal Case 581 of 2020 (15 July 2020)

IN THE CENTRAL MAGISTRATE’S COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 581 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: MICHAEL OFIASIA

Prosecutions: Ms F Hiroshachi

Defence: Appeared in person

Date of sentencing: 14^th of July 2020

Date of sentence: 15^th of July 2020

SENTENCE

1. Mr Michael Ofasia, you have been convicted for one count of presence of alcohol in a person’s blood, which is contrary to section 43A (1) (a) of the Road Transport Act, Cap 131 (As amended by the Police and Transport legislation) (Amendment) (Alcohol Testing) Act 2016. Further to that, you are also convicted for one count of driving unlicensed motor vehicle, contrary to section 7 (1) of the Road Transport Act.

Maximum penalty

2. Following the recent amendments done to the existing maximum penalties for the offences at hand, you would note that the maximum penalty for the offence stipulated under count one, is, 10,000 penalty units or twelve months imprisonment or both^[1]. As for the offences of driving unlicensed motor vehicles, the maximum penalty is, 5000 penalty units or six months imprisonment or both^[2].
3. It might be correct to say, that when our legislators agreed to pass these maximum penalties, they were intending to obviate, or to stop the general public from engaging in such unlawfulness. Like I always accentuate in my sentences, our laws are made for a reason. I cannot even begin to imagine how life would be, if there were to be no laws put in place to regulate how we conduct ourselves on a daily basis. Crimes would be committed every day, and we would not be in a position to tell when something is good or bad.
4. Based on my analysis on the section pertinent to count one, I strongly believe that it reflects the collective concerns raised by our legislators to prevent any imminent risk to the loss of lives, or the risk of causing damages that would be repairable at both the government’s expense or at an individual’s expense. Apropos to count two, one should read between the lines to see how it tests a person’s ability of being honest and fair. This view can be mentioned in the same breath as the test of time or the test in any given circumstance.

Salient facts

5. The facts pertinent to this case, premises on what occurred on the 2^nd of May 2020. On this said date, you were driving a vehicle that bears the registration number: MC-0702, and was further described as a Grey Bounty. The time was between 23:13 hours (11:13pm) and 23:34 hours (11:34pm), when you were driving along the Mendana Avenue Road, specifically in front of the Central Police Station. At that same time, the police officers from Kukum traffic were also mounting a random breath test operation. Vehicles were then diverted to the check bay, and as for you, your vehicle was diverted by one of the officers, who facts referred to as, Police Constable Medeo.
6. A breath test was then conducted on you, of which the result showed a reading of 0.163%. A second test was carried out that indicated a reading of 0.175%. Following this, further investigations were carried out on you, and from these investigations, it was found that the vehicle license of the vehicle you were using, had already expired on the 29^th of February 2020. You were then cautioned and charged for the offences outlined above.

Presence of alcohol in a person’s blood

7. The offence of presence of alcohol in a person’s blood, is one that has sparked so much concern throughout the country. However, regardless of the concerns shared by both the public, police and the courts, it seems to be skyrocketing uncontrollably. Most drivers tend to think that with their level of experience in driving, they can handle any given circumstance whilst travelling on the road. What they fail to acknowledge is that accidents happen at any time through the least expected way. With a reading as high as yours, and as someone who has a fair understanding of what alcohol is capable of doing to the human body and mind, it will be safe to say, that you were in a vulnerable state. Moreover, you have placed your own life at risk, as well as other road users who were or may have been present along the Mendana Avenue Road at that time.
8. Drivers should acknowledge that when their state of mind is contaminated with alcohol, they would not be in the position to handle any unforseen accident in the way they would when alcohol is not involved. This was the view taken in the case of Cheffers v R, Ward CJ, as he was then, highlighted the following:

ign="center">&>“Driving whilst under the influence of liquor is extremely serious offence. Anyone who drives in such a state has deliberately than ase of action that puts his own and far more seriously, othe other people's lives at risk. However carefully he may attempt to drive, his reactions if confronted with an emergency will not be as effective as when he has taken no alcohol^[3]”.

9. According to the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016, prescribed level means “a concentration of 50milligrams or more of alcohol in 100 millilitres of blood (0.05%)^[4]”. In this case, both your readings, are far beyond the prescribed level prescribed by the law in dispute.
10. I fail to understand, why many drivers are still engaging in such unwitting behaviour as this, despite knowing the risks involved. Already there have been so many road accidents involving alcohol, which have led to the premature loss of innocent lives. From your explanations’ in court, I do not see an urgent need as to why you should be driving the vehicle at the said time, having known that you should not be driving. Further to that, the vehicle you drove has been without a valid driving license for over two months. The actions you did can be best described as total ignorance of the law and a classic example of the NO CARE ATTITUDE that a handful of us Solomon Islanders, are infested with. It is sad to see that someone your age is involved in such unacceptable behaviour, like I usually remind previous offenders, our younger generation will always look up to us, hence if this is the example we will imprint in their minds, then we are contributing to shape a chaotic and lawless Solomon Islands.

Driving unlicensed motor vehicle

11. In light of driving unlicensed motor vehicles, I wish to re emphasis on the views I raised earlier with regards to honesty and fairness. First and foremost, I know that there are men and women who have always maintained their honesty to ensure that all legal requirements relating to their vehicles are complied with. Secondly, and as correctly stated by you in your explanations right before I entered your conviction, the corona virus has impacted us all. While this country is yet to record its first case, I do not understand why you would want to use this situation as an excuse. Your vehicle license had been expired for over two months, in fact, it had expired a month before the State of Emergency was first declared by the Governor General, in March of this year. You also said that it has been faced with mechanical problems. What I fail to understand is how that would help you in defending the fact that you were driving it along the Mendana Avenue Road, towards midnight, after attending a party.
12. While the corona virus has had a ripple effect on many of us, it does not change your responsibility to ensure that requirements such as validating a vehicle license is complied with. If you knew you would not be in a financially stable position to comply with this requirement, then you should have done what a fully grown person like you should do, that is, to leave the vehicle at home. Instead, you drove the vehicle whilst under the influence of alcohol and now you are asking me to consider your financial constraints.
13. In my humble view, none of these would have happened if you did the right thing at the first place. This court will not entertain such dishonesty as displayed on your part and will not be taking any excuses relating to the so called corona.

Comparative sentences

14. In terms of the sentencing submission filed and tendered by prosecutions, there were no case authorities used, hence upon my enquiries, I was directed to the case of Menapiki which Prosecutions said was just a recent case. I acknowledge that this case was not given to me with a proper citation, nor were there any proper details pertaining to this case. Upon my personal search on JIMS, I came across two cases bearing the same name that have been dealt with and completed back in 2015.
15. Since I am not properly assisted in this regard, I do not see why I should be doing what is expected of prosecutions. Regardless of this, I still acknowledge the importance of comparative sentences and wish to highlight the case of In Sau v R [1982]^[5], where Daly CJ, as he was then, commented as follows:

&>“I must add one further observation on the sentencing process and on appeals against sentence. There is an increasing practi reference being made to specific previous cases in court. urt. This was done by the learned magistrate in this case and the dissimilarities give counsel a ready – made ground for argument which they understandably take. Sentencing is not an exact mathematical process; if it were it could be done by a computer. The human element both in the person before the court and the sentencer remain a vital part of the process. Previous sentences demonstrate principles or parameters of sentence; but they should not be used as binding precedents to reach a sentence in a particular case. All the judiciary have access to each other’s sentences and we must rely upon the good sense and experience of the judiciary to reach sentences which reflect not only their own views but also the views of the community.' (Emphasis added^[6]”.

16. Further to the case highlighted above, I would also like to make reference to the case of R v Ben Tugale, Brown Beu, Nelson Oma, James Sala, Loius Lipa, Charles Meaio & John Teti^[7], where the following were uttered by Lungole – Awich J, as he was then:

&>“Punishment in one case usually cannot be matched exactly with punishment in another. Circumstances usually differ even if only in details. Public view about how serious an offence is regarded also changes. Prevalence or otherwise of an offence during particular period also counts^[8]”.

17. In light of the second case, I would say that while there is so much concern coming from the general public for the offences at hand, especially that of alcohol, the same general public is also doing less to minimize the forever soaring rate of these offending’s. The court has already showed its level of tolerance apropos to the offending’s at hand, and I am sure awareness’s have been given out through all possible means of communication by the police. Still on the sentiments uttered by His Lordship, Lungole-Awich, J, as he was then, I also acknowledge how each case must be dealt with according to its own set of facts and circumstances. To compare what has been passed in a previous case, would be the equivalent of working under imperfect guidance^[9]. This was the same view taken in the sentence delivered in the case of Sahu v Regina^[10].
18. With this, it will only be in the interest of justice if this case is dealt with based on its own facts and circumstances. With this, I will draw due consideration to the following factors:

Mitigating factors

• Your early guilty plea, which has saved the courts time from proceeding into a trial;
• The fact that you are a first time offender;
• Your remorse as conveyed by yourself and as reflected from your guilty plea;
• The fact that you have waived your right to be legally represented;
• The contributions you have rendered to this country as a whole through your services as a taxi driver; and
• Your personal circumstances which is inclusive of your financial constraints and family obligations

Aggravating factors

• The seriousness of both offending’s as reflected through their maximum penalties;
• Your level of culpability, which is significantly based on you deliberate decision to engage in the offences at hand, and as a result lads you a little over the mid-range of the seriousness involved;
• The time of the offending’s; and
• The involvement of alcohol.

Sentencing principles

19. Over the years, our courts have developed ideas and notions to safeguard the process of sentencing. This may be referred to as the fundamental or basic principles to sentencing. In the case of R v Timothy Sulega^[11] , the court, at page 2 commented that:

'The Police are doing their part in arresting, charging and bringing such offenders to court, the public are crying out for tougher penalties, the courts however must continue to maintain a balanced approach, and that includes balancing the sentence to be imposed^[12].' (Emphasis added)

20. Similar sentiments were also made in the case of Johnson Tariani v R^[13] when the court uttered that:

'>'Where the law simply provides a maximum sentence, the Courts are given a very wide discretion to determine the appropriate penalty in each case courts have developed principles of sentence which guide tide the exercise of this discretion. The Courts have developed theories of sentence which may be described as deterrence, separation, rehabilitation and retribution. I have described these theories in the Papua New Guinea case of Acting Public Prosecutor v Uname Aumane & other [1980] PNGLR 510 at 537 – 538. At p. 538, I said:-

"The agonizing task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved if he chooses one theory of sentencing he is likely to frustrate the other theories. In some cases, a judge will need to give a balanced consideration to all theories of sentencing. In others, a judge will want to emphasise or achieve one theory of sentencing more than the other in certain classes of offences^[14]."

21. Hence, with the factors involved and the circumstances surrounding this offending, I will ensure that the sentence I must impose on you, is one that strongly conveys the court’s position in this regard, and the need to teach both the general public and yourself the legal consequences that will entail following a conviction in this regard.
22. With this, I believe the most appropriate sentence I should impose on you, is one of a fine.
23. For count one, I will consider a starting point of 5000, 1700 is reduced to reflect the early guilty plea, and an additional 2000 is further reduced to reflect the remaining mitigating factors. This bring us to the sum of 1300, and having added the sum of 2000 to reflect the aggravating features identified, we reach the sum of 3300.
24. For count two, I will consider a starting point of 1000, I reduce 300 for your early guilty plea and an additional 400 for the rest of the mitigating factors. This brings us to 300, I then add the sum of 800 for the aggravating factors involved leading us to the sum of 1100.
25. With this basic calculation, I now order that you be sentenced as follows:

ORDER

(i) For count 1, a fine of 3300.00;

Four count 2, a fine of 1100.00

(ii) A total fine of SBD$ 4400.00, which is due by the 31^st of August 2020;
(iii) In default of payment six months imprisonment; and
(iv) Right of appeal applies.

Dated this 15^th day of July 2020.

______________

THE COURT

Emily Z Vagibule- Magistrate

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^[1] 43 A (1) (b) (i) Police and Transport legislation) (Amendment) (Alcohol Testing) Act 2016
^[2] Penalties and Miscellaneous Amendment Act 2009

^[3] (Unrep. Criminal Case No. 11 of 1989)
^[4] 111 A of the Police and Transport legislation) (Amendment) (Alcohol Testing) Act 2016
^[5] [1982] SILR 65

^[6] At page 69 of [1982] SILR 65
^[7] (Unrep. Criminal Case No. 12 of 1997)

^[8] At page 21 of (Unrep. Criminal Case No. 12 of 1997)
^[9] At paragraph 6 of [2012] SBHC 122; HCSI-CRC 504 OF 2011 (3 October 2012)
^[10] [2012] SBHC 122; HCSI-CRC 504 OF 2011 (3 October 2012)
^[11] (Unrep. Criminal Review Case No. 113 of 1999)

^[12] At page 2 of (Unrep. Criminal Review Case No. 113 of 1999)
^[13] [1988 – 89] SILR 7

^[14] Pages 12-13 of [1988 – 89] SILR 7