R v Funusulia [2020] SBMC 28; Criminal Case 544 of 2020 (28 July 2020)

IN THE CENTRAL MAGISTRATE’S COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 544 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: BRYAN FUNUSULIA

Mr Ephraim Pitasua for Prosecutions

Ms Susie Pengalo for Defence

Date of sentencing and mitigating submissions: 27^th of July 2020

Date of sentence: 28^th of July 2020

SENTENCE

1. Mr Bryan Funusulia, you entered guilty pleas for one count of careless driving, one count of presence of alcohol in a person’s blood, one count of vehicles to be licensed and one count of driver’s to be licensed. Conviction was then entered after you agreed to the set of facts tendered by prosecutions and your legal representative.

Agreed facts

2. The facts surrounding these offending’s can be summarised as follows:

On the 3^rd of May 2020, between 14:00 hours and 14:30 hours, you were driving a white Toyota bus, which bears the registration number: MB-9769. You were travelling along the westerly direction in front of the Wesley United Church^[1]. As you were driving, you then veered of the road and climbed onto the median island and ended up hitting the blockage rail^[2].

Following the incident, you were transported to the Central Police station watch-house and later to the Kukum Police station. At the Kukum Police station, two breath analysis tests were carried out on you. The first result showed a reading of 0.101%, followed by a reading of 0.087%.

Upon further investigations, it was found that the vehicle license had expired on the 31^st of December 2019. Further to that, your vehicle license had long expired, since the 24^th of March 2016. You were then cautioned and charged with the offences outlined earlier^[3].

Maximum penalty

3. The maximum penalties for each of these offences can be found under the Road Transport Act, the Police and Transport Legislation (amendment) Alcohol Testing and the Penalties and Miscellaneous Amendment Act 2009. For purposes of this sentence, I will outline the maximum penalties as follows:
   1. Careless driving- 5000 penalty units^[4] or six months imprisonment or both^[5];
   2. Presence of alcohol in a person’s blood- 10000 penalty units^[6] or 12 months imprisonment or both^[7];
   100. Vehicle to be licensed- 5000 penalty units^[8] or six months imprisonment or both^[9]; and
   4. Driver’s to be licensed- 5000 penalty units or six months^[10] imprisonment or both^[11].
4. These maximum penalties alone should speak volumes about the collective views, shared by our legislators, when it comes to the seriousness of these offences. As highlighted by Sir Albert, R Palmer, CJ, at paragraph 19 of Regina v Kemazeka^[12], the seriousness of an offence, is reflected through the maximum penalties imposed by the law. In his own words, the following were stated;

The level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed. For instance, the offence of murder is regarded as a very serious offence and so carries a penalty of mandatory life imprisonment on conviction^[13].

Analysis

5. In light of the facts tendered, I am not properly informed as to whether the accident was directly related to the level of alcohol present in your blood, or not. I am also not informed, whether you were transporting people, either on a private or public run. In fact, your side of the story was not fully disclosed to the court. Prosecution needs to be reminded, that the onus is upon you, to fully assist the court, by way of providing all the relevant facts supporting the charge against any individual. This, in my view, would mean, providing all the relevant angles even if it would not be in support of your case.
6. The court can only reach an appropriate sentence, after carefully considering all the factors and circumstances involved. The continuous habit of coming to court with half cooked submissions, should be put to a stop and urgent actions be taken to uplift the level and quality of submissions.
7. For purposes of this sentence, I see fit that each count be addressed separately.

Careless driving

8. The offence of careless driving has and is been committed on a prevalent basis. From the facts tendered, I note that you veered off the road and ended up hitting the blockage rail, in the median island in front of the Wesley United Church. Apart from the fact that you had hit the said blockage rail, there was nothing further to explain how you ended up the way you did.
9. Having identified the maximum penalty for this offending earlier, it can only be correct to say that the level of seriousness pertaining to this offending, is quite serious in terms of the Road Transport Act. At paragraph 6 of his ruling, His Worship, Principal Magistrate Augustine Aulanga, highlighted the following, in the case of Regina v Rae^[14]:

“Careless driving is a serious traffic offence because of the consequence that can flow from an accident. That is why its maximum penalty was increased in 2009. This increase indicated the definite need to discourage careless driving taking incount the number ober of vehicle users in our country at present. I have observed that this offence is prevalent in Honiara and Guadalcanal taking into account the increase number of vehicles r town. The endless streamsreams of cases kept flooding this Court might mean the Court is too lenient with its punishment or lack of community awareness for the need to drive carefully or might be because of public ignorance of the ongoing awareness by enforcement authorities and the deterrent messages sent by the Court in past occasions. The failure must fall in one of those avenues^[15]”.

10. This court, in its endeavours to deter and prevent the public from engaging in this regard, has been imposing hefty penalties on offenders that have been previously convicted. Regardless of this, the public is less receptive and as a result, the court continues to preside over a good number of such cases every week.
11. The sentencing tariffs imposed by the court on previous occasions in light of this offending, ranges from $1000 to $4000. The fact that this offence continues to surge will not prevent this court from carrying out what is expected of it. As a Magistrate who has seen a good number of careless driving cases, I must ensure that the general public is protected from the negative consequences that flows from this offending. It was rather fortunate that no lives were lost, including yours. I do not understand why it is so hard for some drivers to understand the responsibility they owe towards all road users. I believe you are well aware of the numerous road accidents that have claimed so many innocent lives. While there is limited information for me to assess the cause and impact of what was particularised under the count of careless driving, it would not change the fact that an accident had occurred.
12. Clearly lives were put at risk and damages were incurred. On that note, there was nothing to suggest that repairs, if any, to the blockage rail were met from your own pocket. In my view, the road in which you were travelling along, is one that falls under the definition outlined under section 2 and section 7 (2) of the Road transport Act. Section 2 defines “road” as a public road accessed by the public^[16]. Section 7 (2) goes on further to highlight any road in this regard, as one that is repairable by the Government or any Local Authority^[17]. Given the location of the accident, it would be correct to say that the blockage rail you ended up hitting, is situated on a road repairable at the government’s expense. In other words, repairable at the expense of tax payers.

Presence of alcohol in a person’s blood

13. In light of the count of presence of alcohol in a person’s blood, I wish to highlight Part 4 A of the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016, specifically 111 A, which states that “prescribed level” means a concentration of 50milligrams or more of alcohol in 100 millilitres of blood (0.05%)^[18]”. As per the agreed facts, the readings resulting from the breath test conducted on you showed a percentage of 0.101 and 0.087^[19].
14. I do not think that you are not aware of the fact that driving whilst there is presence of alcohol in your blood, is an offence. As put by your legal representative, at paragraph 7 of her submissions, you have been a law abiding citizen for the past 40 years of your life. If that is true, then you should have not engaged in what you did. I fail to see the urgency that forced you to drive the said vehicle, knowing that you should not be driving under such circumstances. At this stage, I will refer to the case of Cheffers v Regina where the court uttered the following sentiments:

“Driving whilst under the influence of liquor is an extremely serious offence. Anyone who drives in such a state has deliberately than a course of action that puts his own and far more seriously, 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^[20].

15. With the above sentiments in mind and the fact, it would be correct to say that you have risked so many lives, including yourself. The road in question, is located in an area within Honiara that is accessed by so many people and vehicles. Regardless of this, you made a deliberate decision to drive a vehicle and turned a blind eye on any possible risks that you might pose at that time.

Vehicles to be licensed

16. In terms of this offending, facts clearly showed that the vehicle license of the vehicle you were driving, had already expired on the 31^st of December 2019^[21]. This would mean that from the expiry date to the day you were arrested, would be well over two (2) months. While I understand that the vehicle does not belong to you, you made the deliberate decision to drive it on the road. The seriousness of this offence, in light of the Road Transport Act, can be seen through the maximum penalty itself.

Drivers to be licensed

17. As for the offences of drivers to be licensed, or driving without a valid driver’s license, you knew very well that your license had long expired, since the 24^th of March 2016^[22]. This is well over three (3) years. I do not know what may have forced you to drive the said vehicle, knowing very well that you have not renewed your driving license since the 24^th of March 2016. This reflects the ignorant and arrogant person you are. Please bear in mind that there are others who are also trying their best amidst the financial constraints they are faced with, to maintain the validity of their driving licenses. Your actions clearly illustrates pure dishonesty and no-care attitude towards the law.

Sentencing principles

18. When it comes to passing sentences, the court is tasked with a huge responsibility to always ensure that each case is dealt with, on its own set of facts and circumstances. Furthermore, the court must also evaluate on the existing sentencing theories that have been developed throughout the years. These theories include deterrence, prevention, rehabilitation, retribution and the public interest.
19. In both submissions, I have noted the use of case authorities, which I believe comes handy when it comes to minimizing objectionable disparity. However, and as I have already emphasised on, each case is drawn from its own sets of facts and circumstances. It would be unfair if the court is to impose the same punishment applied in a particular case, to the one at hand, simply because they involve the same offences. There are no fixed mathematical formulas that are binding in the sentencing process. On this same juncture, I must also highlight how the court will only maximum any given penalty in the most serious occurrences of the offending’s at hand. While the circumstances surrounding counts one and two, might not warrant imposing the maximum, it will still warrant imposing a strong message of specific deterrence to you. As for counts three and four, I am of the view that the level of seriousness involved, has no doubt exceled.
20. I have also considered the mitigating and aggravating factors involved. In terms of the mitigating factor pleaded under paragraph 15 of your submissions, there is not much said about how and where your income is derived from, except for the fact that you are the sole bread winner for your family. With the level of culpability apropos to count four, I am of the view that section 29 (2) of the Road Transport Act be considered, which pertains to the disqualification on conviction, for a period the court thinks feed.
21. While I understand from the agreed facts, that your driving license had expired back in 2016, section 29 (8) of the Road Transport Act defines the word “disqualified” as disqualified for holding or obtaining^[23] a licence to drive a motor vehicle. The fact that you have been so dishonest, gives me all the more reason to consider disqualifying you from obtaining a driving license as described under section 29 (8) of the Road Transport Act.

Conclusion

22. Hence, having assessed the entirety of this matter, inclusive of the mitigating and aggravating factors, and the need for both specific and general deterrence, rehabilitation, retribution, and the public interest, I am of the view that the most appropriate sentence I should impose on you, is one of a fine. In my previous sentences, I have explained my views in terms of regulatory offences such as those at hand. When a sentence of fine is considered in this regard, and when there are more than one offence, the default period for each fine must be served separately, in the event that fines are not completed or paid.
23. With deductions and additions being done to reflect the mitigating and aggravating facts, I now order as follows:

ORDER:

(i) That you are hereby disqualified from obtaining a driving license for a period of 6 months, pursuant to section 29 (2), as read with section 29 (8) of the Road Transport Act;
(ii) For the counts of careless driving which bears the maximum penalty of 5000 penalty units or six months imprisonment, I sentenced you to a fine of $2500;
(iii) For the count of presence of alcohol in a person’s blood, which bears the maximum penalty of 10000 penalty units or 12 months imprisonment, you are sentenced to a fine of $3500;
(iv) For the count of vehicle to be licensed, which bears the maximum penalty of 5000 penalty units or six months imprisonment you are sentenced to a fine of $1300;
(v) For the count of drivers to be licensed, which bears the maximum penalty of 5000 penalty units or six months imprisonment you are sentenced to a fine of $3500.
(vi) A total fine of $10800.00, which is due by the 31^st of August 2020, in default, 12 months’ imprisonment; and
(vii) Right of appeal applies within 14 days from today.

Dated this 28^th day of July 2020.

___________

THE COURT

Emily Z Vagibule

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^[1] Agreed facts filed on 8/7/2020
^[2] Above n 1.
^[3] Above n 1
^[4] Penalties and Miscellaneous Amendment Act 2009
^[5] Section 40 (1) of the Road Transport Act
^[6] Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016
^[7] Above n 6
^[8] Above n 1
^[9] Section 7 (1) of the Road Transport Act
^[10] Above n 1
^[11] Above n 9
^[12] 2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008)

^[13] At paragraph 19 of Above n12
^[14] [2015] SBMC 11; Criminal Case 343 of 2015 (24 November 2015)

^[15] Paragraph 6 of above n 14
^[16] Section 2 of the Road Transport Act
^[17] Section 7 (2) of the Road Transport Act
^[18] Section 111 A of the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016
^[19] Above n 1

^[20] (Unrep. Criminal Case No. 11 of 1989)
^[21] Above n 1
^[22] Above n 1
^[23] Section 29 (8) of the Road Transport Act