Regina v Oso [2020] SBMC 32; Criminal Case 583 of 2020 (21 August 2020)

IN THE CENTRAL MAGISTRATE’S COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 583 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: JACK OSO

Abel Maelanga for Prosecutions

Emy Rusi for Defence

Date of sentencing and mitigating submissions: 18^th of August 2020

Date of sentence: 21^st of August 2020

SENTENCE

1. Mr Jack Oso, you pleaded guilty to one count of careless and inconsiderate driving, contrary to section 40 (1) of the Road Transport Act, and one count of duty to stop and report, contrary to section 63 (1) (b) of the Road Transport Act.
2. These offences occurred in February 2020, and it took almost 3 ½ months for the officers at Kukum Traffic Centre to initiate the charge against you. I recently dealt with two of your cases, both of which I ordered you to pay fines. According to my records and the date in which the charge in this regard was formally laid against you, I note that one of your recent cases, pertains to an incident that occurred on the 19^th of May. You would note that this was after the incident relating to the case at hand. Given how messed up the history of investigations was I then summoned one Joel Donia to come and explain for the delay in having the matter brought to court as soon as possible.
3. Joel Donia was summoned based on the update given by Police Constable Abel Maelanga that he was one of the first investigators that dealt with the matter. The matter was then passed on to other investigators until a formal charge was made. On the 24^th of July, Donia clarified that he worked on the case during the initial stages, but later handed the matter over to one Walter Kola, who is the officer in charge. I asked why the matter took too long and his explanation was that cases involving careless driving would take time to investigate. The maximum duration of gathering evidence is usually around six months.
4. I then asked him his views in relation to unreasonably dragging cases, bearing in mind that the alternative maximum penalty for the offence of careless driving is six months imprisonment. Hence, if cases are to be dragged without a good cause, then there is a clear breach to section 10 (1) of the Constitution of this country. Time and again, this court has been reminding officers directly involved with cases, to always ensure that their actions are aligned to the mandatory requirements specified in our existing laws. An example would be the provisions under the Bill of Rights, which are enshrined under Chapter II of the Constitution. This court will not tolerate such actions and will always ensure that those directly involved in dragging cases be held accountable.

Facts

5. According to the facts tendered by Police, you were driving a dark blue Toyota Corolla that bears the registration number: MA-2027. At the material time, you were driving along the Kola Ridge Road. It was at the Kola Ridge Road junction that the incident occurred. You were said to have hit a Toyota Hiace bus that bears the registration number MA-1690. According to the facts, this bus was travelling in front of you. After hitting the bus, you failed to report the accident, hence you were charged some 3 ½ months later for the offence of careless and inconsiderate driving and duty to stop and report.
6. I then gave you the opportunity to explain your side of the story. According to you, the bus was travelling behind you. Upon reaching the Kola Ridge junction, you then intended to drive on to the easterly bound lane to travel towards the east of Honiara. With that intention in mind, you then caused your signal indicator to show the others that you will be travelling east. However, when you way still at the waiting bay, you then changed your mind and decided to travel back towards the Westley direction. It was when you changed your signal indicator and was turning towards the westerly direction, that you came to hit the bus. The bus, having seen your previous signal indicator, drove past you and was making its way to the main road, when you hit its rear.
7. You parked further down the road and came to the driver of the bus, purposely to apologise for what had happened, before driving off again. In terms of the damages, prosecutions did not provide this court with any further details pertaining to the impact of the damages sustained by both vehicles. I do not know how they plan on convincing this court in terms of the damages that were said to have sustained and the type of sentence this court should impose. Coming to court with all relevant details pertaining to the prosecution case, is something that is still lacking on their part and I hope they do something about it.

Count 1: Careless and inconsiderate driving

8. The offence of careless and inconsiderate driving as stated earlier, is contrary to section 40 (1) of the Road Transport Act. It sates, and I quote:

“If a person drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road, he shall be guilty of an offence and liable to a fine of five hundred dollars or to imprisonment for six months, and in the case of a second or subsequent conviction to a fine of seven hundred dollars or to imprisonment for six months or to both such fine and such imprisonment^[1]”.

9. Previously, the maximum penalty was a fine of $500 or six months imprisonment or both. In 2009, there was a significant increase from the amount of $500 to $5000^[2]. The alternative penalty of six months still remains the same. With an increase as drastic as the one at hand, it can only reflect the level of seriousness involved. This was also highlighted at paragraph 19 of the case of Regina v Kemakeza, where His Lordship, Sir Albert Palmer, CJ, 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^[3]”.

10. Time and again, I have reminded drivers of the need to take their responsibility as vehicle drivers with due care and diligence. Like I usually say in most of my sentences, this case is not the first of its kind. I have seen a very good number of cases relating to this offence in my weekly court list. Something needs to be done to protect the public from becoming victims to the ignorant and selfish actions of careless drivers. This view is made in reference to the comments uttered in the case of R v Don Rector Nonga at paragraph 10^[4], by Muria CJ, as he was then.
11. When you still have the opportunity to avoid any severe road accidents, I advise that you take it seriously. While it might be true that people come to learn at certain points in life, or through certain experiences, I do not see why one would want to do something, having seen the consequences someone else is suffering from, after doing the same actions they are doing or, intending to do. I say this from the perspective of complying with our existing laws, more specifically to the need to be responsible vehicle drivers.

Duty to stop and report

12. In most instances, when accidents occur, drivers tend to escape the scene. This makes things more complicated. From the explanations made on your part, I take that you are not well informed of what is expected of you, in this regard. section 63 (1) (b) states:

(1) If, in any case, owing to the presence of a motor vehicle on a road, an accident occurs whereby injury or damage is caused to any person, vehicle, or animal, the driver of the motor vehicle shall^[5]—

(b) If he has reasonable cause to believe that the safety of his person, passengers or vehicle would be endangered by so stopping, proceed forthwith to the nearest police station and there make a report of the accident and of his reasons for not stopping^[6].

13. You did tell me that you went and apologised to the driver of the bus. However, it would have been proper had you accompanied the driver of the bus to report the accident.
14. This then re-surfaces my question as to why it took the matter quite some time before coming to court. Donia never told me about the exact reason as to why the matter was not filed until some 3 ½ months later. There was no vehicle inspection report provided, further to that, they have all the resources they can use to locate you. Had the investigators pulled up their socks then investigations could have already been completed within good time and the case would have already been disposed of.
15. This offence carries a maximum penalty of 3000 penalty units^[7] or six months imprisonment or both. With a penalty like this, for such an omission, one should be able to assess how serious it is to overlook the need to stop and report an accident. Overall, it goes back to the need to take all responsible steps in ensuring that your manner of driving will not pose any imminent threat to the lives of people. Once you mitigate the risk of causing any accident, then the offence of duty to stop and report will not surface.

Sentencing theories

16. In the sentencing stage, the court is tasked to consider some, if not, all the sentencing theories that are relevant to any given case. At this juncture, I will now refer to the case of R v Ball (1951) 35 CrAppR 164 where, Hilbery J, in his judgment of the Court of Criminal Appeal, commented at pages 165 - 166:

“In deciding the appropriate sentence a Court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living' as referred to in Anna Langley v R (supra)^[8]”.

17. To achieve the views raised in the comments above, the court must ensure that in imposing sentences, it should not only pass a sentence for the sake of doing so, but it must impose one that has teeth, or in other words, one that causes the offender to turn away from his or her wrongful patterns of behaviour. In this regard, the courts have always ensured that messages of both specific and general deterrence are sent out. Further to that, is the need for prevention, rehabilitation and retribution.

Comparative Sentences

18. In their sentencing and mitigating submissions, both Prosecutions and Defence Counsel, have referred to cases to support their line of argument. I appreciate the step taken by both Mr Maelanga and Ms Rusi in providing these cases, which will no doubt assist in minimizing objectionable disparity.
19. On the other hand, and as highlighted by Principal Magistrate Augustine Aulanga in the case of Regina v Ramosala^[9], with reference to the case of Sahu v Regina:

“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^[10]”.

20. This would make more sense when one refers to the case of Joel Likilia and Allen Kokolabu v Regina, where the court stated:

“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)^[11]”.

While this court may have dealt with so many cases that relate to careless driving, as well as duty to stop and report, it must always ensure that each case is dealt with, based on its own set of facts and circumstances. This it will do, by paying close attention to the facts provided by Police, facts given by the Accused and the need to protect the public, and the need to advocate to the public as to the legal consequences they will face once laws are bent.

Conclusion

21. In terms of sentence, I will ensure that whatever sentence I impose, is one that is proportionate to the nature of both offending’s. With regards to the count of careless driving and inconsiderate driving, I stand to concur with Ward, CJ, as he was then, when he highlighted the following sentiments in the case of Votaia v Regina:

“The level of sentence must relate to the nature and manner of the driving itself. It is not unusual for a minor lapse by a driver to have very serious effects but, if the lapse was simply a lack of due care and attention, it remains careless^[12]”.

22. With these remarks, and the need to maintain the court’s position in this regard, I will conclude by highlighting some of the factors I have considered, to determine the outcome of your sentence.

Mitigating factors

• Early guilty plea;
• Remorse;
• Cooperation; and
• Personal circumstances.

Aggravating factors

• Serious generally;
• Level of culpability which I find a little over the mid-range of the seriousness involved. While I understand that you now have a previous conviction, I will be drawing more consideration towards your level of culpability. I believe this matter could have already been dealt with before the matters rendering your previous conviction. It is about time that the slackness and unreasonable delays on the part of investigators be addressed.

23. Hence having assessed the entirety of this matter, most importantly, the need for specific and general deterrence, prevention, rehabilitation and retribution, I am of the view that the appropriate sentence to impose is that of a fine. By imposing a fine, you will be held responsible for your own actions.
24. With that, I will be considering the following ranges and starting points for both counts.

Count 1- Range: 1000 to 4000; starting point: 3500.

Deduct 1/3 of 3500 for early guilty plea. Further deduction of 1500 for remaining mitigating factors=800.

500 is added to reflect aggravating factors=1300.

Count 2-range: 500 to 2000, starting point: 1000. Deduct 1/3 of 1000. Further deduction of 400 for the remaining mitigating factors=300

500 added to reflect aggravating factors=800

25. It is with this basic calculations that I now order you to pay the following fines:

ORDER

(I) Count 1, a fine of SBD$1300 due by the 30^th of September 2020. In default of payment, 3 months’ imprisonment;
(II) Count 2, a fine of SBD$800, due by the 30^th of September 2020. In default of payment, 40 days imprisonment.
(III) Total fine of SBD$2100, due by the 30^th of September 2020. In total default, 3 months and 40 days imprisonment.
(IV) Right of appeal applies.

Dated this 21^st day of August 2020.

______________

THE COURT

Emily Z Vagibule

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^[1] Section 40 (10 of the Road Transport Act
^[2] Penalties and Miscellaneous Amendment Act 2009

^[3] [2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008)
^[4] (Unrep. Criminal Appeal Case No. 32 of 1996

^[5] Section 63 (1) of the Road Transport Act

^[6] Section 63 (1) (b) of the Road Transport Act
^[7] Above n 2

^[8] 1951) 35 CrAppR 164
^[9] CMC-CRC NO: 1297 OF 2015 & 27 OF 2016

^[10] (Unrep. Criminal Appeal Case No. 32 of 1996)

^[11] [1998/89] SILR

^[12] (Unrep. Criminal Appeal Case No. 14 of 1991)