R v Paine [2020] SBMC 35; Criminal Case 833 of 2020 (16 September 2020)

IN THE MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 833 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: PETER PAINE

ALEX BARTLETT

Ms Letiara Pellie for the Crown

Accused self-represented

Date of sentencing and mitigation submissions: 15^th of September 2020

Date of sentence: 16^th of September 2020

SENTENCE

Introduction

1. Mr Peter Paina, you are jointly charged with one Alex Bartlett, for offences pertaining to the Road and Transport Act. Mr Bartlett has entered a not guilty plea for the offence he is charged with, hence he is set to appear for a pre-trial conference hearing on the 29^th of September 2020. As for you Mr Paine, I have recorded guilty pleas on your part for the offence of careless and inconsiderate driving, and that of drivers to be licensed.
2. Having heard the brief facts submitted by Ms Pellie, of the Office of the Director of Public Prosecutions, I then gave you the opportunity to give your side of the story. This was to ensure whether or not your plea was unequivocal. Hence, with the explanation given on your part, I then proceeded into entering conviction against you.
3. The offence of careless and inconsiderate driving is contrary to section 40 (1) of the Road Transport Act. section 40 (1) states as follows:

“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].

4. You would note from the wordings of section 40 (1), that the any person found guilty in this regard, is liable to a fine of five hundred dollars or to imprisonment for six months. A second of subsequent conviction, will attract a seven hundred dollars fine or six months imprisonment.
5. With regards to the offence of drivers to be licensed, it is contrary to section 20 (1) of the Road Transport Act. The wordings of this section states as follows:

20-1 “No person shall drive a motor vehicle of any class on a road unless he is the holder of a valid driving licence or a provisional licence endorsed in respect of that class of vehicle”^[2].

Section 20-4 further states: “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].

6. Before the year 2009, the maximum penalty for this offence. in respect of a first time offender, is a fine of two hundred dollars or six months imprisonment. For persons committing this offence for the second time, or subsequent offenders, the fine was that of five hundred dollars or six months imprisonment.

Maximum penalties

7. In 2009, Parliament made significant changes to most of the maximum penalties for most of the offences punishable under the Penal Code, Road Transport Act, Liquor Act, and a handful of other which can be found under the Penalties and Miscellaneous Amendment Act 2009. This was when the maximum penalties for both the offence of careless and inconsiderate driving, and driver’s to be licensed were seen to have gone through a significant increase. Currently, both offences attract maximum penalties of 5000 penalty units, or 6 months imprisonment or both.
8. These offences are some of those under the Road and Transport Act, which are said to be quite serious in nature. It is obvious, that when an offence is dubbed as very serious in nature, the maximum penalty will also be high. In the High Court case of Regina v Kemakeza states that:

“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”^[4].

9. While both these offences do not attract the maximum penalty of life imprisonment, they are deemed as some of the serious offences under the Road Transport Act.

Facts

10. The facts pertaining to the offending’s at hand, are as follows:

On the 25^th of July 2020 at a time between 1258 hours and 1330 hours, you were driving a white Toyota Hilux that bears the registration number: MC-0076. The actual incident occurred in front of the XJ6 shop, opposite of the Central Market, along the Mendana Avenue Road^[5].

Your driver’s license was said to have expired back on the 11^th of August 2015. This would mean, that on the day in question, you were driving without a valid driver’s license. Travelling with you, was Mr Alex Bartlett, who was sitting on the passenger sit. There were three boys sitting at the back tray of the hilux^[6].

The hilux was travelling in the westerly direction, specifically on the outer lane. The traffic was observed to be heavy. It was when you accelerated with the intention to leave the outer lane that you veered off and hit a white Toyota bus, whose registration number is: MC-1630. The White Toyota bus was parked in front of Apple Shop. The bus then jerked off and hit another vehicle, that is, a white Toyota harrier that bears the registration number: MB-9803^[7].

Having hit the white Toyota bus, the vehicle you were driving, continued on and ended up hitting a grey Toyota sprinter (MC-2337), which moved on and hit white caldina (MB-4348), this white caldina then moved on and hit a white Hilux (MA-5534)^[8].

The number of vehicles that became involved in this accident, is a total of six vehicles, including the one you were driving. The damages incurred during the accident were quite massive^[9].

Discussion

11. In relation to the count of careless and inconsiderate driving, the Crown submits that your actions have resulted in damages that involves a large amount of money. In support of this, quotations pertaining to vehicle repair and damages as well as photographs of the damages sustained by each vehicle, were tendered to the court.
12. During the sentencing submissions, Ms Pellie highlighted how the speed you were travelling in, was not appropriate, especially during the given time. Facts did show, that the traffic was heavy at that time. Drivers now a days should acknowledge the need to be very cautious when driving on our public road. I say this with due consideration to the increased number of vehicles we now have on the road. Moreover, drivers should also be cautious of how narrow, our roads are. I note from the facts that the accident occurred at a very busy part of the road. Further to that, it occurred on a time and day that many residents of Honiara would go out for weekend errands.
13. Parties would also agree with me, that given the location of shops within the proximity of the accident, there would be a lot of people present, and there might also be vehicles parked in front of the shops. According to your explanation you did say that the traffic was quite busy on that day. The bus you first hit was intending to drive onto the lane you were travelling on. Unfortunately, you ended up hitting it from behind. You also admitted that you went on and hit the other cars in front of you, after hitting the back of the bus. According to the facts you agreed to, the bus was parked in front of the Apple Shop. From the photograph tendered, I see that the damages sustained were quite serious, since the glass at the back of the bus appears to have fully fallen off. Further to that, the left tail light of the bus was also severely damaged.
14. The damages that followed after, can also be described as serious in nature, given the quotations provided for repair. All these comes back to the need to be mindful of your surroundings, when driving on the road.
15. In terms of the offence relating to driver’s to be licensed, I am sure we would all agree, that had you made the decision not to drive at the first place, on the basis that your driving license had long expired since 2015, all these would not have happened. Clearly, you made an irrational decision, the moment you decided to drive the vehicle from where you were travelling from. From the explanation you gave, you said that you knew your license had long expired, however, and as put in your own words, “me talem Alex but hem forcim me for drivem hilux from KG come down”. This explanation does not in any way change the fact that you acted in contrary to the way a senior citizen like you should have behaved. Obviously, this all started the moment you took on the wheels and drove from KG, as stated by you.
16. The crown has emphasised on the need to protect the public interest from such unlawful actions, which no doubt has a domino effect. This afternoon, I will ensure that whatever sentence I impose, should be one that teaches you a lesson, as well as one that helps you to acknowledge the existence of our laws.
17. In terms of the mitigating and aggravating factors involved, I was able to identify the following:

Mitigating factors

• Your early guilty plea, which has saved the states time and money.
• The fact that you are a first time offender.
• The genuine remorse shown on your part.
• The fact that you have waived your right to be legally represented.
• Your personal circumstances, which includes your unemployment status.

Aggravating factor

• The seriousness generally.
• The level of culpability that you played in these offending’s.
• The damages incurred.

18. This afternoon I will be drawing emphasis, on the need to ensure, that the public interest is protected, and that a message of general deterrence be sent out to all like-minded offenders, that the court will not in any way tolerate such ignorance. Note that I have not emphasised on the need for specific deterrence given your age. Further to this, I will also ensure that sentiments of prevention, rehabilitation and retribution be uttered through the sentence I will be imposing on you this afternoon.
19. In terms of sentence, I am always guided by the need for comparative sentencing and the need to determine cases based on their own set of facts and matrix. In relation to comparative sentencing, I acknowledge that in order for the courts to carry out their duties in uniformity, past cases may also be of assistance. However, the following was highlighted in 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. The of Joel Likilia & Allen Kokolabu v R, further supports the view in the case Sahu v Regina, when it 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].

21. In my view, the most appropriate sentence I should impose to achieve the sentencing theories highlighted earlier, is that of a fine.
22. In careless and inconsiderate driving cases, the courts have previously imposed fines ranging from 1000 to 3000. For cases regarding drivers to be licensed, the court has imposed sentences from 1000 2500. Bear in mind that the outcome of a case, is usually determined by its own set of facts and circumstances.
23. Hence, with respect to the offence of careless driving, I will be considering a range from 1000 to 3000. With 3000 being my starting point, I will deduct 1000 (1/3) of the starting point to reflect the early guilty plea taken. A further deduction of 400 is done to reflect the remaining mitigating factors, which brings us to 1600. I then added the amount of 700 to reflect the aggravating factors involved, which brings us to 2300. Note that I have pitched my starting point at 3000 given the ripple effect caused by your actions.
24. For the offence of drivers to be licensed, I will consider an amount from 2000 to 3000. Note that I selected the range based on the date in which your driver’s license had expired, to the date of your arrest. I then pitch my starting point at 2500 and deduct 800 to reflect the early guilty plea. The amount of 400 is further deducted to reflect the remaining mitigating factors, which brings us to 1300. I further added the amount of 1500 to reflect the mitigating factors involved, which brings us to 2800.
25. In terms of the damages incurred, as per the quotations and photographs tendered, I acknowledge that the Complainants are at liberty to open a civil case to claim for damages, however, I am of the view that the caveat in section 27 of the Penal Code be invoked. This would mean, that you will also be ordered to pay for the damages incurred on the five vehicles involved.
26. With this, the final orders of the court are as follows:

ORDERS

(I) For the count of careless and inconsiderate driving, a fine of SBD$2300.00, due by the 30^th of October 2020, in default, six months imprisonment.
(II) For the count of vehicles to be licensed, a fine of SBD$2800, due by the 30^th of October 2020. In default, six months imprisonment.
(III) A total fine of SBD$5100.00, due by the 30^th of October 2020. In total default, six months imprisonment.
(IV) Peter Paine to meet the damages sustained by the vehicles identified in the quotations and photographs tendered by the Crown.
(V) Right of appeal applies to any party aggrieved to this sentence.
(VI) Order accordingly.

Dated this 16^th day of September 2020.

_________________

THE COURT

Emily Z Vagibule- Magistrate

---

^[1] Section 40 (1) of the Road Transport Act
^[2] Section 20 (1) of the Road Transport Act
^[3] Section 20 (4) of the Road Transport Act
^[4] [2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008)
^[5] Prosecution summary of facts, filed on the 15^th of September 2020.
^[6] Above n 5
^[7] Above n 5
^[8] Above n 5
^[9] Above n 5
^[10] [2012] SBHC 122; HCSI-CRC 504 OF 2011 (3 October 2012)
^[11] [1998/89] SILR