R v Tanau [2020] SBMC 38; Criminal Case 272 of 2020 (28 September 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 272 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: BERNAD TANAU

Ms Dalcy Belapitu for the Crown

Ms Suzie Pengalo for Defence

Date of sentencing and mitigating submissions: 25^th of September 2020

Date of sentence: 28^th of September 2020

SENTENCE

Introduction

1. Mr Bernard Tanau, you were charged for the offence of careless and inconsiderate driving. This offence, is contrary to section 40 (1) of the Road Transport Act.
2. On the 15^th of September 2020, you entered a guilty plea. We further adjourned to allow the agreed facts to be settled and today, I will be handing down your sentence.
3. I did not enter your conviction straight after receiving the agreed facts, since I wanted to assess the evidence provided through the Crowns submissions and your legal representative before deciding in that regard.

Agreed facts

4. The facts agreed upon by the Crown and Defence in this regard, are as follows:

(a) The Defendant in this matter is, you, Mr Bernard Tanau, of South Malaita, Malaita Province.
(b) You are a Police Constable stationed at the Henderson Police Post.
(c) On the 28^th of May 2020, between 23:00hours and 23:30hours, you drove a motor vehicle that bears the registration number: G-4208. The vehicle is described as a white cage Hilux (truck). The accident occurred along the East Kola ridge road, specifically at the GG junction.
(d) It was agreed that at the time in question, you drove without due care and attention, and as a result you drove off the road and climbed onto the hillside, at the GG junction. This further resulted in the vehicle overturning and sustaining damages.

Maximum penalty

5. Section 40 (1) of the Road Traffic Act states:

“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^[1]”.

6. You would note from this section, that the maximum penalty, or the punishment one is liable to face, if found guilty of this offence, is a fine of five hundred dollars or to six months imprisonment. In 2009, the maximum penalty was increased by Parliament, from five hundred to five thousand dollars (penalty units)^[2]. The alternative penalty of six months imprisonment remains unaltered.
7. Parties would agree with me, that such significant increases may have resulted from the concerns shared by our legislators, in light of the rate in which this offence is committed, and the need to protect the public interest.

Section 35 of the Penal Code

8. Earlier on, I mentioned, that I did not enter conviction on your part right after receiving the agreed facts. This was because, I wanted to assess the arguments made. The Crown had asked that a starting point of 6 months imprisonment be considered, while Counsel for the Defence had asked that section 35 of the Penal Code be considered. In respect of section 35 of the Penal Code, I was asked not to enter conviction on your part, and instead impose a fine less than SBD$1300.00. The amount sought, was made with respect to the case of Regina v Jack Oso^[3]. The matter referred to was one where I imposed a fine of SBD$1300 for the offence of careless and inconsiderate driving. Counsel for the Defence believes that the circumstances surrounding Mr Oso’s offending, is more serious than the one at hand.
9. In light of Jack Oso’s case, the accident occurred out of his failure to decide on which direction to go. At first he turned on his signal indicator to show that he intends to travel east, from the Kola ridge junction. However, he changed his mind and turned west. This was when he hit the back of a bus that was travelling behind him, but drove past him when seeing the previous signal indicated^[4].
10. In comparing these two cases, the one at hand occurred in the night as opposed to that of Jack Oso. The case at hand shows that the vehicle in question had overturned. As for the case of Jack Oso, the collision did not result in either vehicles over turning.
11. Ms Pengalo had referred to the case of Mick Pongi Tapoika v Regina^[5] to support her calling in respect of section 35 of the Penal Code. This matter was previously heard at the Central Magistrates Court for the offence of failing to comply with traffic directions, before being appealed to the High Court. The Appellant, Mr Tapoika through his legal representative Mr George Gray, raised issues regarding the outcome of the case at the Magistrates Court. As highlighted at paragraph 6 of her ruling, Bird, J, mentions the fact that the Appellant had been discharged conditionally under section 35 of the Penal Code. The subheading introducing Section 35 of the Penal Code states: Discharge of Offender without Punishment. For reasons pertaining to section 35 of the Penal Code, I believe that there is a need for the actual wordings to be outlined, hence they are as follows:

Section 35- “Where, in any trial, the court thinks that the charge against the accused person is proved but is of opinion that, having regard to the character, antecedents, health or mental condition of the accused. or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge either absolutely or conditionally^[6]”.

12. Parties would note, that I have underlined the words absolute and conditionally. These words are not defined in the Penal Code. However, according to the online Merriam-Webster, the history and etymology for the word absolute comes from the Middle English word, absolut^[7]. This was borrowed from the Latin word, absolūtus^[8]. Absolūtus was taken from the past participle of absolvere, which means, “to set free, acquit, finish, or complete^[9].
13. As for the word conditionally, it comes from the Anglo- French speaking era where the word used, was, “condicion^[10]”. It is also related to the Latin word, condicion. It further evolved to mean determined or depend^[11]. Still on the Merriam-Webster, the word conditional or conditionally can be presented in the form of an Adjective, noun and verb^[12]. When the word conditionally is used, it means that something depends on something else being done^[13].
14. Coming back to Ms Pengalo’s submission with respect to section 35 of the Penal Code and the case of Tapoika, I must say that what she is asking for, contradicts the issues raised in the case of Tapoika when it was appealed to the high Court. She is asking me not to enter conviction, but to only impose a fine below SBD$1300.00. In the case of Tapoika, issues were raised with respect to the presiding Magistrate’s decision not to enter conviction against him but further ordered that his driving license be disqualified for a period of one year. Justice Bird referred to section 29 (2) of the Traffic Act and emphasised on how an order for disqualification of license can only be made, if the court below had entered a conviction^[14].
15. Justice Bird, further states at paragraph 18 of her ruling and I quote;

“Instead of proceeding to convict the Appellant, the learned Magistrate had opted to discharge him under section 35 of the Penal Code. It is my view that when a court of first instance uses this section, they are opting not to punish the offender^[15]”.

16. This is why I stated earlier that what Ms Pengalo is asking for contradicts what was raised in the case of Tapoika. If section 35 of the Penal Code in its entirety should be interpreted in a way that means, discharging an offender without imposing any form of punishment, I will concur with the view shared in the case of Tapoika and will not accept Ms Pengalo’s submission in this regard.
17. Section 35 states that if the court has proved the charge against the Accused but is of the opinion that the offence committed is not expedient to inflict any punishment, having regard to the character, antecedent, health, mental condition of the Accused or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, may without proceeding to convict, make an order dismissing the charge absolutely or conditionally^[16].
18. If the approach taken in the case of Tapoika was to be applied in this case, then it would be of less assistance to the argument at hand. While Ms Pengalo had referred to this High Court case, she seemed to have misinterpreted it, as seen at paragraph 27 and 37 of her written submissions. A fine, in my view, is a type of sentence imposed by the court after a conviction is entered. I also note that the circumstances leading to Mr Tapoika’s initial case at the Magistrates Court, is quite distinct from that at hand.
19. If I am to consider Ms Pengalo’s submission, I should pay close consideration to the manner in which the offence was committed, whether or not alcohol was involved, the impact it had caused, and the time of the offending. Clearly, there is no dispute that you, were careless and inconsiderate, when you drove the vehicle in question and ended up over turning. From the agreed facts, there is nothing to suggest that you were under the influence of alcohol. However, this has resulted in the unnecessary damages sustained, and the money used to fix what you caused. Furthermore, the accident occurred at night, a factor that renders this offending as very serious in nature. This in my view, shows that there is minimal indication, which proves this offending to be trivial or extenuating in nature.
20. I note that as part of your antecedent, the fact that you are a father to two young children and the only breadwinner for your family, were drawn to my attention. However, I am not of the view, that these things are adequate or sufficient to invoke section 35 of the Penal Code
21. In order for an Accused to be discharged under section 35 of the Penal Code, either absolutely or conditionally, the court must first of all be satisfied that the factors involved, clearly warrants such an outcome. If the court is satisfied, then it may without proceeding to conviction, make an order dismissing the charge either absolutely or conditionally. If the charge is to be discharged absolutely, then it would mean that the court has completely acquitted the offender without any form of punishment. However, if the charge is discharged conditionally, then it would mean that the accused is discharged subject to something else being done, with reference to paragraph 13 of this sentence.
22. Even If Ms Pengalo’s argument was in line with discharging conditionally under the said section, the circumstances involved would not allow for such an outcome.
23. With the findings I have alluded to, I am not of the view that the offending at hand, is one that should fall under the wordings of section 35 of the Penal Code. To invoke this section would mean that I condone such carelessness on the part of our Police Officers. Hence, I am not inclined to accept Ms Pengalo’s argument in this regard and hereby enter conviction against the guilty plea entered.

Discussion

24. The offence of careless and inconsiderate driving, as far as this court is concerned, is one of the offences committed on a prevalent basis. I understand that a number of awareness’s have been made by the Police, about the risks involved with this offending. Regardless of the efforts put in place to deter and prevent this offending, this court continues to deal with cases such as this on a weekly basis.
25. The question we should be asking is, why is there minimal reception by the public, in response to the need for all drivers to be cautious and considerate in their manner of driving? Is the court not doing enough to send out messages of general deterrence, or does this reflect a weak and ineffective law enforcement body, with reference to Guy Powles minimum standard framework^[17], or what could possibly be the cause of such prevalence?
26. It is very important that these questions be addressed, to ensure an effective fight towards minimizing the offence of careless and inconsiderate driving.
27. Coming back to the Crowns submission, I note how Ms Belapitu has paid significant consideration towards the fact that you are a Police Officer. She submits that, as a Police Officer, you are expected to be self-disciplined and to uphold the laws at all times, whether on or off duty. She further submits that the offending is aggravating in nature, since you are a Police Officer. She states that you were entrusted with care to use the vehicle, but due to your actions, the vehicle was badly damaged. The vehicle, according to Ms Belapitu is now idled and no longer usable at present. She believes that your actions has caused loss to the Government of Solomon Islands by depriving the Royal Solomon Islands Police Force (RSIPF) from using this vehicle for logistical purposes.
28. In light of the submissions done on your behalf, Ms Pengalo has asked me to consider the nature of work that Police officers working under the General Duties Shift Unit, are tasked with. She states that the nature of work is tough at times, especially during the night shifts. Since I am not a Police Officer, I would not know what your tasks are, and if this was an argument I should have given more weight to, Ms Pengalo should have outlined the duties you have been carrying out prior to the time of the offending. I note from her submissions that your shift on the 28^th of May 2020, commenced at 5:00 pm. You instructed her that you were very tired when you were asked by your colleagues who were on duty that night, to go and pick up Police Constable John Tatahu, at Border Line for the next shift. You refused to go but since none of your colleagues can drive, you drove the vehicle despite the fact that you were very tired from the work you did during the night. The accident, as described by Ms Pengalo happened when you were trying to adjust your seat belt.
29. Like I mentioned earlier, I was not assisted properly to identify what exactly you have been doing to result in how tired you said you were. While I understand that it is normal for the human body to doze off at night, you knew beforehand that your shift will start at 5:00 pm and since you were still on duty during the time in question, it means your duty will run through the night. What you should have done was to take a sufficient amount of rest that would enable you to stay up all throughout your shift.
30. On the same note, I have heard during previous sentencing submissions in situations similar as this, how Police Prosecutors have strongly emphasised on the need for drivers to take a rest if they are feeling tired or sleepy. If this is the message our Police Prosecutors are trying to put across, then I question why you would proceed into driving the vehicle when you knew you were feeling tired. I was not even told as to the urgency to pick up Police Constable John Tatahu. Would there have been a catastrophic effect if this Officer was not picked up? I do not know when the next shift was to commence, since this was not stated on your behalf, hence I would say that there is no sense of urgency to justify why you drove the vehicle when you said you were very tired.
31. With respect to the damages, Ms Pengalo submits that the vehicle has been repaired and is now used by the Naha Police Station. She also tendered photographs to show the damages sustained, as well as a report from the RSIPF Garage Unit. The report confirms the damages sustained and the fact that the vehicle had been repaired at Rove Police Garage. Ms Pengalo also states that the repairs did not cost the Government any expenses. In my view, the right words, would have been something along the lines of, minimal expenses. To say that there were no expenses, would be too exaggerating. Nothing in this world is done for free, when something is free, one should always acknowledge that it is done at the expense of someone else. In this case, I believe expenses were used to repair the unnecessary damages that resulted from your decision making.
32. I agree with Ms Belapitu when she said your actions had deprived the RSIPF, especially the Henderson Police Post, from using the vehicle for logistical purposes. I cannot even begin to outline the ripple effects your actions has caused to the operation of the Henderson Police Post.
33. Coming back to the accident, I would say that it is indeed a blessing, that you did not lose your life. From what was described in the agreed facts, I would say that while it was an unfortunate circumstance for the RSIPF, with respect to the damages sustained to one of its vehicles and the response in which the public would make, I am grateful that lives were not lost. Imagine the impact your children might face had you lost your life on spot, especially that of losing you at very young and tender ages and being deprived off your presence throughout their upbringing.
34. I made reference to your children since Ms Pengalo submitted that you have two young children, the eldest being 7 years old, while the second child is only 3 years old. She also submits that you are the only bread winner for your family. Hence if you are serious about your family obligations, then you should be making good decisions, unlike what has led us to court for the past days.
35. From the submissions before me, both Counsels have referred to cases (R v Mark Denis^[18], R v John Rae^[19], R v Walter Kola^[20], R v Hunikira^[21], Regina v Jack Oso^[22], Regina v Funusulia^[23], and Regina v Tauto^[24]) previously dealt with by the courts. From these cases, I note that all Defendants have been sentenced to fines ranging from SBD$1300 to SBD$3500. I acknowledge what Counsels have done, since this will greatly assist in terms of minimizing objectionable disparity. The same view was taken in the case of Regina v Ramosala, where the court stated at paragraph 11,

“To ensure uniformity and coherence, past cases can be of significant assistance^[25]”.

36. In the 2016 case of Regina v Garry Kere^[26], Principal Magistrate Augustine Aulanga made reference to the unreported Court of Appeal case of Regina -v- Kata and Others^[27], where it was stated and I quote:

“There is no doubt that sentencing offenders is a difficult task. It is important that, whilst acknowledging the independent discretion that must be exercised by each judge (or Magistrate) in each case, the courts must strive for coherence and similarity of outcome in similar cases. The allowances must be made for differences, both in objective circumstances and subjective features. At the same time, each judge or magistrate needs to consider what their judicial colleagues have done in other cases with a view to attempting to achieve a collegiate and coherent system of sentencing. Otherwise, the goal of equal justice will be frustrated and the administration of criminal justice tarnished by the perception that it represents the purely personal opinions of individual judge and magistrates and offenders whose offences are similar and personal situations much the same will suffer sentences that differ for no apparent rational cause, whilst similar sentences may be imposed where offences vary significantly in gravity and subjective features are very different. Of course, uniformity is not the goal: the circumstances of particular offences more often than not will vary greatly, as will subjective factors. The objective is to achieve a coherent system of sentencing in so far as that can be achieved, whilst recognising and respecting the obligation of each judicial officer to exercise his or her independent discretion and Judgment. Accordingly, it is not only proper but desirable that judges and magistrates should be informed of sentences that have been imposed by their colleagues and bear those outcomes in mind in considering his or her particular case. Over time, a pattern will emerge as the number of cases increase and, hopefully, a range of sentences can be discerned. The presence of the pattern and demonstrating of a range obviously requires more than just a few cases, although it is of course inevitable that, towards the beginning of this process, the number of cases will be small^[28]”.

37. However, it is well acknowledged, that each case must be dealt with based on its on matrix. At paragraph 6 in his judgement, on the case of Sahu v Regina, Pallaras, J, stated and I quote:

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^[29].

38. This view can be justified on the basis that in sentencing, there are no fixed mathematical rules, given the fact that circumstances and people vary^[30].

Mitigating and Aggravating factors

39. In terms of the mitigating factors involved, the following were considered:
    • (a) Your early guilty plea, which has no doubt saved us the time and resources from bringing the matter to trial. Your guilty plea indicates remorse on your part, as confirmed in the submissions made on your behalf.
    • (b) I note that you are a first time offender.
    • (c) I also note how you have been faithfully attending your court hearings. Further to this, I also note that you have fully cooperated throughout the investigation stage to date.
    • (d) Lastly, I will pay due consideration to your personal circumstances, whereby, you are a father to two young children, and the only bread winner.
40. On the other hand, I have noted the following as the aggravating factors involved:
    • (a) Seriousness generally, as reflected in the maximum penalty.
    • (b) Your level of culpability which I find right in the middle of the seriousness involved.
    • (c) The fact that during the time of the offending, you were a Police Officer.
    • (d) The time of the offending.
41. With these factors, I wish to emphasise the need to keep our roads free from ignorant drivers, who fail to acknowledge the responsibility they are obliged to take, whilst driving on the road. Accidents happen at any time through the least expected way, hence the need for drivers to be vigilant in their manner of driving. I understand that despite being a Police Officer, you are just a human being, who like other human beings, is prone to facing such encounters. However, I strongly believe that this was something you could have avoided at the first place. I do not believe that you are new to Honiara and would not be able to know of how narrow our roads are.
42. This morning, I will once again highlight the need for both specific and general deterrence, prevention, rehabilitation and retribution. The public interest needs to be protected at all costs, hence the need for these sentencing theories to be put into effect. Further to this, I will ensure that whatever sentence I impose should serve the need for actions to be taken and most importantly reflects the level of tolerance this court has towards the offending at hand.
43. Earlier, I have mentioned that the Crown has asked for a sentence with a starting point of six months imprisonment. This reflects the seriousness of the circumstances involved. From the Defence submission, I take that the sentence sought, is that of a fine. With these two opposing views, Counsels would agree that the outcome of a case, will be at the court’s discretion.
44. In my view, and having paid consideration to the cases of Regina v Hunikira^[31] , Regina v Peter Paine^[32], and the unreported case of Regina v Robson Djokovic^[33], I believe the appropriate sentence is that of a fine.
45. Previously, the courts have imposed fines from of 1000 to 4000, depending on the circumstances involved. From what is presented to me, I will be considering a range from 1000 to 4000. From this range, I will consider a starting point of 3500. I deduct 1200 (rounded off 1/3) to reflect the early guilty plea. I further deduct 1500 to reflect the remaining 3 mitigating factors which brings us to 800. I then add the amount of 1200 (500, 500, 200, and 200) to reflect the 4 aggravating factors identified.
46. From this basic calculations, I now order as follows;

ORDER:

(i) For the count of careless and inconsiderate driving, you are ordered to pay a fine of SBD$ 2,200.00 which is due by the 5^th of October 2020.
(ii) In default of payment, six months imprisonment.
(iii) Right of appeal applies within 14 days from today.

Dated this 28^th day of September 2020.

_____________

THE COURT

Emily Z Vagibule- Magistrate

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^[1] Section 40 (1) of Road transport Act
^[2] Schedule-section 8 of Penalties and Miscellaneous Amendment Act 2009
^[3] Regina v Jack Oso [2020] CRC 583 of 2020
^[4] Above n 3
^[5] Mick Pongi Tapoika v Regina HCSI CRC NO. 693 of 2019.
^[6] Section 35 of the Penal Code of the Solomon Islands.
^[7] Merriam Webster, https://www.merriam-webster.com/dictionary/absolutely, 27^th of September 2020.
^[8] Above n 7.
^[9] Above n 7.
^[10] Merriam Webster, https://www.merriam-webster.com/dictionary/condition, 27^th of September 2020.
^[11] Above n 10.
^[12] Above n 10.
^[13] Above n 10.
^[14] Paragraph 17 of Mick Pongi Tapoika v Regina HCSI CRC NO. 693 of 2019.
^[15] Paragraph 18 of; Mick Pongi Tapoika v Regina HCSI CRC NO. 693 of 2019.
^[16] Above n 6.
^[17] Anita Jowitt, The Guy Powles Minimum standard framework, http://repository.usp.ac.fj/10234/1/The_Guy_Powles__Minimum_Standards_Framework.pdf, 27^th of September 2020.
^[18] CMC-CRC No. 934 of 2014.
^[19] CMC- CRC 343 of 2015.
^[20] CMC-CRC 354 of 2015
^[21] [2015] CRC 360 2015
^[22] Above n 3.
^[23] [2020] SBMC 28, CRC 544 of 2020.
^[24] [2020] SBMC 27, CRC 419 of 2020.
^[25] Criminal Case No. 1297 OF 2015 & 27 OF 2016
^[26] [2016] SBMC 33; Criminal Case 932 of 2016 (12 December 2016)
^[27] SICOA – CAC No. 35 of 2007
^[28] Above n 27.
^[29] [2012] SBHC 122
^[30] [1998/89] SILR
^[31] Above n 21.
^[32] [2020] SBMC 35; Criminal Case 833 of 2020 (16 September 2020)
^[33] [2020] CRC 716 of 2020