R v Mauala [2020] SBMC 39; Criminal Case 638 of 2020 (7 October 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 638 of 2020

In the Criminal jurisdiction

BETWEEN: REGINA

V

AND: GIDEON MAUALA

Mr Tex Riwa for Police Prosecutions

Mr Hayniel Max for the Defence

Date of sentencing and mitigation submissions: 6^th of October 2020

Date of sentence: 7^th of October 2020

SENTENCE

Introduction

1. Mr On the 4^th of August 2020, you entered a not guilty plea, for the offence of careless and inconsiderate driving. We then adjourned the matter for a pre-trial conference (PTC), however, on the date marked for PTC, I was informed that you wanted a lawyer. I then gave you time to look for a lawyer.
2. Over time, the Prosecutor forgot about the stage we have already reached, and failed to inform the lawyer you secured, about the plea you took. It was only until the 5^th of October that I became aware of the confusion that had taken place, and further outlined the history of your matter. Further to this, I emphasised on the need to take notes whilst in court to avoid such confusion.
3. Having cleared the confusion, you were re-arraigned since you indicated to your lawyer that you will enter a guilty plea. The not guilty plea entered on the 4^th of August 2020 was vacated and a guilty plea was entered. Ms Aisa who stood on behalf of you on the 5^th of October 2020, notified me that she will not be available during the sentencing and mitigation stage, given that she had malaria. Hence, Mr Max, stood in for her when the matter came back to court for sentencing submissions.
4. On the 6^th of October 2020, the agreed facts were tendered, and conviction was then entered. This was followed by the oral sentencing and mitigating submissions by Mr Riwa and Mr Max.
   

Agreed facts

5. The facts surrounding this offending, premises on what had occurred on the 14^th of June 2020. On that date, you were driving a white Toyota Hiace bus that bears the registration number: MB-2879, along the Kukum SDA road, in front of the SDA bus- stop. The agreed facts showed that you did not have due care and attention to other road users, when you intercepted in front of another vehicle. That vehicle was described as a Big Horn vehicle. This caused the bumper of the Big Horn to fall off. However, I must say that it is quite confusing. I note from the charge that the interception caused the bumper of the Defendant’s vehicle to fall off. I was of the view that the Defendant in the particulars of the offence was you, until I saw in the agreed facts, that it was the Complainant’s bumper that fell off. It is important that those drafting charges should understand the difference between Complainants and Defendants, to avoid causing confusion.
6. In terms of the location, I was not properly assisted as to where exactly the accident occurred. Was it in front of the Bred Bank premises, or was it between the Kukum SDA Primary School and the Woodford International School? That I do not know.

Maximum penalty

7. The maximum penalty for the offence of careless and inconsiderate driving, is 5000 penalty units^[1], or six months imprisonment or both^[2]. This should indicate the level of seriousness involved.

Discussion

8. The offence of careless and inconsiderate driving, as stated in the charge, is contrary to section 40 (1) of the Road transport Act. The maximum penalty of 5000 penalty units, came into effect in 2009, following Parliament’s decision to have it increased from a fine of five hundred dollars. This year, marks eleven years after the Penalties and Miscellaneous Amendment Act was passed in 2009. Regardless of the increase made and the years that have gone by, people keep on committing this offence. This brings us to the question on whether or not much was done to deter the public from engaging in such unlawful actions.
9. The public needs to be protected from drivers who have less concern for other road users. As a resident of Honiara and a regular commuter, I have observed how most public transport drivers have been posing great risk to many road users. They seem to be more money oriented, than providing safer services to the general public.
10. Prosecutions submits that at the time of the offending, the road is usually busy. Hence, you should have been careful with the way you drove. Defence Counsel on the other hand submits that it may have been due to the road being busy, that you did not see the other vehicle, which I do not agree with. This was all the more reason for you to keep a proper look out on the road before making any turns.
11. At this stage, I must highlight, how Prosecutions was not very helpful during their submissions. It is and will always be their duty to provide the court with all the relevant details pertaining to their case, unfortunately, this was not done.
12. In terms of the mitigating and aggravating factors involved, the following will be considered:

Mitigating factors

(i) Your early guilty plea.
(ii) Genuine remorse.
(iii) Cooperation.
(iv) Personal circumstances.

Aggravating factors

(i) Seriousness generally.
(ii) Your level of culpability which is a little over the mid-range of the seriousness involved.
(iii) Your previous conviction. While I understand that the Criminal Records Office (CRO), does not have records of your previous conviction, I have the physical file containing the proceedings for your previous matter. When the matter (56/2020) was first called on the 4^th of February, there was no appearance, Mr Pitasua then applied for a warrant of arrest, which I issued on the spot. When the warrant of arrest was executed, it was Principal Magistrate Beneteti who sentenced you on the 28^th of February 2020. The offence you previously committed was also in relation to the vehicle in question, where you drove it when it was without a valid vehicle’s license^[3].

The fact that there is no record of any previous conviction with the CRO is the fault of the Prosecutor who appeared in your previous case as well as that of the current Prosecutor. Had these Prosecutors taken ownership and responsibility of their files, then they should have assisted each other in this regard.

13. As highlighted in the case of R v Ball, in deciding the appropriate sentence, the courts must first of all consider the public interest^[4]. Like I said earlier, the general public needs to be protected from inconsiderate drivers who demonstrate actions such as those that led to your arrest.
14. I note that parties have asked for a sentence of fine. Defence went on further to highlight cases previously dealt with by the courts, comparing the circumstances involved to this matter, and the sentences previously imposed. I acknowledge what Mr Max has done given that such comparisons would assist me in reaching a sentence that is not way below or beyond the appropriate sentence. However, parties would also agree that it is always best that cases be determined separately. As always, each case that comes before the court, must be dealt with based on its own set of facts and matrix.
15. In light of the Defence submissions, I was asked to give you a duration of two months, if I was to impose a fine on you. While I agree that the appropriate sentence in this regard, is that of a fine, I will not entertain such long periods if I am going to send a message of specific deterrence to you and the general public. I believe that there are circumstances in which the court might consider such durations, but not this case, especially when I am bound to protect the public interest.
16. Previously, the courts have imposed fines ranging from $1000 to $4000, all depending on the nature of each offending. For this case, I will consider a range from 1000 to 3500, with 3000 as my starting point. I deduct 2500 to reflect the early guilty plea and the other three mitigating factors. The remainder is then added with 1000, an amount reflecting the aggravating factors involved. With this calculation, I now order as follows:

ORDERS:

(1) For the offence of carless and inconsiderate driving, I sentence you to a fine of SBD$1500.00.
(2) The fine is payable by the 28^th of October 2020.
(3) In default of payment, three (3) months imprisonment.
(4) Right of appeal applies.

Dated this 7^th day of October 2020.

___________

THE COURT

Emily Z Vagibule-Magistrate

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^[1] Penalties and Miscellaneous Amendment Act 2009.
^[2] Section 40 (1) of the Road Transport Act.
^[3] Charge filed on the 30^th of January 2020 for Criminal Case (CMC) 56 of 2020.
^[4] (1951) 35 CrAppR 164