R v Alden [2020] SBMC 41; Criminal Case 884 of 2020 (26 October 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 884 of 2020

In the Criminal jurisdiction

BETWEEN: REGINA

V

AND: SAM ALDEN

Mr Tex Riwa for Police Prosecution

Ms Emy Rusi

Date of sentencing submissions: 20^th of October 2020

Date of sentence: 26^th of October 2020

SENTENCE

1. Mr Sam Alden, you pleaded guilty to one count of careless and inconsiderate driving, contrary to section 40 (1) of the road transport Act, one count of presence of alcohol in a person’s blood, contrary to section 43A (1) (a) of the Road Transport Act (as amended by the Police and Transport Legislation) (Amendment) (Alcohol Testing) Act 2016, and one count of drivers to be licensed, contrary to section 20 (1) of the Road Transport Act.
2. Having perused the agreed facts signed and tendered by your legal representative and the prosecutor in carriage of this matter, I then proceeded into entering conviction against you.
3. The facts provided in the agreed facts shows that on the 28^th of August 2020, between 0315 hrs and 0400hrs, you were driving a Golden Honda HRV that bears the registration number MC-4506, along the Mbokona Road. Upon reaching the small Axe area, facts showed that without due care and attention, the vehicle you were deriving then veered off the road and ended up ditching into the drain beside the road.
4. The Police then attended to the scene, following the reports made. Upon further investigation, it was found that you were under the influence of alcohol and that your driving license had already expired on the 16^th of October 2019. The vehicle on the other hand, was registered to one George Tasra. Following this, you were warned for Prosecution
5. The maximum penalties for each of these offending’s are as follows:
   • (a) Careless and inconsiderate driving: 5000 penalty units^[1] or six months imprisonment or both^[2];
   • (b) Presence of alcohol in a person’s blood: 10000 penalty units or twelve months imprisonment or both^[3]; and
   • (c) Drivers to be licensed; 5000 penalty units^[4] or six months imprisonment or both^[5].
6. Clearly, one would note that these maximum penalties alone should speak volumes of how serious these offending’s are. The maximum penalties for counts 1 and 3 have been in effect since 2009, while that of count 2 came into effect in 2016. As a Magistrate who has been dealing with traffic cases for almost every week, I would say that the number of traffic offending’s has and continues to increase. While there might be reports made by Police that traffic cases have decreased for certain periods and have increased during other periods, one thing that stands out, is the low reception coming from members of the general public.
7. People have not yet acknowledge the very purpose of our traffic laws and maximum penalties put in place to warn us for engaging in these kind of unlawful actions.
8. From the facts, I am being told that you were driving without undue care and attention, further to this, there was nothing to indicate as to the exact manner of driving you were engaging in. I do not know how parties expect me to make a proper assessment in terms of the offence of careless driving, specifically the appropriate sentence that I should impose. Until and unless I am allowed to make up scenarios in my head without the essential evidence, lawyers and prosecutors should assist the courts properly.
9. In terms of the prevalence of these offending’s, I am of the view that both the courts and police should identify the areas that are contributing towards the increasing number of traffic offences, and address them accordingly. It is quite alarming to see how people are confident on committing the offences at hand, when the police are certain that they are doing all they can do to stop these kind of offending.
10. I have given due consideration to the mitigating factors involved, especially, the early guilty pleas entered and genuine remorse, your honesty in coming to court, and your personal circumstances. I am being told that currently you are the only one looking after five of your children whom are all attending school. Your wife is currently working in Isabel hence the need for this court to consider your personal circumstances.
11. On the other hand, I must say that the circumstances surrounding the commission of these offending’s, are quite serious. This view can be supported with reference to the maximum penalties involved. As highlighted in the case of Regina v Kemakeza, and I quote:

“The level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty imposed. The more serious an offence, the greater the maximum penalty imposed^[6]”, end of quote.

12. As a Solomon Islander, I can say with confidence, that you have been well aware of the number of traffic accidents occurring in and around Honiara. Some of these accidents have resulted in severed damages, and most seriously, deaths. Clearly, you have put yourself in a risky position, despite knowing the high chances of ending up the way that you did. I do not think that a man who greatly values his fatherly obligations would want to risk his own life, especially when foreshadowing the impact his children will face, if he was to end up losing his live in a road accident.
13. I also acknowledge that the accident was a result of your deliberate decision making. First and foremost you knew that your driving license had been expired for almost 11 months, but you decided to drive. Secondly, you knew that you were in a vulnerable state, with the presence of alcohol in your blood, but you disregarded that. I do not see a reason that would justify your actions, the only thing that I see is the actions of a man who does not have concerns for the law and one who prioritizes his fun and leisure over the long term needs of his children. All these puts you at the upper hand of the level of seriousness involved.
14. The involvement of alcohol and the fact that the offending’s occurred at night time, gives all the more reason for me to label the circumstances of this case as very serious in nature.
15. Your legal representative have referred to three cases, and submits that the circumstances involved in each of these cases are far more serious than that at hand.
16. The case referred to are that of Regina v Ogrady, Regina v Keni and Regina v Soniluvu. From these cases, the common factors are the offences involved. However, unlike the case at hand, I believe the court was assisted as to what exactly led to the offences of careless and inconsiderate driving as seen from the facts provided in each of the cases referred to.
17. In terms of deciding the appropriate sentence, I will first of all consider the need for consistency and most importantly the need for each case to be dealt with based on its own set of facts and circumstances.
18. Essentially, the public interest needs to be protected from the negative impacts that are likely to result from these kind of unlawful actions.
19. This afternoon, I will be reemphasising on the significant need for both specific and general deterrence, rehabilitation, prevention and retribution.
    
20. Hence, having assessed the entirety of this matter, I believe that a sentence of fine would be appropriate for purposes of ensuring the sentencing theories highlighted above. Clearly, your presence in court for the past days should have been easily avoided had you made the good decisions, bearing in mind the current situation the country is faced with, in terms of Corvid-19. It is with this that I now order as follows:

ORDERS:

(1) For the count of careless and inconsiderate driving, you are sentenced to a fine of $1400 due by 11/12/2020 in default 2 months imprisonment;
(2) For the count of presence of alcohol in a person’s blood, you are sentenced to a fine of $2900 due by 11/12/2020, in default 6 months imprisonment;
(3) For the offence of drivers to be licensed, you are sentenced to a fine of $1500 due by 11/12/2020. In default 2 months imprisonment
(4) Total fine of SBD$ 5800 due by 11/12/2020, in default 12 months imprisonment.
(5) Invoke section 29 (1) and (8) of Road transport Act for disqualification.
(6) Right of appeal applies within 14 days from today.

Dated this 26^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] 43A (1) (a) of the Road Transport Act (as amended by the Police and Transport Legislation) (Amendment) (Alcohol Testing) Act 2016.
^[4] Above n 1.
^[5] Section 20 (1) of the Road transport Act.
^[6] [2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008).