R v Olofia [2020] SBMC 42; Criminal Case 811 of 2020 (28 October 2020)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 811 of 2020

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: BRUNO RUBIN OLOFIA

Mr Tex Riwa for Police Prosecutions

Mr Patrick Abe for the Accused

Date of sentencing submissions: 27^th of October 2020

Date of sentence: 28^th of October 2020

SENTENCE

1. Mr Bruno Rubin Olofia, you were initially arrested and charged for one count of careless driving, contrary to section 40 (1) of the Road Transport Act, one count of presence of alcohol in a person’s blood, contrary to 43A (1) (a) of the Road Transport Act (as amended by the Police and Transport Legislation) (Amendment) (Alcohol Testing) Act 2016, one count of using unlicensed motor vehicle, contrary to section 7 (1) of the Road Transport Act, one count of using unlicensed motor vehicle, contrary to section 8 (1) of the Motor vehicles Third Party Insurance Act, and one count of drivers to be licensed, contrary to section to section 20 (1) of the Road Transport Act.
2. On the 20^th of October 2020, Mr Riwa made an application to have the count of careless driving withdrawn under section 190 (2) (b) (i) of the Criminal Procedure Code. The application was sought following the proposal sent by Mr Abe for a plea bargain. Having heard the application and the reasons attached, I then made orders to have the offence of careless driving withdrawn and further discharged you on the said count.
3. On the same date, I read the charge to you, and thereby recorded guilty pleas for the remaining counts. The agreed facts were tendered on the 27^th of October 2020, followed by the sentencing and mitigating submissions. With the agreed facts before me, I then entered conviction against you. The offences that you pleaded guilty to, are among those frequently committed under the Road transport Act, the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016 and the Third Party Insurance Act.

Agreed facts

4. The facts pertinent to this matter states, that on the 26^th of July 2020, at about 0240 hours, you were driving your car, a white Toyota Sprinter bearing the registration number: MA 6634. You were travelling on the easterly direction, along the Central market area, when you were pulled over by the Police. They suspected that you were under the influence of alcohol at the material time, they were of this view because they saw that the two people travelling with you were both sleeping. Since you smelt heavily of alcohol, you were asked to go to the Central Police Station.
5. At the central Police Station, two breath analysis tests were carried out on you. The first result showed a reading of 0.154 g/100ml alcohol while the second test showed a result of 0.143 g/100ml. Further to this, it was found that the vehicle license had expired on the 31^st of May 2020, it was also found that the third party insurance of the vehicle had expired on the 18^th of June 2020. In light of your driving license, Police found that it had already expired on the 15^th of November 2019. It was due to this that you were then charged for the offences you pleaded guilty to.

Alloctus

6. According to you, the vehicle had been faced with mechanical problems and was only fixed the day before you were arrested. With respect to the offence of presence of alcohol in a person’s blood, Mr Abe had tendered the statements relating to the particulars of your driving license, the preliminary breath test, breath analysis test and the formal caution. I do not know what Mr Abe intends to prove when tendering these documents, since they do not seem to assist on your part, except to show that you have cooperated with the Police.

Maximum penalties

7. The maximum penalties apropos to these offences are as follows:

Count 2: 10,000 penalty units^[1] or twelve months imprisonment or both;

Count 3: 5000 penalty units^[2] or six months imprisonment or both^[3];

Count 4: 150 penalty units^[4] or four months imprisonment or both

Count 5: 5000 penalty units^[5] or six months imprisonment or both^[6].

8. As rightly put by Sir Albert Palmer, CJ, in the case of Regina v Kemakeza, the seriousness of an offence is reflected through the maximum penalty imposed by Parliament, or as put in his own words:

“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^[7]”.

Analysis

9. The offences at hand, are among those committed on a prevalent basis. Despite the warnings made by Police and the harsh sentences imposed by the court, these offences continue to happen at the upper side of the median range.
10. The offence of presence of alcohol, is one that still needs to be understood properly by the general public. I say this, because many seem to think that it solely relates to consuming alcohol whilst in the act of driving a motor vehicle. Part 4A under section 111A of the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016, clearly indicates the prescribed level of alcohol that one is allowed to have in his or her blood whilst driving a vehicle on the road. From this section, the prescribed level specified, is (0.05%)^[8]. The results shown from your breath analysis tests are way above the prescribed level.
11. The agreed facts and caution statement, do not seem to explain why you had to drive the said vehicle at the time in question. I note from the statement, that you reside at Panatina Valley, my question is, why were you travelling from the west of Honiara in the wee hours of the morning, when there was presence of alcohol in your blood, and when you knew you do not have a valid driving license? Further to that is the fact that both the vehicle and third party insurance have already expired. I do not see the urgency as to why you should be using the said vehicle on the road, at the material time.
12. I do not need to repeat the need for drivers to have a clear conscious whilst driving along our public roads. All drivers are in a greater need of being informed about the duty and responsibility they owe to the lives of all road users, when driving any vehicle on the road. I believe that so much has already happened to signal the need for drivers to be sober when driving on the. At this stage, I will now refer to the remarks highlighted by the court in the case of Cheffers v Regina, where Daly, CJ, as he was then, stated and I quote:

“Driving whilst under the influence of liquor is extremely serious offence. Anyone who drives in such a state has deliberately than a course of action that puts his own and far more seriously, other people's lives at risk. However carefully he may attempt to drive, his reactions if confronted with an emergency will not be as effective as when he has taken no alcohol^[9]”, end of quote.

13. The answers provided in the caution statement, do not in anyway, explain or justify why you chose to drive the vehicle at the first place. I don’t suppose you were not aware from the start that the two persons travelling with you at the material time, are not in the position to drive the said vehicle.
14. The vehicle as stated by you was only fixed the day before you were arrested, again, there was no proper and clear explanation as to why you had to use the vehicle when you know that both the third party insurance and vehicle license have both expired. Unless a genuine explanation regarding life and death was provided, I would say you chose to ignore the legal requirements that must be complied with to render a vehicle road worthy.
15. The fact that your driving license had already expired back in November 2019, is another factor that shows how ignorant you were.
16. Mr Abe has tendered cases previously dealt with by the courts and had asked that I consider the views taken. One of the cases that I was specifically referred to was that of Regina v Ogrady. The Accused in that matter was a Police officer when he committed the offences he was charged for. With respect to the counts of motor vehicles to be licensed and motor vehicles to be insured, the court entered conviction without penalty^[10]. When comparing the circumstances in this case to that of Regina v Ogrady, I am not properly assisted as to why you drove a vehicle that has no valid license and third party insurance. Clearly the circumstances at hand are quite distinguishable.
17. In terms of the mitigating and aggravating factors involved, I have drawn consideration to the early guilty pleas entered, the genuine remorse shown, your personal circumstances such as you being a young father and the other responsibilities placed upon your shoulders. Clearly, all these would not have happened, had you made the proper decisions.
18. I also take into account the opposing factors such as the seriousness of each count and the level of culpability on your part, which I find at the mid-range of the seriousness involved. Furthermore, I also note that the offending’s occurred in the night and the involvement of alcohol. These factors are crucial and plays a significant role in terms of the appropriate sentence for each of these offending’s.
19. I accept that comparing cases is essential for the very purpose of consistence and uniformity, or in other words, to minimize objectionable disparity. On the other hand, I highly acknowledge, that each case must be dealt with according to its own facts and matrix. Essentially, the court must sent out a strong message to an individual offender as well as the general public as a whole. Clearly, the public interest needs to be protected, hence the need to ensure that some, if not, all the sentencing theories are adequately voiced in any sentence imposed this afternoon.
20. With the nature of these offending’s and the need for specific and general deterrence, rehabilitation and retribution, I believe that the most appropriate sentence I should impose is that of a fine. Previously the courts have imposed fines between certain ranges all depending on the circumstances involved.
21. Hence, having assessed the entirety of this matter and having acknowledged how many have been affected by the ripple effects of the Corvid 19, I will now adjudge as follows:

ORDERS

1. Count 2: I sentence you to a fine of SBD$3000.00 due by the 29^th of December 2020, in default, six months imprisonment.
2. Count 3: I sentence you to a fine of SBD$ 1000.00 due by the 29^th of December 2020, in default, 3 months’ imprisonment.
3. Count 4: I sentence you to a bound over for a period of 12 months in the sum of $150.00
4. Count 5: I sentence you to a fine of SBD$1400.00 due by the 29^th of December 2020, in default, 3 months imprisonment.
5. Total fine of SBD$5400.00, in default 12 months imprisonment.
6. Section 29 (1) and (8) of the Road Transport Act is also invoked for a period of 12 months, for disqualification.
7. Right of appeal applies within 14 days from today.

Dated this 28^th day of October 2020.

______________

THE COURT

Emily Z Vagibule-Magistrate.

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^[1] 43A (1) (a) Penalty: (b) (i) of the Road Transport Act (as amended by the Police and Transport Legislation) (Amendment) (Alcohol Testing) Act 2016.
^[2]Penalties and Miscellaneous Amendment Act 2009.
^[3] Section 7 (1) of the Road Transport Act.
^[4] Section 8 (1) as read with section 8 (2) (b) of the Motor Vehicles Third Party Insurance act.
^[5] Above n2.
^[6] Section 20 (1) of the Road Transport Act.
^[7] 2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008).
^[8] Part 4A, section 111A of Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016.
^[9] Unrep. Criminal Case No. 11 of 1989.
^[10] [2018] SBMC 7; Criminal Case 289 of 2018 ( 29 March 2018)