R v Fanasia [2021] SBMC 13; Criminal Case 677 of 2021 (24 September 2021)

IN THE CENTRAL MAGISTRATES’ COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 677 of 2021

REGINA

-v-

PETER FANASIA

Date of plea: September 15, 2021
Date of hearing: September 15, 2021
Date of sentence: September 24, 2021

Moffat Tei for the Police Prosecution
Defendant in person

SENTENCE

Introduction

1. The defendant, Mr. Fanasia is charged with an offence of Presence of Alcohol in Persons Blood contrary to section 43A (1) (a) of the Road Transport Act (Cap. 131), as amended by the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016. Upon being arraigned, the defendant entered a guilty plea. The charge was filed and presented to Court on September 9, 2021.

Facts

2. The facts were read to the defendant in pidgin language and he agreed to it. Hence, it was tendered to court, and it will be used today in his sentence.
   
3. It was accepted that on August 20, 2021 between the hours of 12:05am and 12:30am, Kukum operations team mounted a traffic check in front of Kukum traffic center along Ropi Street. During the check, Police constable Kabi checked a white Toyota Corolla registration number: T-0208, which drove through the check point. A thorough check revealed the vehicle licence was valid.
   
4. Later, the defendant was then introduced to undergo breathalyzer test. An initial test result revealed a reading of 0.216g/100ml of alcohol concentration level in his blood. After 10 minutes of observation, the defendant was again introduced to undergo a second breathalyzer test. The second test showed a reading of 0.213g/100ml.
   
5. The defendant was then charged and released on bail to appear before this Court.
   

Aggravating and mitigating factors

6. The prosecution has raised the following as aggravating. First, putting lives of bystanders and other road users at risk. The recorded level of alcohol concentration of 0.213g/100ml is significantly high when weighed with the minimal level of 0.05g/100ml. This would undoubtedly impair his proper coordination and driving capability, compared to when being sober. Hence, accept that his driving, at that level of intoxication would pose a conceivable risk of motor vehicle accident. Second, it occurred around mid-night, and with such level of alcohol concentration, taking into account the function of a human body, it would be proper to state that he was prone to dozing off, which potentially could cause severe traffic accident that can lead to serious injuries and death.
   
7. On the other hand, the defendant has pleaded guilty at the earliest opportunity. He has accepted the facts, and demonstrated remorse in court. He confidently asked the court to proceed without a lawyer as well, which has saves court’s time and resources. The defendant is also a first-offender, and this would be his first brush with the law. He cooperated well with the police during investigation. As for his personal circumstances, the defendant is a married person with 5 children, and currently self-employed.
   

Starting point

8. For reason that the defendant appeared in person, I must set out the sentencing guidelines, case authorities, and tariff to pitch the appropriate starting point. These are the case authorities relied on by our courts for offence of presence of alcohol in person’s blood:-
   
   • (i) In R v Soniluvu^[1] (“Soniluvu”) the accused pleaded guilty to a count of presence of alcohol in person’s blood. The facts of that case reveal that on 26^th of September 2016 between 1pm -3pm, the accused drove a blue Toyota Rav-4 registered MB-3804 along the prince Philip Highway. When he reached Burnscreek area on his way eastward direction, he crashed onto a rear side of another vehicle described as a Suzuki Escudo registered as MA-3426. As a result, both vehicles sustained damage. This incident resulted in the police attended to his vehicle at the scene. He was suspected of driving whilst under the influence of liquor. Police conducted a breathalyzer test with him at the road side to determine whether he has alcohol. The test result showed a reading of 0.329%. The final test was conducted at the Police Station and the result was 0.294% of alcohol present in your blood. Having considered all factors, the court imposed a fine of $4,000 on the count of presence of alcohol in person blood.
     
   • (ii) In R v Ogrady^[2] (“Ogrady”) the accused pleaded guilty to a count of presence of alcohol in person’s blood, along with other traffic related offences. The facts show that in the early hours of 1^st March 2018, he was drinking alcohol with some of his friends somewhere in the Honiara town. Towards 3:00am, he decided to return home and so he drove back to his residence in his private vehicle. As he drove up the Florence Young hill and reached a curve along the hill, his vision was distracted by a high beam light of an oncoming vehicle and this made him to run off the road and collided with an electric post situated at the roadside. His vehicle sustained damage as a result of the accident. Following the accident, Police was called to attend the scene and apprehended him. He appeared drunk and hence was conveyed to the Kukum Police Station to undergo a breathalyser test. His final test reading was 0.209% which was above the permitted level for driving. The Court having considered the totality of factors and the accused being a sworn police officer, imposed a fine of $4,000 for the count of presence of alcohol in person’s blood.
     
     • (iii) In the case of R v Marau^[3] (“Marau”), the accused pleaded guilty to a count of presence of alcohol in person’s blood. The facts reveal that during the night of 4^th March 2017, Kukum Traffic officers were conducting a Random Breath Test traffic checks along the Mendana Avenue Road in front of the Central Police Station. At about 9:48pm, they stopped a Grey Toyota RAV4 driven by the accused and pulled him at roadside for a breathalyzer test. He voluntarily participated and following the preliminary test, police found the level of alcohol concentration present in his blood was 0.145% which exceeded the permitted level of 0.049%. He was escorted to Central Police Station for the final breathalyzer test where his final test result showed 0.132% of alcohol present in his blood. Having considered the factors of the case more significantly that the accused was a parliamentarian and legislator, the court imposed a fine of $5,000 and in default 6 months’ imprisonment.
       
     • (iv) In the case of R v Kimi^[4] (“Kimi”), the accused person pleaded guilty to a count of presence of alcohol in person’s blood and driving unlicenced motor vehicle. The facts show that on the on the 1^st May 2020, between the hours of 6:00am to 6:30am, the accused was driving a Toyota Hiace motor vehicle registration number MB-5722 along the Mendana Avenue road in front of BSP, Heritage Park Hotel, heading easterly direction. An officer who was on foot beat exercise sighted the said motor vehicle and contacted the central police patrol to assist in arresting the said vehicle. Upon responding to him, a police chase ensued and the accused motor vehicle was apprehended. Thereafter, he was then escorted to the Central Police Station. He was later being transported from Central Station to Kukum Police station. On his arrival, he undergoes a preliminary breath test and a result shown was 0.168% which was over the prescribed level. After 10 minutes’ observation time, he undergoes a further breath analysis with a test result of 0.168%. He was formally arrested for the offence of presence of alcohol in person’s blood. A further investigation was carried out through JIMS record and it revealed the vehicle licence expired on 30^th April 2020. He was then formally charged for the two counts. The Court imposed $3,000 fine or in default of 6 months’ imprisonment.

Discussion

9. The facts of this case is more akin to Kimi, albeit minor differences. In Kimi, the defendant was chased by police before he was arrested. In this present case, he was merely driving through a checkpoint and there was nothing to explain a misbehavior or unacceptable standard of driving. The hours when he was arrested and the alcohol concentration level must be distinguished to Kimi. I accept that Ogrady’s and Soniluvu’s concentration of alcohol level falls similar to this case, being 0.213%. And, these cited cases would to some extent explain the unsteadiness and standard of driving that such alcohol level is prone to display.
   
10. This court in the case of R v Qiang^[5] explained the argument that exists between drivers pertaining to the level of steadiness when driving under the influence of liquor; where it stated [at para. 6]:
    

“Although it might be debated that some drivers are well experienced that they can control their driving even while under the influence of liquor and or while presence of alcohol in blood is above the prescribe percentage, there is no guarantee that the same vigilance, consciousness and coordination will be applied, compared to if the driver is sober.”

11. In R v Cheffers^[6] (“Cheffers”), Ward CJ, as he was then, stated:

“Driving whilst under the influence of liquor is an extremely serious offence. Anyone who drives in such a state has deliberately 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^”.

12. In Ogrady, he was a police officer at the time of offence, someone whom the public places a high trust and confidence on to enforce the law, without fear or favor, however he had breached the trust. In this current case, the defendant is an ordinary citizen, although his ignorance to the law, and numerous ‘don’t drink and drive’ awareness.
    
13. In stating the above, and weighing the facts and circumstances of the cited cases to the one at hand, I take a starting point of fine in the amount of $4,000. An additional $2,000 is added to reflect the aggravating factors. For his mitigation, I deduct $1,500 to consider his unequivocal guilty plea, and genuine remorse displayed. A further deduction of $1,500 is made in consideration to his clean criminal history, cooperation with police, and family circumstance. Therefore, he will pay the amount of $3,000 penalty units or fine to this Court.
    
14. Regarding whether the court should disqualify the defendant’s driver’s licence; I am informed by the defendant that he is a self-employed person, working as a casual taxi driver, and his family’s welfare depends entirely on his earnings from his taxi employment. Therefore, in my view, if I am to order a disqualification of his driver’s licence today, it would not only affect him, but his innocent family as well.
    
15. Furthermore, considering the challenges that covid-19 has impacted on the economy, regarding cost of living, and the difficulty of securing an alternate job, a disqualification of driver’s licence would serve him and his family a devastating punishment and effect. Thus, I make no order for disqualification of his driver’s licence, but warn him not to repeat this offence in the future, or he will suffer the backlash of the law.

Sentence orders

1. The defendant, Mr. Peter Fanasia is hereby sentenced to pay a fine of $3,000-00.
   
2. Fine must be paid by 8^th October 2021 at 4:30pm. A sufficient time considering the financial impacts and effects of covid-19.
   
3. In default of payment, 6 months’ imprisonment.
   
4. No order for disqualification of driver’s licence.
   
5. Conviction entered.
   
6. Right of appeal applies within 14 days.
   
7. Order accordingly.
   

THE COURT

..................................................

MR. LEONARD B. CHITE

Principal Magistrate

Central Magistrate Court

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^[1] [2016] SBMC 25; Criminal Case 613 of 2016 (27 September 2016)
^[2] [2018] SBMC 7; Criminal Case 289 of 2018 (29 March 2018)
^[3] [2017] SBMC 7; Criminal Case 255 of 2017 (29 March 2017)
^[4] CMC-Criminal case 547 of 2020
^[5] SBMC Criminal Case 667 of 2020
^[6] Unrep. Criminal Case No. 11 of 1989