R v Wale [2021] SBMC 15; Criminal Case 675 of 2021 (1 October 2021)

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

Criminal Case No. 675 of 2021

REGINA

-v-

JOAN ATU WALE

Date of plea: September 29, 2021
Date of hearing: September 29, 2021
Date of sentence: October 1, 2021

Ephraim Pitasua for the Police Prosecution
Emy Rusi for the Defendant

SENTENCE

1. The defendant, Mrs. Joan Atu Wale is charged with two counts of traffic related offences, namely; Count 1, Driving Unlicenced Motor Vehicle contrary to section 7 (1) of the Road Transport Act, and Count 2, Driving Uninsured Motor Vehicle contrary to section 8 (1) of the Third Party Insurance Act. The defendant had admitted to the offence by pleading guilty to the charge. As such, a criminal conviction was thereby recorded. This are the reasons for her sentence.
   
2. Mrs. Rusi of counsel for the defendant had conceded to the summary of facts, thus, the tendering of facts by the prosecution. The facts reveal that on August 19, 2021 between 10:00 a.m. to 12:00 p.m., the Kukum operations team arrested the defendant, who was driving an unlicenced, and uninsured motor vehicle. It was accepted that the defendant’s vehicle drove into a police checkpoint and upon a comprehensive check, the police officers discovered that the vehicle licence on display had expired on June 30, 2021, and the third party insurance had also expired on June 29, 2021.
   
3. The maximum prescribed penalty for the two counts under Road Transport Act, and Third Party Insurance Act are as follows:
   
   1. Count 1 – Using unlicenced motor vehicle - $5,000 or 6 months imprisonment, or both such fine and imprisonment; and
   2. Count 2 – Using uninsured motor vehicle - $150 or 4 months imprisonment, or both such fine and imprisonment.
      
4. These are regulatory offences, thus, do not require comprehensive proving of ‘intention’ or mens rea. Instead, the unlawful act alone would constitute the offence. In addition to the maximum penalty, it is accepted to apply in the most awful type of offending. Certainly, the facts of this case falls below the extreme scale, hence, the need for the court to weigh on the unique bundle of facts with the apparent aggravating factors to establish the yardstick.
   
5. I am grateful for the assistance rendered by Mrs. Rusi of counsel for the defendant, in providing the court with a relevant case authority which should allow the court to distinguish it to the one at hand, in deciding on a proper sentence for the defendant.
   
6. In addition to what the prosecutions have submitted as aggravating factors, I find the following as serving identical purpose. First, the defendant works as an administration officer within the Ministry of Infrastructure and Development on the date of offence. The very department that administers and facilitates for the renewal of vehicle licences, specifically, in making sure vehicles are road worthy. She knew that the vehicle needs a permit before it can be used on a public road, instead she did the opposite. As an MID officer, she was in a position to set an example for other ordinary motorists, which she has deliberately departed from. Second, the vehicle licence had expired on June 30, 2021, and the third party insurance on June 29, 2021; almost 2 months apart. This was an ample time for her to renew the vehicle’s licence or perhaps, obtain a permit to use it on the road.
   
7. Mrs. Rusi of counsel for the defendant had submitted that, the defendant just acquired the vehicle back from a mechanic, who repaired the front screen. She submitted that it remained at the mechanic’s garage or place during the period of which it expires. Hence, could not renew it, until the date of offence. She stated that, she had the money for the renewal but it was diverted to the repair of front screen.
   
8. For her mitigation, counsel Rusi submitted that, she pleaded guilty at the first instance, which has saves time and resources. Her guilty plea has reflect a genuine remorse on her part as well. Second, the defendant is a first-offender. She is in her 50’s, and for the past 40 years or so, she has been a law-abiding citizen, until this mistake. She cooperated with police during the arrest, and during the court proceedings. Counsel submitted that, in view of the sentence method given in the case of R v Ogrady, the court should impose the same as the facts are similar.
   
9. In ascertaining the tariff for the offence as charged, counsel referred to the case of R v Ogrady^[1] (“Ogrady”). The accused pleaded guilty to five traffic offences, including, a count of vehicle to be licenced^[2]. The facts were that, in the early hours of 1st March 2018, the accused 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 breathalyzer test. His final test reading was 0.209% which was above the permitted level for driving. Police later discovered that the vehicle licence had expired, and that the defendant had just gotten the vehicle from mechanic the day before accident. 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. For the specific count of Vehicles to be licenced, the court had entered conviction without penalty. The reason being is that he just returned the vehicle from his mechanic the day before the accident occurred and therefore, this is not a deliberate failure to renew its license like other cases ordinary unlicensed motor vehicles cases.
   
10. In R v Farisi & others (“Farisi”), the defendants were charged with vehicles to be licenced, and permitting unlicenced motor vehicle. The facts were that, the vehicle was purposely driven to convey it to a mechanic, specifically, to fix the front wheel. The vehicle had been garaged at home for some time, hence, the failure to renew the licence. The defendants agreed that they had failed to obtain the three days permit. The court sentenced them to a fine sentence of $800 and in default of payment, 40 days imprisonment.
    
11. I wish not to entertain the sentencing method in Ogrady for few reasons. First, she is an officer of the MID, and know full well of the procedures leading up to renewal of a licence, and those relating to acquiring permits, so that unlicenced motor vehicles is allowed on the road. Second, there is a period of almost 2 months from when her vehicle licence and third party insurance were expired to the date of offence, an ample time for her to get a ‘permit’, or even better, renew the vehicle’s licence and third party insurance.
    
12. In my view, the facts before hand is much similar to Farisi. Having considered the facts of this matter, I agree that a fine sentence is appropriate. I must say that, there is an avalanche of such offence coming before this court, albeit the constant bold condemnation by courts, police and other stakeholders. I agree that a fine sentence is appropriate, but that it must resonate a clear message for the defendant to improve from her mistake, and for the public to understand that the court will continue to penalize offenders committing such offence for hefty fines, and when necessary, custodial term.
    
13. For her sentence remarks, I hope this sentence would serve a correction and reminder to her, that is, to acknowledge the responsibility placed on her as a Public Servant. While I may acknowledge that she is now a senior officer, the rule of law is no respecter of age, position, or title. Thus, she must remain conscious of these, and avoid being complacent and taking such obligations for granted.
    
14. After weighing the circumstance and merits of this case with that of Farisi, and due consideration to the aggravating and mitigating factors, I see it appropriate to impose a fine sentence today.
    

Sentence orders

15. I hereby sentenced the defendant, Mrs. Joan Atu Wale to pay the fine as follows:
    
    • (1) Count 1 – Motor Vehicles to be licenced - $800.00.
      
    • (2) Count 2 – Using Uninsured Motor Vehicle - $100.00.
      
    • (3) As such, the defendant must pay a total fine amount of $900.00.
      
    • (4) Fine must be paid by 15^th October 2021 at 4:30pm. A sufficient time considering the financial impacts and effects of covid-19.
      
    • (5) In default of payment, 40 days imprisonment.
      
    • (6) Conviction is entered.
      
    • (7) Right of Appeal applies within 14 days.
      
    • (8) Order accordingly.
      

THE COURT

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

MR. LEONARD B. CHITE

Principal Magistrate

Central Magistrate Court

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^[1] [2018] SBMC 7; Criminal Case 289 of 2018 (29 March 2018)
^[2] Section 7 (1) of the Road Transport Act