R v Etomea [2021] SBMC 3; Criminal Case 18 of 2021 (29 April 2021)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 18 of 2021

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: LORENZO ETOMEA

Police Constable Florence Hiroshachi for Police Prosecutions

BETS Legal Services for the Defence

Date of sentencing submissions: 27^th of April 2021

Date of sentence: 29^th of April 2021

SENTENCE

Back-ground

1. Mr Lorenzo Etomea has pleaded guilty by way of writing, for five (5) traffic related offences. He was further convicted following a letter received by the court on the 23rd of March 2021. He was formally represented by Mr Ben Etomea of BETS Legal Service, but ceased to act in this regard, following verbal orders of this court, dated on the 1^st of April 2021 with regards to issues of conflict of interest.
2. Lorenzo Etomea had been dispensed from appearing in court following his application on the grounds that he is a student and his likelihood of not attending his court case. His application was done in pursuant to section 86 of the Criminal Procedure Code of the Solomon Islands.
3. Suffice to say, his letter, dated on the 23^rd of March 2021, was indirectly conceding to have the court sentence him in his absence.
4. On the 27^th of April 2021, a lawyer working at the BETS Legal Services, was supposed to appear, purposely to read out the mitigating submissions on behalf of Lorenzo Etomea, however, I was informed by way of letter that he would not be able to appear, given that he had to make a visit to the clinic.
5. I then informed Prosecutions, in the presence of Mr Ben Etomea, who now only appears as the father of the Accused, that a written sentence will be delivered on the 28^th of April. However, on that date, I informed parties that the sentence would not be delivered, simply because I do not have the facts relating to the offences that Mr Lorenzo Etomea, is charged for.
6. While his letter dated on the 23^rd of March 2021, confirms guilty pleas for each of the offences he is charged with, I do not have the evidence to justify any conviction in this regard.
7. Since the Prosecutor had informed me prior to submitting her, sentencing submissions, that aset of agreed fact had been sent to the firm acting for Mr Lorenzo Etomea with no feed backs, I then gave them the opportunity to at least provide a copy of the summary of facts, or the agreed facts. Prosecutions submits that since Me Etomea has agreed to enter guilty pleas that would speak for the agreed facts.
8. Under any circumstance, all evidence coming before the court must and always be in accordance to the Evidence Act 2009.
9. Hence having considered the guilty plea, and the summary of facts later tendered by Prosecutions, the fact that these are all regulatory offences and the nature of each offending, a conviction is now entered.

Offences

10. For purposes of this sentence, I will outline the offences that Mr Lorenzo Etomea, has been charged, and convicted for, as follows:
    • (a) Count 1: Failing to display vehicle license, contrary to section 13 (1) of the Road Transport Act;
    • (b) Count 2: Driving unlicensed motor vehicle, contrary to section 7 (1) of the Road Transport Act;
    • (c) Count 3: Driving uninsured motor vehicle, contrary to section 8 (1) of the Motor Vehicle Third party Insurance Act;
    • (d) Count 4: Drivers to be licensed, contrary to section 20 (1) of the Road Transport Act; and
    • (e) Count 5: Taking vehicle without authority, contrary to section 59 (1) of the Road Transport Act.

Maximum Penalties

11. As per the Penalties and Miscellaneous Amendment Act 2009, Road Transport Act, and the Motor Vehicles Third party Insurance Act, the maximum penalties for each of these offences are as follows:
    • (a) Count 1: 5,000 penalty units or six months imprisonment or both. Previously, the fine was only fixed at $200, along with an alternative of six months imprisonment.
    • (b) Count 2: 5,000 penalty units or six months imprisonment or both. The previous fine was $500, and an alternative of six months imprisonment.
    • (c) Count 3: 150 penalty units or 4 months imprisonment or both;
    • (d) Count 4: 5,000 penalty units or six months imprisonment or both; and
    • (e) Count 5: 5,000 penalty units or six months imprisonment or both.

Analysis

12. All five of these offences, are among those committed on a prevalent basis. Person’s involved in these kind of offending’s clearly have no respect for the law, and should be reminded of the legal consequences they could face.
13. The facts tendered in relation to this matter, shows that on the 27^th of December 2020, the Accused, Lorenzo Etomea was driving a maroon Toyota RAV4, which bears the registration number: MC-2103.
14. The vehicle was pulled over along the road near the Telekom Recreational field it was found that there was no license displayed on the windscreen. At the Kukum Police Station, it became known that both the vehicle license and third party insurance have already expired on the 29^th of February 2020, and 13^th of May 2020 respectively.
15. It was also found that Lorenzo Etomea does not have a driving license. The accused’s father was contacted where he confirmed that he did not give Lorenzo the permission to drive the said vehicle.
16. From what is before me, it is clear that Mr Etomea drove a vehicle that has been without a valid license and third party insurance for over 6 months. Further to that, facts also show that Mr Etomea does not have a driving license at the material time.
17. I do not know the reason as to why you the vehicle was driven by Mr Etomea, when he knew that its license and third party insurance have already expired, and that he himself does not have a driving license.
18. The fact that these kind of offences are being committed on a prevalent basis, it a concern that relevant authorities should rise to address. Why is it that people are so confident in committing these offences, when they know that their actions are against the law?
19. The prevalence of this offences is an indicator that someone somewhere is not doing his or her job according to the relevant laws. While it is the duty of this court to ensure that laws are being interpreted accordingly and are respected by all members of the public, there should also be strict measures taken by other relevant authorities to ensure there is a high sense of respect for the law.
20. This afternoon, due consideration will be paid to the following:
    • The early indication of a guilty plea;
    • The fact that you are a first time offender;
    • Youthfulness; and
    • Personal circumstances.
21. On the other hand, I will also give due consideration to the following;
    • The seriousness of each offending, as reflected through their maximum penalties;
    • Your level of culpability, which I find to be at the higher end of the seriousness involved; as well as the prevalence of these offences.
22. The public, especially Mr Lorenzo Etomea must be reminded of the legal consequences they will face, should they fail to respect and take the law seriously. A young person like Mr Etomea, should try as much as possible to avoid ending up on the wrong side of the law. I hope this is a lesson that would remain with Mr Etomea, as he makes his way towards the early stages of his adulthood.
23. In terms of sentence, I find the views shared in the case of R v Ball where, Hilbery J, in his judgment of the Court of Criminal Appeal, commented at pages 165 – 166, as fitting in this regard:

“In deciding the appropriate sentence a Court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living' as referred to in Anna Langley v R (supra)^[1]”.

24. While it is my duty to ensure that offenders are being punished for their wrongdoing, I must also consider the importance of assisting him or her to turn away from such negative mindsets, and to find a place within the lane of being a good law abiding citizen.
25. The principles of sentencing will remain the pillar of ensuring that justice is correctly served.
26. While both parties have seem to suggest and think that the appropriate sentence in this regard, is that of a fine, parties must be reminded that the final say belongs to the court. Cases should and must be dealt with based on their own set of merits before a conclusion can be reached. As stated in the case of Regina v Soniluvu, the Road Transport Act, does not clearly say, as to which sentence the court should impose at the first instance, whether it be that of fine, or a custodial sentence^[2].
27. In my view, and having identified the aggravating factors earlier, the factor giving rise to the seriousness involved in this case, is that of Mr Etomea’s decision making. He knew about the status of the vehicle, and no doubt knew that he himself does not have a driving license, but continued to carry out his intentions of doing what the law forbids.
28. With this, I believe that the appropriate sentence that will assist in ensuring that both retribution and rehabilitation are achieved, it that of a fine. I strongly believe that not only would retribution and rehabilitation be achieved, but most importantly specific and general deterrence.
29. At this stage, I will now refer to the case of Joel Likilia & Allen Kokolabu v R, in guiding me towards the appropriate amounts that I should impose, where it is stated that:

Sentencing is not a process that follows exact mathematical rules. Circumstances and people vary and it is undesirable to consider such comparisons as more than a very imprecise guide (Emphasis added)^[3].

30. Whilst I note that submissions did not go as far as seeking a disqualification under section 29 (1) as read with 29 (8) of the Road Transport Act, I note that making an order in this regard, is discretionary upon the court. It is my view that in order to send out a clear message to all those intending to continue engaging in such offendings, especially, those who are yet to obtain a driver’s license, that section 29(1) and 29 (8) of the Road Transport Act be invoked.
31. Hence, with all the relevant factors and circumstances involved, I now make the following orders:

ORDERS:

(1)

Fines

1. Count 1- starting point of $1000, a deduction of $200 to reflect the mitigating factors, resulting in a fine of $800.00, due by May 31, 2021, in default 40 days imprisonment;
2. Count 2- starting point of $2000, a deduction of $800 to reflect the mitigating factors, resulting in a fine of $1,200.00, due by May 31 2021, in default 3 months imprisonment;
3. Count 3- starting point of $100, a deduction of $50 to reflect the mitigating factors, resulting in a fine of $50.00 fine, due by May 31 2021, in default, 5 days imprisonment;
4. Count 4- starting point of $2000, a deduction of $700 to reflect the mitigating factors, resulting in a fine of $1,300.00, due by May 31 2021, in default 3 months imprisonment; and
5. Count 5- starting point of $1000, a deduction of $200 to reflect the mitigating factors, resulting in a fine of $800.00, due by May 31 2021, in default, 40 days imprisonment.
6. All fines are to be paid consecutively;
7. Total Fine of $4,150.00 due by the 31^st of May 2021, in default, 6 months’ imprisonment.

Disqualification

1. Mr Lorenzo Etomea is disqualified from obtaining a provisional or driver’s license for a period of 12 months, if he wishes to apply for either licenses.

(2) Right of appeal applies to any party aggrieved, within 14 days from today.

Dated this 29^th day of April 2021.

_____________

THE COURT

Emily Z Vagibule-Magistrate

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^[1] (1951) 35 CrAppR 164
^[2] [2016] SBMC 25; Criminal Case 613 of 2016 (27 September 2016)
^[3] [1998/89] SILR