R v Mani [2021] SBMC 4; Criminal Case 167 of 2021 (28 April 2021)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 167 of 2021

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: ISHMAEL MANI

Police Constable Tex Riwa for Police Prosecutions

Mr Steven Weago for the Defence

Date of sentencing submissions: 23^rd of April 2021

Date of sentence: 28^th of April 2021

SENTENCE

Back-ground

1. Mr Ishmael Mani, you were arraigned on the charge of careless and inconsiderate driving, on the 21^st of April 2021. You then entered a guilty plea, and the matter was further adjourned for parties to work on the agreed facts and sentencing submissions.
2. A conviction was entered following the guilty plea and the agreed facts that were filed and tendered on the 23^rd of April 2021.
3. Today I will be delivering your sentence.
4. The offence to which you are convicted for, is one that carries the maximum penalty of 5,000 penalty units^[1], or six months imprisonment, or both^[2]. Previously, Parliament only passed a maximum penalty of $500.00^[3] for a first time offender in this regard. The alternative maximum penalty of six months remains the same. It was in the year 2009, that Parliament increased the maximum penalty to that of 5,000 penalty units.
5. The explanation for such increases might be due significantly to the continuous and prevalent involvement of people, in this very offending.
6. Parties would agree with me, that currently, we have so many vehicles running along our public roads, hence the need for extreme precaution, on the part of all motor vehicle drivers, as well as those using motor cycles.

Law

7. As stated I the charge itself, the offence of careless and inconsiderate driving, is contrary to section 40 (1) of the Road transport Act. this section states:

If a person drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road, he shall be guilty of an offence and liable to a fine of five hundred dollars or to imprisonment for six months, and in the case of a second or subsequent conviction to a fine of seven hundred dollars or to imprisonment for six months or to both such fine and such imprisonment^[4].

8. The proviso of this section, is very clear especially when it comes to the type of act that amounts to careless and inconsiderate driving, and the punishment one is likely to face, if convicted by the court.

Agreed facts

9. As per the agreed facts, parties state that you own a Corolla cab which is registered as MC-5045. This cab is used for taxi services. At the time of the offending, it was you who was driving the said cab.
10. The offending occurred at the Lawson Tama junction on the 4^th of February 2021. You were travelling on the easterly bound lane, and was intending to turn into China town, through the Lawson Tama junction. Upon reaching the waiting bay at Lawson Tama, you slowed down for a few seconds, it was when you picked up your speed to turn onto the westerly bound lane, that you got hit by a Nissan bus. The Nissan bus was travelling on the inner lane of the westerly bound lane.
11. Both vehicles were said to have sustained damages. The damages done to the Nissan bus was valued at SBD $2,000.00.
12. In terms of the damages, your cab was the one that had major damages.
13. Parties ended the agreed facts by stating that it was a rainy day.

Mitigating factors

14. The mitigating factors identified by your legal representative are as follows:

1. The early guilty plea entered which has saved time and resources;
2. Remorse;

100. Previous good character. In light of this factor, I asked you on 16^th of March 2021, when the matter was first called for mention, if it was the first time for you to appear before the court. This question was asked to ensure that the criminal process could be explained to you at the earliest. You replied stating that it was your second time in court. When asked as to what led you to court the first time, you stated that you were also involved in a previous driving case, where the court imposed a $400 fine on you. Since PC Riwa was also present in court when this admission was made, I was of the view that he should have taken note of that and should have also made further enquiries. I would take that this piece of information was not provided when you gave instructions to your lawyer. Hence, I would not give significant weight to this factor, and wish to remind Prosecutors the need of sending details regarding persons convicted, to the office responsible;

4. Collision was not premeditated. I was told, that the offending occurred due to your misjudgement of the distance and speed of the oncoming vehicle, or suffice to say, it was due to your failure and negligence to keep a proper lookout on the road, that the collision occurred.
5. Personal circumstances. I was also asked to consider some of the circumstances that you are already faced with, including the medical condition of your wife, which I am not properly assisted on, the fact that your only child is attending formal education, as well as the others who are relying on you for financial support, and the income you derive on a daily basis.

Aggravating factors

15. The sentencing submission tendered by Prosecutions seemed to have focussed more on the sentencing principles that the court should consider when passing sentence, rather than the factors which they deem to be aggravating in this regard.
16. From what is before me, I note that one of the factors that Prosecution should have highlighted, is that of seriousness generally. This is indicated through the maximum penalty.
17. The other factor that I also see here, is that of your level of culpability, which I find to be at the higher end of the seriousness involved.
18. Finally but not the least, I also note that the prevalence of this offending, is another factor that can be seen as aggravating in nature.

Analysis

19. From the submissions made, parties have both asked, if the court can impose a sentence of fine.
20. The type of sentence that a court imposes, is entirely based on its discretion, with due consideration to the facts and circumstances involved in the case.
21. As correctly pointed out by Principal Magistrate Augustine Aulanga, at paragraph 9, in the case of Regina v Soniluvu^[5], the Road Transport Act is silent as to which type of sentence the court should consider imposing at the first instance, whether it be a fine or a custodial sentence. This is significantly due to the fact that each case must be determined based on their own set of facts and matrix.
22. The offence of careless and inconsiderate driving, in my view, is a life threatening act, one that is capable of claiming innocent lives. Ones failure to make a proper lookout on the road, whilst driving a motor vehicle, or even a motor cycle, sometimes causes a ripple effect on so many people.
23. The courts have maintained their stance in condemning and imposing harsh sentences on offenders in this regard, with the intention of sending out a clear and strong warning to the general public, as to the consequences one would face if convicted in this regard. Regardless of the measures taken, people continue to commit this so-called act of careless and inconsiderate driving.
24. I note how parties have agreed that during the material time, it was raining. This then raises the question as to why the rainy condition did not indicate to you, the need to be more precautious and watchful behind the wheels. I was not told as to what the urgency was, that had caused you to engage in the manner of driving that ended up in the collision.
25. All innocent road users need to be protected from people like you, especially those who think they can just engage in any manner of driving, on the road. Already, our roads are narrow, not to mention the continuous increase of vehicles travelling along our public roads.
26. Every year, this country endures multiple fatal road accidents, hence when we still have the chance, all motor vehicle drivers, should learn from what has previously happened, to avoid causing anymore unnecessary damages or deaths.
27. While I was told that it was your vehicle that had sustained major damages, I still condemn you for your actions, because had you waited patiently in the waiting bay, you could have avoided the expenses incurred to amend the damages caused. I hope this has been a lesson to you, especially in terms of being considerate to other road users, and that of patience.
28. I note that cases have been cited to ensure consistency, however, parties should also note, that while comparative sentencing must be considered to avoid objectionable disparity, cases are better dealt with, based on their own set of facts and circumstances.
29. In light of the case of Mark Dennis, I note that the Accused was sentenced to a fine of $1,300.00, back in 2014. That sentence was imposed, almost 5 years after the penalties and Miscellaneous Amendment Act of 2009 came into effect. From the year 2014 to date, would almost be 7 years. If the court is to impose a sentence similar to that which was imposed almost 7 years ago, would mean that I condone such an offending.
30. Clearly, times have changed, and regardless of the years that have gone by, we continue to witness and hear about road accidents that are committed on a prevalent basis. The prevalence of these road accidents is a clear indicator, of how people who have no respect for our road laws and regulations, continue to have the benefit and luxury of driving along our public roads, and continuing to risk the lives of other innocent road users.
31. As for the case of Jack Oso, he was also charged for the same offence, and while he was also sentenced to a fine of $1,300, due consideration was paid to the length of time wasted before bringing the case to court. This once again reflects the need for cases to be dealt with based on its own merits.
32. This morning, I will ensure that you be put in a position that makes you feel responsible for your poor judgements and the need to always remember that you are not the only one using our public roads.
33. Having said this, I will consider your early guilty plea, the remorse that your lawyer has conveyed on your part, and your personal circumstances. In terms of you being a first time offender, my views have already been shared earlier where I note from your admission on the 16^th of March 2021 that you have been previously fined with the amount of $400, for an offence contrary to our traffic laws.
34. On the other hand, I will also take note of the seriousness of the offence, your level of culpability, which I find to be at the higher end of the seriousness involved, as well as the prevalence of this offending.
35. Having drawn weight to both the mitigating and aggravating factors, I believe that the circumstances involved does warrant a sentence of fine. In terms of the amount the court will impose, I am always adherent of the remarks uttered in the case of Joel Likilia & Allen Kokolabu v R, where his Lordship, Chief Justice Ward, as he was then, stated:

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^[6]."

36. As always, this court will ensure that messages of both specific and general deterrence, rehabilitation, retribution and prevention be signalled in the sentence reached.
37. I note that there were no submissions done in light of disqualification. Disqualification of licenses are provided for under section 29 (1) of the Road Transport Act.
    
38. I also note that making an order in that regard is discretionary. Due consideration must also be paid to whether or not a person’s employment depends significantly on driving, while I sympathize with the circumstances that you are already faced with, if true, I see fit that your offending does call for a disqualification of license to be done. I make reference to the case of Howard Haomae v R Palmer J commented at page 1:

The presiding Magistrate did not pass any sentence on the Appellant. It appears the order for disqualification was used as the penalty. This is not the correct approach. [...] The correct approach is first, to determine the appropriate penalty to be imposed, then go on next to consider whether an order for disqualification is mandatory under Part I or discretionary under Part II of the Schedule. If discretionary, he should then go on to consider the period of disqualification to be imposed taking into account the circumstances of the case, including the nature of the offence, the antecedents of the appellant or accused, and the possible effects on his job. For instance, if a person drives to earn his living, such as a bus driver or a taxi – driver, instead of ordering him to be disqualified for 12 months, the court might impose an order for disqualification for say 9 months, or instead of 6 months, 3 months.' (Emphasis added)^[7].

39. Hence, having weighed the entirety of the matter, and having given credit for the factors in favour of you, I now order as follows:

ORDER:

(i) For the count of careless and inconsiderate driving, a fine of SBD $1,500.00.
(ii) Fine is due by the 7^th of May 2021, in default of payment, 3 months’ imprisonment;
(iii) That your driving license be disqualified for a period of 6 months, commencing on this date.
(iv) Right of appeal applies to any party aggrieved I this regard, within 14 days from today.

Dated this 28^th day of April 2021.

_______________

THE COURT

Emily Z Vagibule-Magistrate

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^[1] Schedule 8, Penalties and Miscellaneous Amendment Act 2009, No 20.
^[2] Section 40 (1) of the Road Transport Act
^[3] Above n 2.
^[4] Above n 2.
^[5] [2016] SBMC 25; Criminal Case 613 of 2016 (27 September 2016)
^[6] [1998/89] SILR
^[7] (Unrep. Criminal Appeal Case No. 106 of 2001)