R v Parsad [2021] SBMC 5; Criminal Case 240 of 2021 (29 April 2021)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Case No: 240 of 2021

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: JILLAH SAMBE PARSAD

Police Constable John Saugaro for Police Prosecutions

Mr Paul None for the Defence

Date of sentencing submissions: 27^th of April 2021

Date of sentence: 29^th of April 2021

SENTENCE

Back-ground

1. Jillah Sambe Parsad, you have been convicted for one count of Presence of Alcohol in a person’s blood. This offence, is contrary to section 43 A (1) (a) of the Road Transport Act. Cap 131 (as amended by the Police and Transport Legislation (Amendment) alcohol Testing) Act 2016.
2. The maximum penalty for this offence, is 10,000 penalty units or 12 months imprisonment^[1]. I need not stress the seriousness involved, since the figures along, are more than enough to signal what is at stake here.
3. As outlined in the (Police and Transport Legislation (Amendment) Alcohol Testing) Act 2016, the prescribed level of alcohol that one can have whilst driving a motor vehicle, is that of 0.05%^[2]. Any reading that shows a percentage that is beyond the prescribed level, would be seen to have committed an offence under the section identified in paragraph 1.
4. It has almost been 5 years since the amendment came into effect, regardless of that, people still think that they can just bend the laws.
5. This court will ensure that a clear message of both specific and general deterrence be once again sent out to you and the general public, reminding everyone of the legal consequences one would face, if they are too stubborn to respect the law as it is.
6. Our roads should be free from people who have “no care attitudes”, to ensure the safety of others.
7. On the 28^th of April 2021, I was supposed to deliver your sentence, however, due to the inconsistencies seen in you charge, and the agreed facts, I gave parties the chance to amend the facts.

Facts

8. From the amended agreed facts, I note that you were travelling back to your residence at West Kola, from the Golf Club, when you were stopped by the police, at the junction next to your residence. The time of the offending, was between 04:24hrs to 04:45 hrs. This means that it was before sunrise. You were taken back to the Kukum Police station, where tests were carried out on you, the final readings to which, showed a result of 0.167% of alcohol presence in your blood.

Analysis

9. The confusion that I get to hear many times in court is, whether the offence is committed by way of consuming alcohol while driving, as opposed to having a high percentage of alcohol in a person’s blood, whilst driving. The latter is a result of consuming alcohol hours or even a day before driving a vehicle along the public roads. It all depends on the blood type that an individual has, especially motor vehicle drivers.
10. I note that the distance from Golf Club, which I take judicial notice to be located at Ranadi, East Honiara, to West Kola, in Central Honiara, is somewhat beyond six kilometres.
11. This in my view would mean, that you drove for over six kilometres, risking the lives of those who were sober, and were also present along the road you followed, during the time in question.
12. The reading shown in your charge, as per basic mathematical calculations, is more than two times, the prescribed level of 0.050%.
13. Not only did you commit an offence, but you risked your own life, and that of other road users who may have been traveling along the road at the material time. A good number of our road accidents, are all alcohol related. Some have cost the lives of innocent people, and others have cost substantial amounts in fixing unnecessary damages that have been done to other vehicles, as well as government infrastructures, such as road rails and light posts.
14. Drivers should refrain from relying on their driving expertise as a leverage that will assist them when caught up in situations that are likely to result in accidents. I note the remarks in the case of Cheffers v Regina, where the court stated, and I quote:

“Driving whilst under the influence of liquor is an 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^[3]”.

15. I need not explain what the court was trying to put across, given how clear and simple the wordings are.
16. The public, especially, you Mrs Parsad, need to be reminded, of the importance of complying with our road safety laws.
17. The prevalence of this offending, is again another concern, that relevant authorities need to address. While the court continues to impose sentences on offenders in this regard, similar cases keep on turning up in court, on an average of monthly basis.
18. Effective awareness in my view, is still lacking. Even if awareness’s are being done, but the very people condemning this very act, are secretly or publicly engaging in this offending, then we are wasting time and government resources in advocating and punishing people in this regard. The views shared by the court should also be consistent all throughout the chain involving police officers, judicial officers, as well as our legislators.
19. Regardless of this, the court’s duty remains unshaken and will continue to point out the wrongs that must be corrected.
20. I hope it has become clear to you that driving in long or short distances, when you know that the amount of alcohol you have been consuming, is enough to result in a percentage that is way beyond the prescribed level, is an offence. Consuming a bottle of wine by yourself, in my view, can cause a person to be a little over tipsy, even consuming two to three glasses of wine can make a person tipsy, how much more, would consuming a bottle of wine turn out?
21. This afternoon, I hope that lessons have been learnt. I see that you are an adult person, one who should be living a life of example to those who look up to you.
22. I urge you to put a stop to this kind of behaviour, and for future purposes, ask someone who is sober, and has a valid driver’s license to drive your vehicle, once you find yourself in a similar situation.
23. In terms of sentence, I note how lawyers and prosecutors seem to be deciding the amounts in which the court should impose for a fine, without realising the factors that the court needs to first of all consider before reaching the appropriate sentence, and should a fine be considered, the appropriate amount to impose. Note that the type of sentence the court decides to impose, is entirely upon the court, with due consideration to the circumstances involved. Further note, that the maximum penalty identified under the (Police and Transport Legislation (Amendment) Alcohol Testing) Act 2016, is that of 10,000 penalty units or 12 months imprisonment for a first time offender. Hence, while the court encourages suggestions, the final say, is best left to the court.
24. On the 27^th of April, I was told, in addition to your mitigating submissions, that the amount the court should consider imposing on you, is one between 1,500 to 2,500, with a grace period of one or two weeks. While I take this as a factor to consider in terms of your financial position, the final say remains with the court.
25. The final sentence whether it be a fine or custodial in nature, must be one that triggers the need to respect and adhere to the law, and to turn away from the unlawful attitudes or mindsets that have caused you to turn a blind eye on the law in question.
26. This afternoon, I will ensure that messages of both specific and general deterrence, retribution, rehabilitation and prevention, are echoed out.
27. This court highly condemns such offending, and hopes that having come across the justice system, you will refrain from such an offending again in the years to come.
28. I acknowledge the cases cited in terms of comparative sentencing, however, as I always state in my sentences, cases must always be determined based on their own set of facts and circumstances, to ensure a proportionate outcome.
29. This afternoon, I will pay due consideration to the following:
    • Early guilty plea;
    • Remorse;
    • No previous conviction; and
    • Family circumstances.
30. I will also consider the following:
    • The seriousness of the offending as reflected in the maximum penalty;
    • Your decision making or level of culpability, which in such cases, I always find at the higher end of the seriousness involved;
    • Alcohol; and
    • The time of the offending.
31. Having said this, I wish to make reference to the case of Joel Likilia & Allen Kokolabu v R, where the court 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 (Emphasis added)^[4]”.

32. The reason for citing this case, is to remind parties, the tasks that a Magistrate, and or, Judge is entrusted with in determining a just and fair outcome.
33. Hence, with what is before me, I am of the view that imposing a fine would be appropriate. Furthermore, I also believe that invoking sections 29(1) and 29 (8) of the Road Transport Act, is timely and necessary especially in terms of specific deterrence, as well as general deterrence. Section 29 provides for disqualification of driving licenses. The penalties and Miscellaneous Amendment Act 2009, outlines the types of traffic offences and how disqualification can be entered upon persons convicted. I note that orders in this regard are either obligatory, mandatory or discretionary in nature, depending on the offence, one is convicted for.
34. I refer to the case of Howard Haomae v R, where 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)^[5]”.

35. In my view, and having paid due consideration to your personal circumstances, as provided for in your legal representative’s submission, I fail to see any special circumstance that warrants imposing a period that is below 12 months.
36. Hence, having said this, I now order as follows:

ORDERS:

(1)

Fine

(i) For the count of presence of alcohol in a person’s blood, a starting point of $4,000, a deduction of 1,300 to reflect the mitigating factors involved, resulting in a fine of $2,700.00,
(ii) Payment is due by the 17^th of May 2021, in default, six months imprisonment.

Disqualification

(i) That sections 29 (1) and 29 (8) of the Road Transport Act be invoked for a period of 12 months.

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

Dated this 29^th day of April 2021.

____________

THE COURT

Emily Z Vagibule- Magistrate

---

^[1] 43 A (1) (a) of the Road Transport Act. Cap 131 (as amended by the Police and Transport Legislation (Amendment) alcohol Testing) Act 2016.
^[2] Part 4A, 111A, (Police and Transport Legislation (Amendment) Alcohol Testing) Act 2016.
^[3] (Unrep. Criminal Case No. 11 of 1989)
^[4] [1998/89] SILR
^[5] (Unrep. Criminal Appeal Case No. 106 of 2001)