R v Elekai [2021] SBMC 6; Criminal Case 152 of 2021 (4 May 2021)

IN THE CENTRAL MAGISTRATES COURT

IN THE SOLOMON ISLANDS

Criminal Cases No: 152 0f 2021 & 219 of 2021

In the Criminal Jurisdiction

BETWEEN: REGINA

V

AND: JOHN ELEKAI

OBED ELEKAI

DAVID ELEKAI

PC Abel Maelanga standing in for PC Watson Akwai on behalf of Police Prosecutions

Mr Donation Houa for the Defence

Date of sentencing submissions: 4^th of May 2021, 9:00 am

Date of Sentence: 4^th of May 2021, 3:00 pm

SENTENCE

1. Before the court, are two separate matters where combined sentencing remarks will be handed down for all named Accused’s.
2. As identified on the top hand right corner of this written document, the cases which this court will pass sentence on, are criminal case number 152 of 2021, and criminal case number 219 of 2021.
3. The peculiar fact for both of these cases is that, one of the named Accused’s, is involved in both cases. Criminal Case number 152 of 2021, was first mentioned on the 9^th of March 2021, where the two Accused’s involved, John Elekai and Obed Elekai, were present and court bail conditions were imposed on them. The matter was adjourned to the 23^rd of March 2021 for the Accused’s to secure legal representation.
4. On the 30^th of March 2021, the second matter was listed for first mention, where Mr Obed Elekai was charged for the second time, along with another Accused, Mr David Elekai.
5. Directions were then made for the second matter to be relisted on the same date as the previous matter.
6. On the 20^th of April, Mr Houa of the Public Solicitors Office, confirmed that he will be acting for all the Accused’s in both matters. On the 23^rd of April, I was informed that the agreed facts are yet to be settled and that PC Akwai would not be available the week after for sentencing submissions, since he will be away in Tulagi. Both matters were then adjourned to the 4^th of May 2021, for the agreed facts to be settled, and for parties to present their sentencing submissions.
7. This morning, I received the agreed facts, and noted the following:

Agreed facts

8. The Accuseds, Mr Obed Elekai, Mr David Elekai and Mr John Elekai, are related as biological brothers. They are from Lalana Village, in the Langa langa Lagoon, Malaita Province.
9. The incident relating to David Elekai and Obed Elekai, was alledged to have occurred on the 3^rd of February 2021. At the material time, Mr Obed Elekai, was the owner of a Brown Toyota Bus, bearing the registration number: MB-9338. Facts further show that he was in Lalana, when he called his brother, David to drive the bus from his residence at Mbokona, to Vura 3. David was also asked to follow up on the vehicle license, since it had expired on the 31^st of January 2021. Obed claims that he only knows about the status of his vehicle license, but does not know that David’s driving license had already expired on the 15^th of October 2020.
10. Hence, it was around 9:30 pm when driving from Mbokona, that David was stopped by the Police. They found that the vehicle was without a valid license, and that the driving license of the person driving at the material time, had already expired on the 15^th of October 2020.
11. The second incident was alleged to have occurred on the 20^th of February 2021, where the Accused, John Elekai made a sudden U-turn at the Lawson tama junction, and was arrested by Police. Upon further investigations at the Kukum Police Station, it was found that the vehicle license was valid until the 30^th of April 2021, however, it was Mr John Elekai, whose driving license had already expired on the 20^th of November 2020.
12. By then, Mr Obed Elekai, had arrived from the village, and was charged for both incidents, along with David Elekai and John Elekai.
13. For some unknown reasons on my part, I note that it was second incident that was first registered in court, as opposed to the first incident.

Charge

14. For purposes of this combined sentence, I will outline the charge against each Accused, as follows:

219 of 2021

David Elekai- Count 1, driving unlicensed motor vehicle, contrary to section 7(1) of the Road Transport Act;

Count 2, driving without a valid driver’s license, contrary to section 20 (2) of the Road Transport Act.

Obed Elekai- Count 1, permitting unlicensed motor vehicle, contrary to section 7 (1) of the Road Transport Act;

Count 2, permitting unlicensed driver, contrary to section 20 (2) of the Road Transport Act.

152 of 2021

John Elekai- Count 1, careless or inconsiderate driving, contrary to section 40 (1) of the Road Transport Act;

Count 2, drivers to be licensed, contrary to section 20 (1) of the Road Transport Act.

Obed Elekai- Count 1, permitting unlicensed driver, contrary to section 20 (2) of the Road Transport Act.

15. As correctly stated by PC Maelanga earlier this morning, all these offences carry a maximum penalty of 5000 penalty units each, or an alternative of six months imprisonment, or both.
16. I note from the submissions made on behalf of Mr Obed Elekai, as well as paragraph 5 of the agreed facts, that he was not aware of the status of David Elekai’s driving license. If this truly is the case, then Mr Houa should have advised his client to enter a not guilty plea, to allow evidence to be adduced before the court, by way of trial. To raise such a defence during the sentencing stage, would not be proper, hence given the admissions made in the agreed facts, I will only enter conviction against Mr Obed Elekai, for the count of permitting unlicensed motor vehicle, and further vacate the guilty plea for the count of permitting unlicensed driver in relation to David Elekai, replacing it with a not guilty plea.
17. As for Mr David Elekai and John Elekai, conviction is hereby entered accordingly, based on their guilty pleas and the agreed facts tendered.

Maximum penalties

18. The maximum penalties for the offences in which convictions have been entered against, are as follows:

(a) Permitting unlicensed motor vehicle, 5000 penalty units or six months imprisonment or both;
(b) Permitting unlicensed driver (John Elekai), 5000 penalty units or six months imprisonment or both;
(c) Careless or inconsiderate driving, 5000 penalty units or six months imprisonment, or both.

19. I need not further elaborate on how serious these offendings are, since the maximum penalties identified, are more than sufficient, to signal the seriousness involved. As stated at paragraph 19 in the case of Regina v Kemakeza:

“The level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed^[1]”.

20. I note that the maximum penalties identified above, are some of which that are found on the mid-range of the list of serious cases involved under the Road Transport Act.
21. Time and again, motor vehicle owners and driver, have been asked by both the police and the courts, to adhere to our national traffic laws. Regardless of this, traffic laws continue to be breached.
22. It is of high significance, that the rules and guidelines upheld by the Works Department and the Inland Revenue Department in the past, be observed again, to ensure, that the only person’s issued with driver’s licenses, are those who have passed both the written and practical examination for driving. No driving license should be issued if only the driving test was passed, and not the written test or examination. Nowadays, responsible authorities are very slack, or in other words, are in need of dire reform.
23. Obviously, most of our public transport drivers lack both the knowledge and respect for our governing traffic rules and regulations.
24. Drivers must be reminded and should fear the legal consequences they will face, if found in conflict with our traffic laws. This then calls for the imposition of strong messages of both specific and public deterrence.

Aggravating factors and mitigating factors

25. The aggravating features which I find for all counts in both matters, excluding the one Obed Elekai where his guilty plea was vacated, are as follows:
    • The seriousness general as reflected through the maximum penalties;
    • The level of culpability for each named Accused, which I find to be at the upper hand of the seriousness involved; and
    • The prevalence of these offendings.
26. The mitigating factors are as follows:
    • The early guilty pleas entered;
    • Remorse;
    • First time offender;
    • The cooperation and faithfulness of each Accused in attending to their cases in court;
    • Bread winner;
    • Family circumstances.
27. All these factors or features are very important in assessing the type of sentence this court should impose. Further to this, the facts tendered, also play a significant role towards reaching the appropriate sentence.

Analysis

28. For the offence of permitting unlicensed motor vehicle and permitting unlicensed driver, in relation to Mr John Elekai, the responsibility to ensure that the driving licenses of persons driving his or her vehicle are still valid, is always on the shoulders of the vehicle owner.
29. Obviously, it is an offence to permit a vehicle that is without a valid vehicle license to be driven along our public roads, by someone whose driving license has been expired.
30. There are procedures that could be undertaken if one wishes to use an expired vehicle along the public roads. Section 8 of the Road Transport Act, clearly outlines the circumstances that would exempt vehicle owners from being liable, and the use of a special permit or permission, that could be applied for at the Kukum Traffic Department, and issued by the Inland Revenue Department. Failure to act under this permit, is a clear breach of the law.
31. I was not told as to the urgency of having the bus driven from Mbokona to Vura 3, when it was a known fact to both Mr Obed Elekai and David Elekai, that the vehicle license had expired, and that it was only common sense to note that driving such vehicles along the road is against the law.
32. As for the incident involving John Elekai, nothing suggests that Mr Obed Elekai does not know that John Elekai’s driving license had already expired. This would mean that he knowingly allowed a person who was not deemed worthy to drive a motor vehicle along the public roads, to drive his bus.
33. The same could be said for John Elekai, he knew that he does not have a valid driver’s license, but chose to drive the said bus, and as a result, ended up committing another offence that could have been easily avoided, had he stayed away from driving the bus.
34. You would note how all these offending’s are obvious results of one’s poor judgment and decision making.
35. The justice system needs to ensure that only honest vehicle owners and vehicle drivers are accommodated for. Our public roads also needs to be free off careless and inconsiderate drivers like John Elekai, to ensure the safety of other innocent road users.
36. I hope the convictions entered, would act as a lesson for all of you, to ensure that our traffic laws are not taken lightly.
37. The brief verbal submission made by Mr Houa, also touches on the issue of disqualification of licenses. He states that since the Accused’s are all bus drivers, the court should not consider disqualifying their licenses because this is their only means of income to support their families.
38. Disqualification of licenses are provided for under section 29 of the Road Transport Act. This section identifies the periods in which a driving license can be disqualified for, and the circumstances the court may consider to lessen the period of disqualification, from that of 12 months.
39. Under the Solomon Islands Magistrates Court Bench Book 2009, Table of Jurisdiction regarding the Traffic Act, you would note the maximum penalties for each offence, the jurisdiction for the different class of Magistrates and whether or not there is endorsement or disqualification. In terms of unlicensed motor vehicles, there is no endorsement or comments on disqualification of licenses, except for driver’s to be licensed and careless or inconsiderate driving, where the law provides for endorsement under both circumstances and disqualification of licenses on a discretionary basis.
40. In the submissions for both Mr David Elekai and John Elekai, I have been asked not to invoke section 29 of the Road Transport Act. Reference was made to the case of Regina v Oli^[2] and others for Mr David Elekai. Mr Houa submits that there was no order for disqualification made in the case of Oli, hence this court should also make the same orders in the case of David Elekai.
41. The difference in light of the case of Oli is that, a permit had been applied for. Ms Waifo who appeared for that matter confirmed that the permit is only valid for 3 days. The permit had expired prior to the day of Mr Oli and his co-Accused’s arrest. Even if he was to apply for a new permit, it would not have helped, given that such permits would only be valid from Monday to Wednesday.
42. The obvious difference is that, the facts of the matter against Oli does show that a permit had been applied for unlike the one at hand and the circumstance that posed difficulty in applying for a new permit. In the case of David Elekai, he was not acting under a permit, and to make things worse, his driving license had expired on the 15^th of October 2020. This would mean that his driving license had been expired for 3 months, 19 days, but turned a blind eye on the law forbidding him to do so, and proceeded with his unlawful action.
43. As for Mr John Elekai, reference was drawn to the High Court case of Haomae v Regina, where Justice Palmer, as he was then, ordered that the 12 months disqualification of the Appellants driving license be set aside and that a fine be imposed. The peculiar facts arising from how the matter was handled by the court below, is that the Presiding Magistrate, went straight into disqualifying the Appellants driving license. What he failed to do was to ascertain the appropriate sentence, whether it be a fine or custodial sentence, before ordering that the driving license be disqualified.
44. I invite Mr Houa to read the High Court case of Regina v Tapoika, where Justice Bird stated that ordering a person’s driving license to be disqualified, is something that can only be done when the court enters conviction against the Appellant. In the case of Tapoika, the Magistrate discharged the Appellant pursuant to section 35 of the Penal Code and went on further to order that the Appellant’s driving license be disqualified for 12 months^[3].
45. The similarity can be seen in the case of Haomae and Tapoika, where orders for disqualification can only be entered when and after the sentence to impose is identified.
46. I also take into account that the case of Haomae was heard, over 8 years before the Penalties and Miscellaneous Amendment 2009 came into effect. While it is proper that all lower courts should and must comply with what is stated by the higher courts, I am always mindful that due consideration is paid to whether or not the particular case had not been appealed, in the event that the case was appealed and the decision was over-turned, due consideration must be paid to the remarks made by the Court of Appeal.
47. In this case, it has been almost over 19 years. The fact that this kind of offending is still prevalent, should ring a bell as to the mindset of people over the years, and the strict measures the court should and can take, to ensure that our laws are not only passed to be observed by a handful, and seen by the rest as some sort of myth or custom story.
48. Mr John Elekai, knowingly drove the bus, when he knew his driver’s license had expired for 2 months and almost 15 days. He then engaged in a manner of driving that falls under the act of careless or inconsiderate driving. Clearly, he was not thinking about other road users, but himself.
49. As for Mr Obed Elekai, I note how Mr Houa states at page 3 of his submission, that it would be a more serious scenario if the vehicle had expired a few months or years ago. I invite all likeminded lawyers to acknowledge, that all offences under the Road Transport Act are deemed under the law, as regulatory offences. Regulatory offences, are deemed as strict liability offences, hence, the act alone, renders one to be guilty as charged. Furthermore, the maximum penalties for the offences Mr Obed Elekai is charged with does reflect the seriousness involved.
50. At this stage, having weighed the circumstances and factors involved, I agree that a fine would be the best and appropriate option to consider, in terms of sentence.
51. As stated 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^[4].

52. I note that there are three different individuals involved, all with different personal circumstances. I also note the use of corvid-19, as a reason for the court to consider. In my view, the corvid-19 pandemic, should be used as a limit where one should not act beyond, and not as a defence to justify one’s own wrongdoing, especially in light of strict liability offences.
53. I understand the financial constraints that many have come to face, since the state of emergency declared by the Governor General in March 2020. This becomes all the more reason for one to be mindful of his or her actions, to avoid ending up in far worse situations, as compared to what he or she is already faced with.
54. I also note that while Mr David and John Elekai are both bus drivers, the chances that they may have been working without valid driver’s license, is high. Such dishonest practises are highly condemned by this court.
55. This afternoon, I will ensure, that while I should teach you all a lesson to never engage in these kind of unlawful actions ever again, I also urge you all to refrain from such actions and try as much as possible to take this experience as a form of rehabilitation on your part. A sentence focused on punishing an Accused, in my view does not quite reflect the existing sentencing principles, hence, it should also encourage offenders to turn away from their wrong doings and be in accord with the law, as highlighted in the case of R v Ball^[5]. With this, and having weighed the entirety of both matters, I now order as follows:

ORDER:

(1) Fine

219/2021

(a) (i)David Elekai: Count 1, a starting point of $2,500.00, deducting $1,300.00 to reflect the mitigating factors, resulting in a fine of $1,200.00, due by June 30, 2021, in default, 3 months’ imprisonment;

(ii) Count 2, a starting point of $2,500.00, deducting $1,200.00 to reflect the mitigating factors, resulting in a fine of $1,300, due by June 30, 2021, in default, 3 months’ imprisonment.

(iii) A total fine of $2,500.00, due by the 30^th of June 2021, in default six month’s imprisonment.

(a) Obed Elekai: Count 1, a starting point of $2,500.00, deducting $1,300.00 to reflect the mitigating factors, resulting in a fine of $1,200.00, due by June 30, 2021, in default, 3 months’ imprisonment.

152/2021

(a) (i)John Elekai: Count 1, a starting point of $2,500.00, deducting $800 to reflect the mitigating factors, resulting in a fine of $1,700, due June 30, 2021, in default, 3 months’ imprisonment;

(ii)Count 2, a starting point of $2,500.00, deducting $1,300.00, resulting in a fine of $1,200, due by 30 June 2021, in default, 3 months’ imprisonment.

(iii) A total fine of $2,900.00 due by the 30^th of June 2021, in default, six months imprisonment.

(b) Obed Elekai: Count 1, a starting point of $2,500.00, deducting $1,300.00 to reflect the mitigating factors, resulting in a fine of $1,200.00, due by June 30, 2021, in default, 3 months’ imprisonment.
(2) Disqualification of license
(i) I make further orders that section 29 (1) of the Road transport Act, be invoked in relation to Mr David Elekai and John Elekai, for a period of six months, with due consideration to driving as one of their means of income, starting from this date onward.

Dated this 4^th day of May 2021.

__________________

THE COURT

Emily Z Vagibule- Magistrate

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^[1] [2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008)
^[2] [2020] SBMC 22; Criminal Case 602 of 2020 (24 June 2020)
^[3] [2020] SBHC 11; HCSI-CRAC 693 of 2019 (10 February 2020)
^[4]
[5]