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Republic v Tokia - sentence [2004] KIHC 130; Criminal Case 35 of 2004 (7 June 2004)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case No. 35 of 2004

THE REPUBLIC

vs

KIAN TOKIA

For the Republic: Ms Eveata Maata
For the Accused: Mr Banuera Berina

Date of Hearing: 31 May 2004

REASONS FOR SENTENCE

Last Thursday I found the accused guilty of driving without due care. The Republic asked that submissions on sentence be delayed until Friday. Ms Maata wanted to draw my attention to a recent English authority to the effect that in fixing penalty the consequences of the careless driving should now be taken into account. It is the Court of Appeal decision in Derek Simmonds ((1999) [2010] EWCA Crim 1082; 2 Cr App R 18). The Court of Appeal decided that the principle enunciated in Krawec ((1984) 6 Cr App R (S) 367 @ 369) is no longer the law. That principle:

....the unforeseen and unexpected results of the carelessness are not in themselves relevant to penalty. The primary considerations are the quality of the driving, the extent to which the appellant on the particular occasion fell below the standard of the reasonably competent driver; in other words the degree of carelessness and culpability (quoted in Simmonds @ 20).

The Court of Appeal said that "the statutory context" in which Krawec was decided has been changed: "the current statutory framework is wholly different": the UK Parliament has now made it clear that the consequences of the driving should be taken into account in fixing penalty.

Krawec was decided within a statutory framework of offences of causing death by reckless driving, reckless driving and careless driving. The framework in the Kiribati Traffic Act 2002 is quite similar to the previous UK framework in which Krawec was decided: our offences are described as dangerous driving, negligent driving and careless driving. Given the differences between the present Kiribati Act and UK Act and the similarity between the present Kiribati Act and the previous UK Act, Simmonds may not be relevant in Kiribati. The old principle enunciated in Krawec of not taking the consequences of the driving into account is still good law in Kiribati.

However Parliament has provided in the Traffic Act 2002, by a combination of section 56(1)(a) and the definition in section 4 of "serious traffic offence" that for an offence involving a motor vehicle leading to the death or injury of a person the Court must disqualify the offender from holding a driver's licence for not less than five years.

An example of mandatory sentencing.

I venture two comments. First, that the minimum disqualification of five years would be regarded in many jurisdictions as severe. Secondly, that even the slightest injury to a person caused in an accident following which a person is found guilty of a traffic offence, be it a dangerous driving, negligent driving or careless driving, means a loss of licence for at least five years. I suggest that in some cases this is a very severe penalty indeed. I point out that it is any injury: the slightest injury is enough to lead to a five year suspension. Parliament has given the courts no discretion at all.

Whether this was realised I do not know but I now bring it to the attention of Parliament in case Parliament may care to reconsider the mandatory disqualification of five years at least in the case of an injury, however slight. By inserting the word "serious" before the word "injury" in section 56(1)(a) the courts would be given a discretion as to disqualification of licence where the injury could not be regarded as serious.

In the present case I fined the accused $200 and suspended his licence for five years.

Dated the 7^th day of June 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice