HIGH COURT OF SOLOMON
ISLANDS
HC-CRRC No: 133 of 1999
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REGINA
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-V-
TIMOTHY SULEGA
HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
CRIMINAL REVIEW CASE NO. 133 OF
1999
DATE OF REVIEW: 23RD APRIL
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PALMER J.:
This case was initially brought up for review under section 46 of the
Magistrates' Courts Act, for purposes of reviewing the order of the
Principal Magistrate issued on 18th December 1998, which had ordered removal
of disqualification of Timothy Sulega from holding or obtaining a licence.
The accused Timothy Sulega had been disqualified
from holding or obtaining a
licence for twelve (12) months on 3rd March 1998 following a conviction on a
charge of driving
whilst unfit to drive through drinks. After perusing the
file however, I have decided to make some general comments on the
case as a
whole although I appreciate I am functus officio in respect of the
sentence and order of disqualification issued on 3rd March 1998. The purpose
of these comments is to
ensure Magistrates are aware of what can and should
be done in the future if a similar case arises. I should also point out
the
file was not earlier brought up for review as there was nothing on the
returns to give me concern to request that
it be brought up. On the face of
it, there is nothing wrong with the sentence and order imposed. However,
having now
had the opportunity to peruse the file, I feel there are certain
matters which needed to be highlighted for future purposes.
<
The accused, Timothy Sulega had
been charged with the offence of driving whilst unfit to drive through
drinks contrary
to section 42(1) of the Traffic Act (now section 43(1) of
the Revised Edition 1996). From the start it must be pointed out
that this
is a serious offence. The facts then go on to read as follows and I quote
from the typed statement submitted
to court by the Police Prosecutor:
"On the 14th day of February
1998 about 23:00 hrs defendant Timothy Sulega was driving ming motor vehicle reg
No A-5562
travelling at westly (sic) direction along Mendana Avenue. However
the defendant was travelling at that time impaired on his
driving, started
to drive fast on a wrong lane right travelling westly direction.
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Just in frf the Honiara
Casino, the defendant could not controlntrol the vehicle, because he was unfit to
drive, as a
result collided to a taxi reg No. A 5268 with severe damages.
Passengers Joyce Alasina was injured. The matter was reported
to Kukum
Police, police carried out examination on defendant and discovered Timothy
Sulega was unfit to drive at that
time. His eyes blood shot, his breath
strongly smelt of intoxicating liquor.
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Defendant was placed in cell
for further investigation, and later bailed to courtcourt for 3rd March 1998."
Already one can see that the
facts revealed a serious case of driving whilst under the influence of
liquor. There was
speed involved, driving on the wrong side of the lane, and
a serious accident occurred causing serious damage to another vehicle
and
injuries to an innocent passenger in the other vehicle. The accused admitted
the offence and was fined by the learned
Magistrate for $150-00 and
disqualified for 12 months under section 29 of the Act. The learned
Magistrate noted the following
in favour of the accused: that the accused
was a first offender, entered a guilty plea and was remorseful. At the same
time he noted the seriousness of the offence. Unfortunately the sentence
imposed did not well reflect the seriousness of
the offence when all had
been said and weighed. As I have said earlier, whilst on one hand the
sentence imposed was not
wrong, it was more on the lenient side. A fine of
$300-00 in the circumstances would not have been excessive, or a short sharp
custodial sentence of one to two months. It will be noted the maximum fine
under section 43(1)(b) had recently been increased
to four hundred dollars
(for a Magistrate's Court) from $150-00 previously, to reflect the
seriousness with which Parliament
viewed this offence. The courts must
therefore continue to maintain that same vigilance when dealing with such
offenders.
If a person's means are to be taken into account when considering
the level of fines, then perhaps more time can be given,
say a fine of
$300-00 payable over a period of 28 days; the first half of $150-00 to be
paid in 14 days and the balance
the remaining 14 days. I hope what is said
above will not be taken as an unfair criticism but more in the light of a
specific illustration and as a guideline for dealing with similar cases in
the future.
The Police are doing their part
in arresting, charging and bringing such offenders to c the public are
cryincrying out
for tougher penalties, the courts however must continue to
maintain a balanced approach, and that includes balancing the sentence
to be
imposed. As a guideline the minimum fines to be imposed on drunk driving
offences should not be less than $200-00.
Only for very good reasons should
they go below $200-00 and must be stated in the sentence. For second
offenders, I would
expect a custodial sentence to be imposed unless there
are exceptional reasons for not doing so.
THE ORDER OF DISQUALIFICATION
As well as being fined, the
accused was disqualifor the statutory minimum period of twelve months
with with effect from
3rd March 1998. Note this is the minimum period. If the
court considers it appropriate to impose a longer period it most certainly
can do so under section 29(1) of the Traffic Act. The expiry date of that
disqualification order would have been on 3rd March 1999.
THE ORDER FOR REMOVAL DISQUALIFICATION
On 18th December 1998
(approximately 9 months later), the accused applied to the court to his
disqualificationation removed.
He did not state what provision of the Traffic Act
he was relying on. The learned Principal Magistrate dealing with the
application also did not state what provision of
the Act he was relying on
in his reasons to grant the application. It is always a useful practice to
get the party or
person making an application to state what provision of the
law he/she is relying on and also for the court to be aware what
powers it
has in respect of that matter.
From my perusal of the Traffic
Act it appears section 31 of the Traffic Act was relied on for the
application and also relied on by the learned Magistrate to grant the
application. The relevant
provisions for our purposes are subsections 31(1)
and (2). I quote:
"31.-(1) Subject to the provisions of this sectionction, a person who by an order of a court is
disqualified for holding
or obtaining a licence may apply to the court by
which the order was made to remove the disqualification and on any such
application the court may, as it thinks proper, having regard to the
character of the person disqualified and his conduct
subsequent to the
order, the nature of the offence, and any other circumstances of the case,
either by order remove the
disqualification as from such date as may be
specified in the order or refuse the application.
(2)
&nbssp; Nl appiocation shal shall be made under the foregoing subsection for the
removal of a
ualifon bethe expiration of whichever is relevantevant of t of the
he
following periods from the date of the order by
which the disqualification
was imposed, that is to say
-
(a) &ntwo years, if the
d disqualification is for less than four years;
(b) hale of t e
peri period of the disqualification, if it is for less than ten years but not
less than four
years;
(c) five years in any other
case;
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and in determining the
expiration of the period after which under this subsection a person may
apply for the removal of
a disqualification, any time after the conviction
during which the disqualification was suspended or he was not disqualified
shall be disregarded."
Subsection 31(1) of the Traffic
Acs provide for an application to be made to the court for reor removal of
the disqualification
imposed. However, and this is the crucial part,
subsection (2) imposes limits under which an application can be made. A
disqualified driver therefore does not have right to apply at any time, and
the court does not have right to entertain any
such application unless it
falls within those limits set by law. What are those limits?
The limit set under paragraph
31(2)(a) and which e relevant part here is that, a person can only be
qu qualified to
apply under section 31(1) if at least two years of his
disqualification period had expired, and provided his order for
disqualification was less than four years. So if a person had been
disqualified for say three years, the minimum period of
two years must have
expired before he can apply under section 31. But what if his
disqualification period is only 18
months? The same rule applies. He must
have had two years before he can apply. It follows a person disqualified for
anything
less than two years cannot apply for removal of his
disqualification (see Wilkinson's Road Traffic Offences Eighth Edition
page
646). There is no discretion involved. If the accused disagrees his only
recourse is by way of appeal to this Court.
In this case, where the accuse was disqualified for only twelve months, he does not qualify to apply under
sectioection 31
of the Traffic Act for removal of his disqualification and the
learned Principal Magistrate had no right to grant same under the said
section.
The order granted by the learned Principal Magistrate accordingly
on 18th December 1998 is null and void and must be set aside.
The driving
licence (D/L No. 26023) of the accused must be returned to the learned
Principle Magistrate so that the error
can be corrected.
I note the twelve months period
for which his licence was disqualified had already lapsed on 3rd March 1999.
I had considered
re-imposing the remaining part of the period of
disqualification from 18th December 1998 to 3rd March 1999 but realise I
have no power to do that. The error in this case accordingly must lie where
it has fallen.
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ORDERS OF THE COURT:
1. ;&nbssp; bET ASIDE THEE THEE THE
ORDER OF THE MAGISTRATE'S COURT DATED 18TH DECEMBER 1998 REMOVING
DISQUALIFICATION
OF TI SULEspan>/p>
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0">
2. ;&nbssp; bIRECT THAT THAT THAT THE
DRIVING LICENCE BE ENDORSED BY THE MAGISTRATE'S COURT TO REFLECT THE CORRECT
PERIOD OFUALIFON OFVE MO
THE COURT
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