IN THE HIGH COURT OF FIJI
(SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 76 OF 1992

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT

A N D

SUKENDRA SINGH
s/o Deo Narayan
RESPONDENT

Mr Forster for the Appellant
Respondent in person

JUDGMENT

In this case the State appeals against the Sentence of the Magistrate Court imposed against the Respondent on 11th August, 1992 upon the following grounds.

(i) That the learned Magistrate erred in law in disqualifying the respondent subject to the proviso under group two as set out aforesaid. It is the Petitioners respectful submission that such condition is not permissible at law under the provisions of Section 48(14) Traffic Act Cap 176 as amended by Traffic (Amendment) Cap 20 of 1986.

(ii) That the sentence was manifestly lenient.

On 9th August, 1992 at about 12.30pm Accused was driving vehicle BY 101 on Edinburgh Drive. Police Officer Rupeni saw an extra passenger in the front seat of the car. He stopped the car and found the Driver strongly smelt of liquor. He underwent a breath test and his breath analysis showed 90 microgrammes of alcohol in excess. He was arrested and taken to the Police Station where he was interviewed and charged.

On 11th August, 1992 Respondent pleaded guilty in the Suva Magistrate's Court and was fined $50 in default 14 days and was also disqualified from driving for a period of 18 months except between 6am to 7pm from Monday to Saturday Group 2 vehicles.

At the hearing of the appeal Mr Forster for the State indicated that the State was not so much concerned with the fine of $50 but was very much concerned with the conditional disqualification imposed by the Court below. He submitted that Section 48 (14) is clear cut and any disqualification made under any of its provisions is mandatory and consequently the learned Magistrate cannot impose any condition to such disqualification and therefore not permissible at law.

The Respondent who appeared in person did not wish to make any submission in reply.

I agree with Mr Forster and accept that the Court below acted ultra vires when it made the order in relation to respondents' driving licence. The provisions in respect of which respondent was convicted did not confer any power in the Court below to make any condition to its order of disqualification. The disqualification is mandatory and any attempt by the Court below to do otherwise is ultra vires.

In the circumstances I will allow the appeal against the order of conditional disqualification made by the Court below. But since Respondent is a first offender and has been disqualified for almost 12 months and that the maximum period of disqualification under Section 48 (14) (a) (ii) is 2 years, I find that the period of 18 months disqualification imposed by the Court below was a little too high. I will, in substitution therefor, make an order of 12 months disqualification against Respondent from holding a driving licence.

Since the State was not particularly concerned with the fine of $50 and did not offer any argument against it I will leave it undisturbed.

S W Kepa
JUDGE

6th August, 1993.
HAA0076J.92S