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Achari v The State [1995] FJHC 103; HAA0017d.95s (8 June 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA0017 OF 1995

BETWEEN:

JITEN ACHARI
Appellant

AND:

STATE
Respondent

Counsel: Mr. Raza for Appellant
Mr. Balram for Respondent

Hearing: 8th June 1995
Decision: 8th June 1995

ORAL DECISION OF PAIN J.

Before delivering my decision, I wish to advise Counsel and formally record details of an incident that occurred during the adjournment. A person who is known to me came to my chambers and I had no concern about that. However he was accompanied by another person who wished to speak to me about this present appeal. On learning this I immediately refused to speak to them and they left. I do not know what connection that person has with this case or what he wanted to say. I wish to record that I did not speak with him and nothing occurred that could have any bearing on my decision.

I will now deliver that decision.

Following a defended hearing, the Appellant was convicted in the Magistrates Court on a charge under Section 238 of the Penal Code of causing death by dangerous driving. He was sentenced to two years imprisonment. Surprisingly no period of disqualification was imposed but neither Counsel has made any submissions in respect of that.

The Appellant appealed against that conviction and sentence. At this hearing the appeal against conviction and the ground contained in paragraph 4(b) of the petition were abandoned. The sole ground of appeal is that the sentence is harsh and excessive having regards to the facts and circumstances of the case.

I must determine the appeal on the basis of the facts found by the Magistrate. Despite the strong criticism of those findings by counsel for the Appellant, they are conclusive in the absence of any appeal against conviction. However, the facts themselves are relatively sparse.

The elements of driving in a dangerous manner under Section 238 of the Penal Code require first a consideration of the circumstances under which the driving took place and secondly a consideration of the manner of the driving. The prosecution failed to adduce specific evidence on these matters and particularly on the type of circumstances specifically referred to in Section 238. These include the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road. Evidence ought to be adduced on such matters. They should also be addressed by the Magistrate in his decision as the manner of driving and circumstances of the case are elements of the offence.

In this case basic facts were established by the witnesses and statement of the Appellant. The incident occurred early in the morning on a street alongside the Suva Market. It it clear from the evidence, that there is more than one lane for vehicles travelling in the direction that the Appellant was travelling. There was activity in the area as people were bringing their goods to the market for sale. A carrier was parked adjacent to the footpath. It contained goods for the market. The deceased was standing at the rear of the carrier. The Appellant was driving a van along the roadway. He was intending to stop in this area. It was light and the road surface was wet. He was travelling at 40-50 kmph. He was aware that the brakes of his vehicle were not functioning satisfactorily. He failed to observe the parked carrier until (according to his statement) he was only two metres from it. He saw the man behind the vehicle. He braked and swerved to the left but could not avoid hitting the man. He also collided with the carrier.

In the absence of any explanation, these facts show a gross inattention by the Appellant. His Counsel submitted that it could have been momentary in attention or perhaps he fell asleep. However, there was no evidence to support that. He did observe the deceased and the carrier but only then when he was very close to them and unable to avoid a collision. His manner of driving in the circumstances of the case was dangerous. It resulted in a death and his conduct is deserving of censure.

I have carefully considered the authorities referred to me and in particular the cases of R v Boswell 1984 1 WLR 1047. R v Guilfoyle 1973 2 ALL ER 844, Sefanaia Marau v State Cr. Ap. 79 of 1990 and Edward Sheik Faruk Ali v R Cr. Ap. 62 of 1973. It is clear from those cases that driving of the nature found in this case which causes a death is likely to attract an immediate custodial sentence.

No purpose would be served by reciting all the different categories of offences and mitigating and aggravating features set out in the guideline cases. It must be remembered that those very helpful criteria are only guidelines. They are not exhaustive of the circumstances that may arise in every case. Each case must be considered on its own facts and circumstances. In this case the only relevant matters are that the Appellant cannot claim any discount for a clean record as he has a prior conviction for careless driving. Nor can he claim any allowance for a guilty plea and expression of contrition. However he is apparently of good character and has suffered ill health through lead poisoning.

In my view the learned Magistrate rightly decided that this was a case calling for an immediate custodial sentence.

This court in cases such as Sefanaia Marau v State (Cr.App. 79 of 1990) and Viliame Kasanawaqa v State (Cr. App. 62 of 1991) has indicated that sentences should reflect the seriousness of the offending and concern that there is in the community about the growing road toll. Some deterrence is appropriate. It is clear that the Magistrate was mindful of this although his language may have been a little dramatic.

Accordingly the only question in this case is whether a sentence of two years imprisonment is excessive.

The length of prison sentence must necessarily depend on the gravity of the offence. Furthermore there ought to be some consistency in the sentences imposed.

Counsel have not provided details of cases indicating the range of sentence commonly imposed in Fiji. However it is clear that such sentences cover a wide range. In the cases referred to by Counsel, the ultimate prison sentence was three months (in Viliame Kasanawaqa v State) 12 months, although suspended because of unusual circumstances, (in Sefanaia Marau v State Cr. App. 79 of 1990) and 18 months (in the case of Edward Sheik Faruk Ali v R Cr. App. 62 of 1973). I am aware, from my general research and reading, of sentences ranging from 6 to 12 months imprisonment being imposed and on occasions, they have been suspended.

On the limited material available, the sentence of two years imprisonment does seem to be beyond the range normally imposed for such offending. Past sentences may not be a totally reliable guide in view of the clear indication from this court that the prevalence of road deaths calls for deterrent measures. However this particular case involved a single incident of fault. It did not, for instance, involve aberrant driving over a prolonged period, grossly excessive speed or grossly hazardous manoeuvres. Nor is it a case in which the consumption of alcohol was a contributing factor. The driving in this case although dangerous was not in the worst category.

In the circumstances, a sentence of two years imprisonment is excessive and should be reduced.

The appeal is allowed. The sentence of two years imprisonment imposed in the Magistrates Court is quashed and in substitution a sentence of l2 months imprisonment is imposed commencing from the original sentence state of the 29th March 1995.

JUSTICE D.B. PAIN

HAA0017D.95S