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State v Reddy [2002] FJHC 125; HAA0026J.2002S (5 June 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0026 OF 2002

Between:

THE STATE
Appellant

And:

VIJENDRA REDDY
Respondent

Hearing: 31st May 2002

Judgment: 5th June 2002

Counsel: Mr B. Solanki for Appellant
Respondent in Person

JUDGMENT

The Respondent was convicted on his plea of guilty of the following offence, on the 19^th of February 2002:

Statement of Offence

DRIVING A MOTOR VEHICLE WHILST THERE IS PRESENT IN THE BREATH A CONCENTRATION OF ALCOHOL IN EXCESS OF THE PRESCRIBED LIMIT: Contrary to Section 103(1)(a) and 114 of the Land Transport Act Number 35 of 1998.

Particulars of Offence

VIJENDRA REDDY s/o ARMOGAM, on the 13^th day of January 2000 at Suva in the Central Division drove a motor vehicle registration number DF407 on Waimanu Road, whilst there was present in 100 millilitres of his breath, concentration of 49 micrograms of alcohol which was in excess of the prescribed limit.

He was sentenced to a fine of $500.00 and in default of payment, six months imprisonment. The State now appeals against sentence on the following grounds:

(a) That the learned Magistrate erred in law when she failed to invoke section 114 of the Land Transport Act which directs that mandatory disqualification from driving be imposed as a penalty for this offence;

(b) That the sentence imposed by the learned Magistrate was lenient in all the circumstances.

Section 103(1)(a) of the Land Transport Act provides that any person who (inter alia) drives a motor vehicle while more than the prescribed concentration of alcohol is present in his blood, commits an offence.

Section 114 of the Act provides that the penalties for offences under the Act are prescribed in the third column of the Schedule to the Act. The Schedule provides that on a first offence under section 103(1)(a), the prescribed penalty is $2000 fine and/or 2 years imprisonment and mandatory disqualification from 3 months to 2 years.

As I said in State -v- Satish Kumar Crim. App. No. HAA 025 of 2002, the provision for disqualification for at least 3 months is mandatory for an offence under section 103(1)(a). The learned Magistrate therefore erred in law in failing to order disqualification.

As to the appropriate length, in Satish Kumar supra, I ordered disqualification for 6 months for an offender whose blood alcohol level was 40 micrograms. In this case, the level alleged, and admitted was 49 micrograms. In his submissions, the Respondent said that he drives as part of his responsibilities as General Manager for Graphics Fiji Ltd., and that he drives a great deal. He also said that he had paid his fine of $500.00.

The level of alcohol in the Respondent=s blood was not excessively over the limit, and he is a first offender. I consider that a term of disqualification for 6 months to be appropriate and his sentence is varied to that extent. The State=s appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
5^th June 2002