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Turagatautoka v State [2003] FJHC 237; HAM0058J.2003S (5 December 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL APPEAL HAM058 OF 2003S

ERONI TURAGATAUTOKA

V

THE STATE

Gates J.

Appellant in Person
Ms P. Madanavosa for the State

28 November, 2 December
5 December 2003

JUDGMENT

Land Transport Act; Dangerous driving contrary to Section 98(1); Prescribed penalties; Disqualification Section 59(2); Mandatory or discretionary; Sufficient reason to be shown for not disqualifying; Meaning of "sufficient reason"; Aggravating factors; New maximumfines and Parliament’s intentions; Need for inquiry into means prior to imposing fines; Length of period of disqualification; Factors for arriving at length of period; Court to be confined to material presented in open court unless exceptional circumstances require otherwise

[1] This is an appeal against sentence in a traffic matter, in which the appellant complains of too harsh a fine and too long a period of disqualification.

[2] The appellant Eroni Turagatautoka, was charged with a single count of dangerous driving contrary to sections 98(1) and 114 of the Land Transport Act [No. 35 of 1998]. He appeared before the Resident Magistrate Nausori for trial on 25 September 2003. He was represented at trial by counsel, but he conducts his appeal now by himself.

[3] After the first prosecution witness had given evidence the appellant changed his plea to guilty.

Brief facts

[4] The incident occurred on a busy Saturday morning in Nausori Town. The complainant was a police sergeant from the Traffic Section. He was about to cross a street, which was not named in the court record, when the lights changed. Two vehicles stopped in the single lane near Mani Lal’s shop. The complainant took two steps onto the road. The lane from the Suva side was clear, when a car driven by the appellant overtook the two stationary vehicles and went through the red light. The complainant said he "had to jump backwards to save myself."

[5] The complainant added "If there was a vehicle coming from (the) Suva side, there would be a collision." The complainant considered the appellant was speeding and said there were a number of pedestrians about to cross.

[6] In a reserved judgment on 13.10.03 the magistrate sentenced the appellant to a fine of $500 in default to 9 months imprisonment and to disqualification from obtaining or holding a drivers licence for 6 months.

The prescribed penalty: The fine

[7] The wording of the offence of dangerous driving in section 98(1) of the Land Transport Act 1998 [the LTA] is very similar to that of the same offence under the previous Road Traffic Act. Contravention of the new section is said to make the offender "liable upon conviction to the prescribed penalty." Section 238 of the Penal Code [causing death by reckless or dangerous driving] provides for an Accused to become "liable on conviction to imprisonment for a term not exceeding five years." The exact term of imprisonment to be imposed remains a matter of judicial discretion. Does the provision of a prescribed penalty in the LTA fetter the sentencer and remove discretion?

[8] "Prescribed" is defined in section 2 of the Act [the LTA] as meaning:

"prescribed by this Act or by regulations under it;"

Section 2 also defines "prescribed penalty" as:

"the penalty mentioned in the third column of the Schedule as the maximum penalty for an offence against the section of this Act mentioned in the first column of the Schedule;"

[9] In contrast to "prescribed penalty" "fixed penalty" is defined to mean:

"a penalty payable on receipt of a Traffic Infringement Notice under section 87;"

[10] The adjective "prescribed" may at first be thought to fix exactly the extent of penalty to be imposed. The LTA may have been taken from a similar statute from New South Wales. The draftsman in the latter Act had fixed mandatory minimum terms as prescribed terms whilst providing for maximum terms up to which a sentencer could extend the sentence. No doubt the placing of prescribed penalties in a Schedule makes for a neater task if and when Parliament decides to increase any or all of the penalties at a later date.

[11] Websters Third New International Dictionary [1971 edit.] gives as one of its definitions of "to prescribe" as "to lay down authoritatively, to keep within limits or bounds." Whereas "Liable to", Webster says, suggests a wider use, and "may retain its original legalistic suggestion and imply the consequences of the actions of legal authority (liable to be fined);" see the discussion in Lines v Hersom [1951] 2 KB 682 at p.686.

[12] Mathew LJ in Chelsea Waterworks Company v Metropolitan Water Board [1904] UKLawRpKQB 82; [1904] 2 KB 77 at p.83 said of a "prescribed rate":

"But the statute gives them full power to fix the rate up to the maximum mentioned, and where there is no rate prescribed by the special Act the prescribed rate is that fixed by the company within the limits to which they are restricted."

[13] This would tend to suggest "prescribed" is not to receive a narrow interpretation; but compare the offence of "exceeding the prescribed limit" where no leeway would be permitted. There was some comment on the meaning of "prescribed" and "fixed" penalties in relation to the court’s discretion by Fatiaki J in The State v Usman Ali (unreported) Labasa High Court Cr. App. No. 0012 of 2001; 22 April 2002. At any rate section 114 states:

"114. (1) The penalties prescribed in the third column of the Schedule are prescribed as the maximum penalties for offences against the sections of the Act respectively mentioned.

(2) Where the prescribed penalty is shown by "$..../..... months" or similar, the court may impose a fine up to the maximum amount shown or a term of imprisonment up to the maximum period shown or both such fine and such imprisonment.

(3) Where the prescribed penalty includes disqualification, subsections (2) and (3) of section 59 apply.

(4) Where the prescribed penalty includes demerit points, subsections (2) and (3) of section 88 apply."

Had the magistrate a discretion not to disqualify?

[14] Section 59(2) of the LTA provides as follows:

"Unless disqualification is mandatory, if a person is convicted of an offence for which disqualification is part of the prescribed penalty, the court may, if sufficient reason is shown, disqualify the person for a shorter period than that prescribed, or decide not to disqualify the person, and must specify the reason."

[15] At first prosecuting counsel submitted that disqualification was a mandatory penalty for dangerous driving. This does not appear to have been the draftsman’s intention, when one sees that the adjective "mandatory" is omitted from the Schedule in the column giving the prescribed penalty for dangerous driving. In contrast the prescribed penalty for driving with excess alcohol [s.103(1)(a)] specifically states in the column "mandatory disqualification" for first, second or further offences.

[16] But section 59(2) does appear to make disqualification a mandatory sentence for all those cases in which the prescribed penalty includes disqualification as a potential penalty additional to imprisonment or a fine, unless the convicted person can demonstrate to the court a sufficient reason for not disqualifying or for disqualifying for a shorter period than that prescribed. This would apply to a section 98(1) offence, dangerous driving, with which we are here concerned. In Harnam Singh & Ano. v Police [1956-57] 5 Fiji LR 58 at p.59, Hammett J said:

"Where there are no special reasons it is mandatory under section 4 to order disqualification Where there are special reasons the court has a discretion whether to order disqualification or not."

[17] Section 59(2) effectively does away with the court’s previous discretion not to disqualify or to disqualify for a shorter period than the statutorily fixed mandatory period of disqualification. Before that earlier discretion could be exercised the Accused had to show "special circumstances of the case", for which he carried the onus. This was therefore not an unfettered discretion, rather it was a limited discretion; Lines v Hersom [1951] 2 KB 682 at p.686 per Lord Goddard CJ.

[18] Section 59 provides for two types of mandatory disqualification. The first provides for cases where the court is allowed no discretion at all [section 114 and the Schedule to the LTA]. The second is contained in the second limb of section 59(2) where the court must impose disqualification for the prescribed period set out in the Schedule, but need not do so "if sufficient reason is shown." Such penalties should have been more accurately described in the Schedule as mandatory also. This was the categorisation of the same penalties under the Traffic Act: Harnam Singh (supra).

[19] The LTA is a penal statute and unless the words used are clear in imposing the penalty, a construction favourable to the person sought to be punished is to be arrived at: Tuck v Priestar [1887] UKLawRpKQB 162; (1887) 19 QBD 629 at p.638; A-G v Till [1910] AC 50, 51.

[20] Putting aside the omission of the descriptive adjective "mandatory" in the Schedule, I construe the Act to intend a strict approach to the question of disqualification. However I interpret the words "sufficient reason" to have a wider meaning than that of "special circumstances of the case", or "special reasons". I find that "sufficient reason" is wide enough to include reasons of a more general character which relate to the offender and not solely to the offence: cf. Whittall v Kirby [1947] KB 194; Lines v Hersom (supra); Jones v English [1951] 2 All E.R. 853.

[21] It would be wise however for an Accused to be ready at court with evidence to establish "sufficient reason". Sometimes, it will depend upon the nature of the circumstances concerning himself or herself or the offence itself. But some guidance can be obtained from two local decisions, both careful judgments of longstanding Kandsami v R [1964] 10 Fiji LR 206; and Harnam Singh & Ano. v Police [1956-57] 5 Fiji LR 58. Neither of these decisions appears to have been referred to the Court of Appeal in Rajendra Chaudhary v The State (unreported) Court of Appeal Crim. App. AAU0006 of 1999S; 31 May 2002 which was interpreting "special reasons" and which concluded that it was not necessary in every case that an Accused person establish such by evidence on oath [see p.5 of the judgment]. It is impossible to say whether the court would have reached the same conclusion if the two Fiji decisions had been referred to the court together with a long line of English decisions interpreting the same phrase used in traffic legislation, and which had been cited and approved: See too Gokul Singh v R [1975] 21 Fiji LR 50.

Mitigating factors

[22] The appellant had pleaded guilty, albeit that this was a change of plea after commencement of trial. He had no previous convictions. No-one was injured by his error of judgment, as he described it. He was 53 years old and had worked for his statutory body employer for 33 years. His employment required him to have a driving licence for emergencies.

Aggravating factors

[23] The appellant drove at speed, and deliberately overtook 2 stationary vehicles at the lights in a single lane street. It was a busy Saturday in Nausori Town, with many pedestrians about who might want to cross the street, and who did attempt to cross, at the lights. One pedestrian had testified that he had to step back to save himself from being hit by the appellant’s vehicle. This piece of driving was not a mere error of judgment.

[24] Two other factors to which the magistrate had regard were perhaps not so significant as was stated. First it was said the appellant should have showed a good example to his subordinates at work. But at the time of the offence he was a civilian going about his private business, not on duty, and no special duty arose towards subordinates at that time by this private business. Second, it was said he failed to stop when required to do so by the prosecution witness who had to step back. The evidence recorded was not sufficiently clear to establish that the driver had looked back and had seen the pedestrian signalling him to stop. It cannot be accepted therefore that he had deliberately ignored the officer’s signal given after he had driven past. No adverse inference can be drawn from this evidence, for it to be regarded as an aggravating factor.

Tariff

[25] Previously the tariff under the old dangerous driving in cases in the Magistrates Courts was of nominal fines of between $40-$75. Dangerous driving under the LTA carries a maximum fine for a first offence of $1,000, 12 months imprisonment, and disqualification for 6 months. A second offence carries a maximum fine of $2,000, or 2 years imprisonment, with 12 months disqualification. These new maximum penalties are clearly intended by Parliament to result in much harsher sentences being meted out.

[26] The magistrate plumbed for a middle range fine of $500. The potential for harm to road users from the appellant’s driving, a deliberate decision to overtake the vehicles at the lights, merited such a sentence. The magistrate had before him some evidence of the appellant’s means. Magistrates need to take the precaution when imposing these new fines, which are far more substantial than under the earlier legislation, of making brief inquiry into the Accused person’s ability to pay a fine. The information from this inquiry should be noted in the record.

[27] It has been said that speed is not in itself necessarily dangerous, but only when it is excessive speed for the road situation or conditions: R v Moore (1994) 16 Cr. App. R (S) 536.

[28] It is clear that disqualification cannot be ordered to be a partial disqualification only: State v Jitesh Prasad (unreported) Suva High Court Cr. App. No. HAA038 of 2003S, 16 October 2003. In that case Shameem J provided guidance on the factors to be considered when considering length of disqualification. They were (p.5):

"1. The standard of driving shown in the offending.

2. Any previous convictions for traffic offences.

3. The need to protect the public from dangerous/careless/drunk drivers.

4. Good character.

5. Serious hardship to the family.

6. Driving providing the source of livelihood for the offender.

(R –v- Thomas (K) 78 Cr. App. R. 44, R –v- Hart; R –v- Jackson (1970) RTR

165; Reynolds –v- Roche (1972) RTR 282).

These factors will determine the length of disqualification."

The disqualification

[29] The disqualification imposed here was the maximum provided for on a first offence. The State concedes this was too harsh. I note that the appellant is a person of good character with no previous convictions for traffic offences in a long driving history. I accept also there would be hardship for himself in his job and for his family in being deprived of the ability to use a private motor vehicle. I understand he lives in a place not easily accessible.

[30] For all of these reasons I allow this part of the appeal and order a reduction in the period of disqualification from 6 months to 3 months.

Open justice

[31] I make one final observation on procedure. On 25.9.03 the magistrate adjourned for sentence having heard the appellant’s counsel in mitigation. On 13.10.03 in opening his remarks on sentence the magistrate wrote:

"I have purposely adjourned this case for Sentencing today, so that an in depth background of the defendant, could be made available to the Court."

[32] No other material is contained in the court record and there is no note of any additional material being handed up to the court or of any further submissions on background or sentence by the prosecutor or by appellant’s counsel. It is not clear what the magistrate had in mind here. The magistrate could only act on admissible material. The court cannot conduct its own enquiry into the background of a person due for sentence. Everything must be available for the scrutiny of open court proceedings for the Accused and his counsel to be able to respond to, and for the public to observe and hear. In sentencing, there are very few exceptions to this principle. They might include matters of national security, undercover assistance to the police, or details of a terminal illness and such like medical matters: Ex parte Guardian Newspapers Ltd [2008] EWCA Crim 1741; [1999] 1 Cr. App R 284.

[33] If there had been an in depth background investigation conducted into the appellant, its results were not revealed in the sentencing remarks. It is important that an Accused should always be appraised of any adverse information about him or her so that he or she, or counsel, have an opportunity to challenge it prior to sentence being passed.

Conclusion

[34] In the result, the appeal succeeds in part. The sentence of a fine is upheld and the appeal against the sentence of disqualification from holding or obtaining a driving licence succeeds, the period of disqualification is reduced to a one of 3 months from the original date of sentence 13.10.03.

A.H.C.T. GATES
JUDGE

Solicitors for the Appellant: In Person
Solicitors for the State : Office of the Director of Public Prosecutions