Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Kumar v State [2008] FJHC 239; HAA038J.2008S (2 October 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 038 of 2008

Between:

GILENDRA KUMAR
Appellant

And:

THE STATE
Respondent

Hearing: 26th September 2008
Judgment: 2nd October 2008

Counsel: Mr. I. Khan for Appellant
Ms A. Tuiketei for State

JUDGMENT

The Appellant was charged with one count of dangerous driving occasioning death and driving motor vehicle with expired registration. He pleaded not guilty to both offences on the 8th of November 2006 and there was delay in the setting of a hearing date because the Appellant was recovering from the injuries he had sustained in the accident. A hearing date was eventually set for the 26th of September 2007.

On that day, counsel for the Appellant failed to appear and the hearing was adjourned to the 17th of October 2007. On the 17th of October, the Appellant changed his plea.

The facts were that on the 26th of April 2006, the Appellant was driving a 3 ton carrier at Nabukavesi on the Queens Road. A passenger in the carrier saw that the Appellant had fallen asleep behind the wheel. He lost control of the vehicle, which veered on to the wrong side of the road and bumped into an oncoming vehicle, driven by Rabineshwar Dayal, and into another vehicle driven by Solomon Sigakalele (the deceased). He died instantly. A passenger in his car, Alisi Rokowailoa, died at the CWM Hospital two weeks later. Both deceased persons died as a result of the accident. On investigation, it was discovered that the Appellant’s vehicle had expired vehicle licence registration. It had expired on the 14th of April 2006 and was not renewed.

These facts were admitted, and the Appellant was convicted on both counts. The Appellant had one lapsed conviction and was treated as a first offender. In mitigation, counsel said that the Appellant was a first offender, was remorseful, was employed in a position of responsibility and was looking after his two children and an elderly and invalid mother. He said that the Appellant had supported various charities and employed five people in his business. Further he had suffered serious injuries himself, had broken his left leg and used a wheelchair.

The learned Magistrate referred to the maximum penalties on count 1 ($10,000/10 years imprisonment and disqualification of up to life) and considered that this was a case of momentary inattention calling for a non-custodial sentence. She sentenced him to $5,500 fine to be paid within 60 days, in default 6 months imprisonment. She also disqualified him from driving for 12 months. The case was set for "review" on the 23rd of January 2008.

On that date the Appellant appeared before the learned Magistrate. He had not paid his fine. He told the learned Magistrate:

"I have $4000 today to pay on 23/01/08. I can pay remaining sum by 20/2/08. I didn’t get payment from school on time that’s why I couldn’t pay on time. I’ll pay $4000 today. I’ll settle the rest in 2 weeks."

The Court said:

"I will exercise my discretion as your ability to pay is limited at this point in time. 14 days to pay rest of fine. Also driving licence to be tendered in before then. In default 6 months imprisonment as per original sentence order."

The case was called again on the 6th of February 2008. The Appellant did not appear. Nor had he brought in his driving licence. On the 12th of March 2008, he did not appear but sent in a medical report instead. The learned Magistrate did not accept the report and issued a bench warrant.

On the 2nd of April, he appeared with $1,500. The learned Magistrate considered the matter and said that the court had already given him time to pay his fine, and to give in his driving licence, but that he had disobeyed both orders. She found that the Appellant had made "an almost deliberate attempt to defy the orders of this Court." She said (at page 23 of the record):

"You say you now have the outstanding fine of $1,500, for the Court to accept this would mean the undermining of its own, earlier orders. You also say, your driving licence is here now. I cannot accept the explanation that because you were sick you were unable to pay the outstanding sum of $1,500, and bring in your driving licence. The court ordered an in default of 6 months imprisonment. You still could have complied irrespective the driving licence is still not handed in to this court. The court in my view showed you mercy by being sympathetic towards your financial state. But you have taken advantage [of] the mercies of this Court."

She then refused to accept the balance of $1,500 fine and instead ordered that the Appellant serve four of the six months "in default" sentence. The driving licence was handed into court on the same day.

The Appellant appeals against this order saying that the learned Magistrate erred in sentencing the Appellant to three months imprisonment when the Appellant was able and willing to pay the fine in court. His second ground of appeal is that the order was in breach of section 23(2) of the Constitution. His third ground is that the learned Magistrate failed to exercise her duty judicially. Bail pending appeal was granted by this court on the ground that he would have served his term of imprisonment before his appeal was heard.

At the hearing of this appeal, counsel for the Appellant submitted that the learned Magistrate had failed to apply a means test, that the Appellant was not unwilling to pay his fine but had been unable to do so and that there was a breach of section 23(2) of the Constitution.

State counsel said that although there had been no means inquiry before the fine was imposed, the Appellant had been represented by counsel who did not object to the size of the fine. She further submitted that having seen the Appellant’s medical report, the learned Magistrate was entitled to draw the conclusion that the Appellant was unwilling to pay his fine.

The law on the discretion to order the period of "in default" imprisonment is governed by section 23(2) of the Constitution, and section 35(3) of the Penal Code. Section 23(2) of the Constitution provides that no person shall be ordered to serve a term of imprisonment for non-payment of a fine or debt unless the court is satisfied that the person willfully refused to pay although he or she was financially able to pay.

Section 35(3) of the Penal Code provides:

"Notwithstanding the provisions of subsection (5) of section 28 but subject to the provisions of subsection (4) of that section, the imprisonment which is imposed in default of payment of a fine, shall commence on the day on which the person so in default was arrested by virtue of the sentence of the court and shall terminate whenever the fine and all expenses are either paid or levied by process of law."

The principles applicable to the levy of a fine are now well-settled, since the decisions of the High Court in In Re Eroni Delai (2000) 2 FLR 15, Mateo Bale & Naisa Cakacaka v. State [2001] HAR 001/01, Earle Underwood v. Reginam (1983) 29 FLR 170, Haroon Khan v. State (1994) 40 FLR, and Sereima Bokadi v. State [2002] HAA 75/02S. They are that fines should only be considered where a non-custodial sentence is appropriate, that the amount ordered and the length of time given to the offender to pay it should only be decided after a "means" inquiry into the offender’s income, expenditure and assets, and that the "in default" period should be fixed depending on the scale of the fine and the means of the offender to pay it. In Re Eroni Delai (supra) Scott J held that section 35 of the Penal Code was not inconsistent with section 23(2) of the Constitution provided a means inquiry was conducted before the sentence was imposed. In Sereima Bokadi, a decision of this court, it was held that provided a means inquiry had been held prior to the passing of sentence, a subsequent inquiry was not necessary when it was discovered by the court that the offender had not paid. This was so unless there had been a significant change in the offender’s financial situation.

A means inquiry involves a consideration of regularity of employment, expected wages, current wages, financial burdens on the offender and other sources of income. The court is entitled to rely on the information given to it by the offender.

On a perusal of the court record in the Appellant’s case, I find that the learned Magistrate did conduct a means inquiry, and that the Appellant (through his counsel) was himself the source of the information on which she relied. She knew of the Appellant’s employment, that he employed 5 people, that he supported his mother, an aunt and two children, that he owned the vehicle which was the subject of the charge and that the sum of $4,500 was not excessive. As State counsel points out, the fine was ordered over no protests by the Appellant and his counsel. When he did not pay, months after sentence was imposed, the learned Magistrate asked him why. He asked for further time to pay. She gave him further time. He did not pay. He did not appear. The medical reports he produced were unsatisfactory. In all, the Appellant was given three months to pay $4,500. In the circumstances of the case, I find that the learned Magistrate did not err when she concluded that he had the means to pay but was refusing to pay the balance of $1,500.

However, she did err when she refused to accept the fine when the Appellant arrived in court (after the bench warrant was issued) with the remaining sum of $1,500. She had no powers to refuse to accept the balance of the fine although he was well out of the time given to him to pay it. That is the effect of section 35(3), which provides in clear and unambiguous terms, that a "defaulter" can only be imprisoned either until s/he has served the default period or until s/he has paid the fine in full.

The purpose of section 35(3) is clear. It is to facilitate the collection of the fine. It is not to punish the fine defaulter. Thus, where a defaulter has been brought to court, or summoned to court for non-payment, and he offers to pay the fine immediately, the court must accept the fine and release the defaulter. If the defaulter is arrested, and whilst in custody makes arrangements to pay the fine, s/he must be released on payment. That is the effect of section 35(3).

Thus in this case when the Appellant arrived in court with the balance of $1500 in his hand, and when he asked to pay that amount into court, the court had an obligation to accept the money and release the Appellant from custody.

In failing to do so, the learned Magistrate erred. This appeal must therefore succeed. The balance amount of $1500 must be paid into the High Court Suva by 4pm today. The sentence "in default" of non-payment of fine is quashed.

Nazhat Shameem
JUDGE

At Suva
2nd October 2008