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Kumar v State [2014] FJHC 775; Criminal Appeal 172.2014 (27 October 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION
Criminal Appeal No. 172 of 2014

BETWEEN:

SHELVIN SILAAN KUMAR
Appellant

AND:

THE STATE
Respondent

BEFORE: HON. MR. JUSTICE PAUL MADIGAN

Counsel: Ms. Q. Vokanavanuafor the Appellant
Mr. S. Babitufor the State

Date of hearing: 17 October2014
Date of Judgment: 27 October 2014

JUDGMENT

1. On the 14th March 2013, the appellant ("the accused") entered a plea of guilty in the Magistrates Court at Lautoka to the following offences:
   

FIRST COUNT
Statement of Offence

Dangerous driving occasioning death contrary to section 97(2)(c), 5(c), (8) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

ShelvinSilaan Kumar on the 11th day of March 2013 at Lautoka in the Western Division drove a motor vehicle registration number DW 181 on SukanaivaluRoad,Lautoka in a manner dangerous to another person, involved in an impact with another person and caused the death of Vasemaca Doris.

SECOND COUNT
Statement of Offence

Failed to Stop After an Accident: contrary to Regulation 63(1) and 87 of the Land Transport (Traffic) Regulation 2000.

Particulars of Offence

ShelvinSilaan Kumar on the 11th day of March 2013 at Lautoka in Western Division being the driver of motor vehicle registration number DW 181 on Sukanaivalu Road, Lautoka, failed to stop the said motor vehicle after being involved in an accident.

2. He was sentenced on the 22nd May 2013 to a term of 2 years imprisonment for the dangerous driving causing death offence and to a concurrent term of 30 days imprisonment for the failure to stop conviction. In addition he was disqualified from driving for 5 years.
   
3. The accused appeals the sentence as being harsh and excessive and "wrong in principle in all the circumstances".
   
   • (i) The Magistrate took irrelevant matters into consideration.
     
   • (ii) The Magistrate failed to consider he was a first offender and had entered a plea of guilty.
     
   • (iii) The Magistrate has not considered the Sentencing and Penalties Decree.
     

Facts

4. A summary of facts was put to the accused, and on his agreement to these facts, he was found guilty and convicted. The facts revealed that on the 11th March 2013 at about 6pm at Sukanaivalu Road, Lautoka the accused, a mechanic with Raynil Electric Company was driving company truck DW 181 which bumped the deceased who was crossing the road on foot. He was driving from Kashmir towards Waiyavi at high speed. The victim ( a school girl aged 6 years) was with her parents at the side of Sukanaivalu Road. She ran across the road and the accused, coming from Vomo Street bumped into her when she was about 1.3m from the kerb. The left front of his vehicle hit the girl and the force of the impact threw her 18.6 metres away from the roadside. She was rushed to hospital but was found to be dead on arrival. A post mortem showed that she had suffered a ruptured spleen and skull fracture. The accused failed to stop after the accident.
   
5. In his sentence the learned Magistrate reviewed the authorities and then took a starting point of 2 years imprisonment. He increased that by one year for what he said were aggravating features for bad driving which threw the victim a distance of 18 metres in a very densely populated area. He allowed discount of one year for the guilty plea and clear record. He arrived therefore at a final sentence of 2 years imprisonment and disqualified the accused from driving for a term of 5 years.
   
6. The appellant appeals both the prison term and the period of disqualification submitting that they are both harsh and excessive.
   
7. The maximum penalty for this offence under the Land Transport Authority Act 1998 is ten years' imprisonment. This Act replaced the old Penal Code Offence for which the maximum penalty was only 5 years. The relevance of this increase in penalty by the legislature was addressed by Shameem J in Sharma v. State [2005] FJHC 464, a case referred to by the learned Magistrate in which the Honourable Judge said:
   

"In 1998 Parliament passed the Land Transport Authority Act and increased penalty for causing death by dangerous driving to 10 years' imprisonment. There can be no clearer parliamentary intention as to sufficiency of penalty. To reflect such parliamentary intention, I held in IowaneWaqairatavo that the tariff for such offences must increase to 2 to 4 years imprisonment."

She had referred earlier in her judgment in Sharma that sentences earlier under the Penal Code (when the maximum was 5 years) ranged from a suspended sentence for momentary inattention to custodial sentences where there had been recklessness in bad conditions.

8. Once more in the case of Benjamin Padarath HAC 13 of 2004 Shameem J affirmed that the appropriate sentence for this offence be from 2 to 4 years.
   
9. In Chandra Pal v. R[1974] 20 FLR it was held:
   

"The driving must be shown to be the real cause of the accident .... Prosecution must show fault on the part of the driver causing a situation which viewed objectively was dangerous."

10. There is no doubt then that the tariff is still now 2-4 years and the "momentary inattention" mitigating factor is not available under the harsher penalty of the Land Transport Act.
    
11. The final sentence of two years passed on the appellant was not only within tariff, it was as lenient as the sentencing court could be whilst still in the tariff. It was submitted by counsel for the appellant that allowance was not made for his plea of guilty and his clear record, but it is apparent in the sentence that the Magistrate did allow a one year reduction on a three year sentence for these factors. This reduction was in the circumstances appropriate and meaningful.
    
12. Counsel submitted at the hearing of the appeal that blame should be shifted to the parent(s) of the 6 year old child who allowed her to dash across one of the busiest roads in Lautoka at 6pm in the evening.
    
13. Apart from the fact that it is well known that 6 years olds are willful and unpredictable and no guardian could keep them constantly restrained; it is not for the driver to try to shift blame for his dangerous driving. He was travelling at high speed (fact that he admitted in the Court below) and by doing so he created by that speed a substantial risk of danger. Had he not been travelling at such speed he could have easily averted his vehicle from the track of impact and applied his brakes to avoid hitting the child. The Court will show no mercy to drivers who drive irresponsibly and by that irresponsibility take the life or lives of another
    
14. In the circumstances the sentence of imprisonment is both appropriate and lenient and the appeal against it is dismissed.
    
15. The period of disqualification was 5 years. The maximum provided for in s.114 of the Land Transport Act 1998 is disqualification for life. Disqualification periods appear to be usually in the range of one to three years and given that, it would appear that this period of disqualification may perhaps be excessive.
    
16. The driving on an extremely busy road at dusk at high speed was "an accident waiting to happen" and therefore the impact and subsequent death of a 6 year old girl is the accident and a tragedy.
    
17. The failure to stop after the accident compounds the offence and a period of disqualification while discretionary must be made to be meaningful. The appellant will not of course be able to drive for the two years he is in custody and therefore the disqualification must run longer than that if it is to be condign punishment and an effective deterrent.
    
18. The period of disqualification of 5 years from the date of sentence is set aside and a new term of 3 years is imposed.
    
19. To that extent the appeal succeeds.
    
20. The concurrent sentence of 30 days for failing to stop is not disturbed.
    

P.K. Madigan
Judge

At Lautoka
27 October 2014