IN THE HIGH COURT OF FIJI AT SUVA
In the matter of an appeal under section 246(1) of the Criminal Procedure Decree 2009.
CASE NO: HAA. 014 of 2016
[MC Nasinu, Traffic Case No. 2168 of 2009]

NARENDRA PRASAD
Appellant

Vs.

STATE
Respondent

Counsel		:	Mr. J. Reddy for the Appellant
				Ms. J. Prasad and Ms. M. Konrote for Respondent.
Dates of Hearing	: 	8th August & 23rd August 2016.
Date of Judgment	:	16th September 2016.

JUDGMENT

1.	The appellant was charged before the magistrate court of Nasinu on 04/06/09. The charge sheet was subsequently amended on 21/10/14. The amended charges are as follows;

FIRST COUNT
Statement of offence (a)
DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Section 97(2)(c) of the Land Transport Act 35 of 1998.

Particulars of offence
NARENDRA PRASAD on the 2nd day of June 2009 at Nasinu in the Central Division drove a motor vehicle number DR 415 along Khalsa Road which was involved in an impact and at the time of the impact drove in a manner which was dangerous to the public having regard to all the circumstances at the time thereby causing the death of Melvin Ronald Singh.

SECOND COUNT
Statement of offence (a)
FAILURE TO COMPLY WITH REQUIREMENTS AFTER AN ACCIDENT: Contrary to regulation 63(1) and 87 of the Land Transport (Traffic) Regulation 2000 and section 113 of the Land Transport Act 35 of 1998.

Particulars of offence
NARENDRA PRASAD on the 2nd day of June 2009 at Nasinu in the Central Division drove a motor vehicle number DR 415 along Khalsa Road and was involved in a motor vehicle accident resulting in the death of Melvin Ronald Singh and failed to stop and give necessary assistance, his name and address, name of the owner of the vehicle and registration number and the name of the Insurance Company responsible for the third party insurance to any person present at the time of the accident or immediately present after the accident.

2.	According to the case record, the hearing of the case has been vacated on six (6) occasions from 04/06/10 until 09/10/15. When the matter was fixed for hearing on 21/10/14, the prosecution amended the charge sheet and the case was re-fixed for hearing on 16/12/14. The hearing on 16/12/14 has been vacated by the court with prior notice to the appellant and the appellant was absent on this date. On the application of the defence counsel, appellant’s absence on 16/12/14 was excused. The matter was then re-fixed for hearing on 09/10/15 and for mention on 31/08/15.

3.	Thereafter the appellant had been absent throughout when the case was mentioned on 31/08/15, 21/09/15, 28/09/15 and on 02/10/15. On 02/10/15, a bench warrant was issued against the appellant.

4.	On 09/10/15 the learned Magistrate had commenced the hearing in the absence of the appellant. Then the case was adjourned to 02/12/15 for continuation of hearing. The appellant was present on 02/12/15 and the hearing was re-fixed on 20/01/16. On 20/01/16 the appellant had pleaded guilty to both charges as amended and was convicted accordingly.

5.	The appellant had admitted the following summary of facts filed on 23/02/16;

“Narendra Prasad, (accused person) now aged 63 years old, was employed as a driver for Plumbing and Property Services on 2nd June 2009.

On 2nd June 2009, Melvin Ronal Singh, aged 11 years, at about 7.05am crossed the Khalsa Road in front of his house to go to Mala’s Dairy Shop to get change for $20.00. Upon getting the money changed, Melvin Singh approached Khalsa Road. Melvin Singh looked right and left to see if the road is clear so that he could cross the road to go to his house.

The accused person at the same time when Melvin Singh was standing on the edge of the road was driving in Khalsa Road towards Princess Road. The vehicle driven by the accused person was a white carrier with blue tarpaulin with vehicle registration number DR 415.

The accused person whilst driving noticed pedestrians on the side of the road and saw Melvin Singh standing on the edge of the road waiting to cross the road. As the accused person drove, the left side of his vehicle, struck Melvin Singh on his head causing him to fall on the road. Due to the impact with the vehicle, pieces of bone fragment , blood and skin of Melvin Singh were transferred to the metal bar immediately behind the front passenger door on the left, as per photograph 7 and 8 of the photographic booklet (annexed hereto as prosecution exhibit 1).

At the time of the impact, the accused person was driving fast and over the speed limit prescribed for Khalsa Road. The accused person’s vehicle had left the road partially and gone off the road when the side of his vehicle struck Melvin Singh. The accused person continued driving. Due to the impact the left side view mirror detached from the vehicle and fell off.
…

Count 2
The accused person after the impact with Melvin Singh continued driving and left the scene. The accused person was arrested after Police conducted searches for the driver of the vehicle. The accused person admitted that he was aware of the impact between his vehicle and Melvin Singh in question and answer 24 of the caution interview (annexed hereto as Prosecution Exhibit 3).”

6.	On 27/04/16 the learned magistrate sentenced the appellant for a term of 2 years imprisonment on the first count and to a term of 3 months imprisonment on the second count. Both sentences were ordered to be served concurrently.

7.	Being aggrieved by the sentence imposed by the learned magistrate, the appellant appeals against the said sentence on the following grounds of appeal;

1.	That the learned trial Magistrate erred in law and in fact in sentencing the accused to 2 years imprisonment which sentence is harsh and excessive in all the circumstances considering the fact that the accused is a first offender and had pleaded guilty to the said charge.
 
2.	That the learned trial Magistrate erred in law and in fact in failing to consider that a suspended sentence was warranted in this case considering the mitigating factors outlined on his behalf and particularly when the sentence passed was only two years imprisonment.

8.	However, in the written and oral submissions made on behalf of the appellant, the counsel for the appellant focused mainly on the second ground above.

9.	This is a case where a life of a 11 year old boy was lost due to the dangerous driving of the appellant. The vehicles seen on the roads in Fiji appear to have increased over time and so have the reports on fatal accidents. When there are more vehicles on the road, undisciplined drivers may be prompted to violate the road rules to avoid delays due to heavy traffic. Thus, it is important that a clear message is sent to the drivers who do not maintain the expected standard of driving, that they will face severe consequences if their unruly behavior on the road leads to a loss of a human life.

10.	In the case of R v Cooksley [2003] 3 All ER 40, Lord Woolf CJ (Gage and Moses JJ agreeing) made the following points about sentencing for death by dangerous driving; 
“(i) Although the offence is one which does not require an intention to drive dangerously or an intention to injure, because before an offender can be convicted of dangerous driving, his driving has to fall 'far below' the standard of driving that would be expected of a competent and careful driver and the driving must be such that it would be obvious to the same competent and careful driver that driving in that way would be dangerous, it will usually be obvious to the offender that the driving was dangerous and he therefore deserves to be punished accordingly.
(ii) In view of the much heavier sentence which can be imposed where death results as compared with those cases where death does not result, it is clear that Parliament regarded the consequences of the dangerous driving as being a relevant sentencing consideration so that if death does result this in itself can justify a heavier sentence than could be imposed for a case where death does not result.
(iii) Where death does result, often the effects of the offence will cause grave distress to the family of the deceased. The impact on the family is a matter that the courts can and should take into account. However, as was pointed out by Lord Taylor of Gosforth CJ in R v Shepherd, R v Wernet [1994] 2 All ER 242 at 245, [1994] 1 WLR 530 at 536:
'... we wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence. We recognise that no term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, nor will it cure their anguish.'
(iv) A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standards of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what the mitigating circumstances, normally only a custodial sentence will be imposed. This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence.” [Emphasis added]

11.	The judgment in Cooksley (supra) is significant because it issued fresh guidelines on sentencing for death by dangerous driving. It is always a challenge for the sentencer to properly assess the seriousness of the offending in order to determine the appropriate sentence. The following discussion in the aforementioned judgment is a useful guide on how to assess the seriousness of the offence of causing death by dangerous driving for the purpose of sentencing;
“[13] In the advice the panel expresses their view in these terms:
'13. The key problem for a sentencer dealing with this offence is the tension between the outcome of the offence (which is inevitably the death of at least one victim) and the degree of the offender's culpability. The Panel's provisional view, that the offender's culpability should be the dominant component in the sentencing exercise but that the outcome of the offence should have some effect, was strongly endorsed by the majority of respondents to the consultation paper. The Panel understands the view of 46  the minority, that causing death is invariably a very serious crime, but reaffirms its initial view that culpability must be the dominant factor when the offence involves no intention to kill or injure.' 	 
[14] As we have made clear, in accord with the view of the minority referred to in the advice, we accept that causing death is invariably a very serious crime. None the less, we do not dissent from the panel's view that culpability must be the dominant factor when assessing as precisely as possible just where in the level of serious crimes the particular offence comes. 
[15] The panel sets out a series of aggravating and mitigating factors. These are more extensive than those that were set out in R v Boswell. We adopt them but stress that they should not be regarded as an exhaustive statement of the factors. In addition it is important to appreciate that the significance of the factors can differ. There can be cases with three or more aggravating factors, which are not as serious as a case providing a bad example of one factor. They are as follows. 

AGGRAVATING FACTORS 	 
'14. ... Highly culpable standard of driving at time of offence 
(a)	the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a "motorised pub crawl" 
(b)	greatly excessive speed; racing; competitive driving against another vehicle; "showing off" 
(c)	disregard of warnings from fellow passengers 
(d)	a prolonged, persistent and deliberate course of very bad driving 
(e)	aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking) 
(f)	driving while the driver's attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held) 
(g) driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills 
(h)	driving when knowingly deprived of adequate sleep or rest 
(i)	driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns

Driving habitually below acceptable standard 
(j)	other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle 
(k) previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving 
	
Outcome of offence 
(l)	more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable) 
(m)	serious injury to one or more victims, in addition to the death(s) 	 
		
 Irresponsible behaviour at time of offence 
(n)	behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape 
(o)	causing death in the course of dangerous driving in an attempt to avoid detection or apprehension 
(p)	offence committed while the offender was on bail.' 

 MITIGATING FACTORS 	 
'22. ... (a) a good driving record; 
(b) the absence of previous convictions; 
(c) a timely plea of guilty; 
(d) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend); 
(e) the offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and 
(f) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.'”

12.	One of the aggravating factors above is, driving while the attention is avoidably distracted. Interestingly, the example provided is using of mobile phones while driving. It is pertinent to note the following remarks found in the said judgment on sending text messages while driving;
“… In R v Browning the defendant was a lorry driver who veered off the road and killed a man in a lay-by while sending a text message. This court upheld the custodial sentence of five years. In giving the judgment of the court Mance LJ made a statement which we would endorse. He said (at [27]): 	 
'The use of a mobile phone to read and to compose text messages while driving is a highly perilous activity. Even the use of a handheld mobile phone by a driver whilst moving, a much too common feature of driving today, is self-evidently risky. But the risks of reading and composing text messages appear to us of a wholly different order and to be, to use the judge's word, of the most "blatant" nature.'
We would respectfully endorse those words. In that case Browning had pleaded guilty but there had to be a Newton hearing (see R v Newton (1982) 77 Cr App R 13). Browning's evidence was not accepted so he was not entitled to full credit for his plea. The sentence of five years for an offender of good character and who was remorseful was upheld. …”

13.	Now I turn to examine the two grounds raised by the appellant. This being an appeal against sentence, I am mindful to be guided by the judgment in the case of Kim Nam Bae v The State [AAU0015 of 1998S (26 February 1999)] where it was held that:
“It is well established law that before this Court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if mistakes the facts, if he does not take into account some relevant consideration, then the Appellate Court may impose a different sentence. This error may be apparent from the reasons for sentence or it may be inferred from the length of the sentence itself (House v The King (1936) 55 CLR 499).”

Ground 1
14.	In respect of ground one, the appellant submits that that the sentence imposed by the learned magistrate is harsh and excessive considering that the appellant is a first offender and that he pleaded guilty.

15.	Section 4(2) of the Sentencing and Penalties Decree 2009 clearly provides that a court must have regard to whether the offender pleaded guilty to the offence and the offender’s previous character when sentencing the offender. Therefore, there is no question that the two factors outlined in ground 1 are factors the learned magistrate should consider in determining the appellant’s sentence.

16.	The question is whether the learned magistrate properly considered those two factors when he sentenced the appellant. In this connection, it is relevant to examine paragraphs 11, 12 and 13 of the impugned decision. In the said paragraphs, the learned magistrate states as follows;

“11. In mitigation the accused submitted, through his counsel that he is of good character. He is 65 years old and he does not have any family to look after him in Fiji. He is sorry for what happened. He has no previous conviction and has shown genuine remorse.

12. He has pleaded guilty early. However, the court notes that he took the plea during the trial. Mr. Isireli Fa, his counsel, to pains (sic) to inform the court that this was his earliest possible juncture to plead guilty. The accused was a client of his deceased brother Mr. Tevita Fa. It took time to relocate the files from Mr Tevita Fa’s office and the delay was caused due to the administrative aspects of shifting all of Mr. Tevita Fa’s clients and files to his office.

13. Mr. Isireli Fa submitted substantive mitigation and I take note of them.”

17.	It is evident from the above paragraphs that the learned magistrate has clearly considered the fact that the appellant was a first offender as a mitigating factor. However, it is not clear whether the appellant’s guilty plea was considered to grant any discount.

18.	The learned magistrate has not followed the ‘two-tiered’ method of sentencing which is widely applied in Fiji but seems to have followed what is termed as the ‘instinctive synthesis’ method when he sentenced the appellant.

19.	The instinctive synthesis approach in sentencing is not new to this jurisdiction as several examples can be found where the sentencing courts have applied the instinctive synthesis method especially in dealing with more than one offence in the same case. In these cases where the instinctive synthesis approach is applied, the sentence for the main or the more serious offence is determined first, based on the two-tiered approach where mathematical values are assigned or allotted to the aggravating and the mitigating factors. However, the same process is not followed or repeated with regard to the other offences but the instinctive synthesis approach is applied to determine the appropriate sentences for those offences.

20.	It stands to reason that, to repeat the process of assigning mathematical values to the same factors in the same case with regard to offences with different tariff bands makes the sentencing process rather complicate and confusing. By following the instinctive synthesis method where the sentencer is not required to allocate mathematical values to the relevant circumstances at different stages of sentencing, but where the sentence is determined rather intuitively after considering all the circumstances; the aforementioned complication can be avoided. (See State v Maharaj [2016] FJHC 775; HAC129.2012, State v Vasu [2016] FJHC 704; HAC172.2015, State v Bogi [2016] FJHC 645; HAC70.2014, State v Vulaono [2016] FJHC 546; HAC119.2009S.)

21.	However, in my view, the provisions of section 17 of the Sentencing and Penalties Decree 2009 can be applied in cases where the offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, if the sentencer wants to apply the two-tiered method of sentencing without having to encounter the aforementioned complication.

22.	Coming back to the use of instinctive synthesis approach in this jurisdiction, it is noted that the two tiered method was not followed in sentencing the offender for the offence of manslaughter in the case of State v Colaisauilagi [2013] FJHC 347; HAC 051.2012.

23.	In the judgment of the Supreme Court in Qurai v State [CAV24 of 2014; decided on 20 August 2015], Marsoof J (Chandra J and Calanchini J agreeing) said thus;
“It is significant to note that the Sentencing and Penalties Decree does not seek to tie down a sentencing judge to the two-tiered process of reasoning described above and leaves it open for a sentencing judge to adopt a different approach, such as “instinctive synthesis”. By which is meant a more intuitive process of reasoning for computing a sentence which only requires the enunciation of all factors properly taken into account and the proper conclusion to be drawn from the weighing and balancing of those factors.”

24.	Considering the above, I cannot find that the learned magistrate fell into error by not following the widely applied two-tiered approach and applying what appears to be the instinctive synthesis method in sentencing the appellant in this case. However, the impugned sentencing decision does not adequately explain the manner in which all relevant circumstances were considered in arriving at the sentence. Especially concerning the guilty plea. When the instinctive synthesis method is used, it is imperative that the sentencer clearly indicate all factors properly taken into account and the proper conclusion to be drawn from the weighing and balancing of those factors in the written decision as highlighted in the aforementioned judgment in Qurai v State (supra).

25.	The established tariff for the offence of dangerous driving occasioning death is a term of imprisonment between 2 years and 4 years. (Sharma v State [2005] FJHC 464; HAA0097J.2005S) The sentence of 2 years imprisonment given for the first count in the instant case is therefore at the lowest end of the tariff.

26.	According to the summary of facts, the appellant had admitted that he saw the victim standing by the side of the road, the fact that he was driving over the prescribed speed limit and that the left side of the vehicle struck the victim which caused the victim to fall down on the road and that the vehicle partially went off the road. There is no explanation for this conduct of the appellant. The learned magistrate has considered the fact that the appellant has no previous convictions and the fact that he is remorseful as mitigating factors. The learned magistrate has also considered the fact that appellant was 65 years old at the time of sentencing. These circumstances justify a sentence of 2 years imprisonment.

27.	As mentioned before, it is not clear as to whether or not a discount was given for the guilty plea. Appellant had pleaded guilty about six and a half years after he was charged. I note that the case was adjourned for extremely long periods on more than one occasion and the matter had been postponed at least on four occasions due to the non-availability of the magistrate. The amended charges to which the appellant pleaded guilty were filed on 21/10/14 and the first occasion the appellant’s plea was taken for these amended charges was on 20/01/16, the day he pleaded guilty. I also note that the appellant was not present in court for this case for almost one year soon after the charges were amended. That is from 16/12/14 till 02/12/15.

28.	It was submitted on behalf of the appellant that the delay in pleading guilty to the charges was caused due to the administrative aspects of shifting files from the office of the appellant’s previous counsel who had passed away.

29.	Considering the fact that the guilty plea was entered after this case had been in the court system for nearly six and a half years and the fact that the plea was entered after the hearing of the case commenced, I cannot agree with the submission made on behalf of the appellant that the guilty plea entered in this case is an early guilty plea.

30.	In terms of section 4(2)(f) of the Sentencing and Penalties Decree, in sentencing an offender, the sentencing court should consider not only whether the offender pleaded guilty to the offence, but also the stage in the proceedings at which the offender pleaded guilty. Therefore, though an offender may receive a reduction in the sentence by pleading guilty to the offence charged, the longer the offender takes to plead guilty, the lesser the reduction he/she will receive.

31.	After considering the circumstances of this case based on the case record, I am inclined to hold the view that the appellant should receive a reduction of the sentence based on the guilty plea. Since the impugned sentencing decision does not indicate that a discount was given for the guilty plea, I consider that the first ground of appeal has merit.

Ground 2
32.	Now the question is whether the learned magistrate erred by not suspending the aggregate sentence. Sections 26(1) and 26(2) of the Sentencing and penalties Decree provides that a magistrate may suspend the sentence if the period of imprisonment does not exceed 2 years.

33.	It is submitted on behalf of the appellant that the learned Magistrate could have suspended the sentence considering the fact that the appellant was a first offender, that he had pleaded guilty, that he was 65 years old at the time of sentencing and the fact that the learned magistrate has taken the view that there are no aggravating factors.

34.	I concur with the position endorsed in the case of Cooksley (supra) with regard to suspending sentences in cases of death by dangerous driving. That is, when a person is killed as a result of dangerous driving, no matter what the mitigating circumstances, normally, a custodial sentence should be imposed.

35.	The appellant relies on three authorities where offenders were sentenced for the same offence in order to convince this court that the sentence imposed on the appellant should have been suspended.

36.	The first case is Marau v State [1991] FJHC 114; [1990] 36 FLR 242. The appellant submits that in this case, the High Court set aside the immediate custodial sentence imposed by the Magistrate Court. The case of Marau (supra) had been decided when the maximum penalty for the offence in question was 5 years as clearly explained in the case of Sharma v State (supra). Further, the two cases Guilfoyle (1973) 57 Cr. App. R. 549 and Boswell and others (1984) 6 Cr. App. R. 257 which were relied upon in the case of Marau were superseded by the case of Cooksley (supra) which was decided on 03rd April 2003.

37.	The second case the appellant relies on is, Lal v State [2014] FJHC 530; HAA009.2013. In this case, the High Court suspended the whole sentence of 2 years imprisonment where the learned Magistrate had partly (10 months) suspended the said sentence by ordering that the accused should serve only 14 months forthwith. However, I do not find any reasons in the said judgment for suspending the whole sentence.

38.	The third case is State v Apted [2015] FJHC 653; HAR002.2015 where the High Court exercising its revisionary jurisdiction, imposed an imprisonment term of 2 years and suspended it for 3 years. It appears that the learned Judge had taken into account that the accused was 85 years old, the previous good character and the guilty plea entered at the earliest opportunity to suspend the whole sentence. 

39.	Needless to say that this court is not bound by its own decisions. It should also be noted that the circumstances of the appellant’s case is not in any way identical with the circumstances of the case of Apted (supra) above.

40.	Further, I have noted that the sentence was not suspended by this court in the following cases where the accused was charged with the offence of dangerous driving occasioning death,;
•	State v Bulivorovoro [2014] FJHC 930; HAA11.2014;
•	Kumar v State [2014] FJHC 775; Criminal Appeal 172.2014;
•	State v Chand [2014] FJHC 210; HAM199.2013S.

41.	In the circumstances, I am not convinced that the learned magistrate erred by failing to suspend the sentence imposed on the appellant in this case. Therefore, the second ground is not made out.

42.	Based on my conclusion in respect of the first ground, I consider it appropriate to grant a discount of 3 months in view of the guilty plea.

43.	Accordingly, the sentence for the first count is reduced to 21 months imprisonment. This sentence to be served concurrently with the sentence of three months the appellant received for the second count which is not challenged. Pursuant to section 18(3) of the Sentencing and Penalties Decree, I use my discretion, not to fix a non-parole period.

44.	Further, I find that the period of 6 months which the appellant was disqualified from driving is manifestly lenient considering the circumstances of this case. I have given the opportunity for the appellant to explain why the said period of disqualification should not be increased and it was submitted that the appellant has no concerns regarding the period of disqualification. Therefore, I order that the appellant is disqualified from driving any vehicle for a period of 2 years commencing from the date he is released from prison.

45.	In the result;
a)	Appeal allowed only on the first ground;
b)	Accordingly the sentence delivered on 27/04/2016 in Traffic Case No. 2168/09 is varied as follows;
i.)	The sentence for the 1st count is reduced to 21 months imprisonment; and
ii.)	Appellant is disqualified from driving any vehicle for the period of 2 years commencing from the date of his release from prison.

					Vinsent S. Perera
			     	          JUDGE

Solicitor for the Appellant 	: Jiten Reddy Lawyers, Nakasi
Solicitor for the State	: Office of the Director of Public Prosecution, Suva.