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State v Sitiveni [2011] FJMC 76; Traffic Case 9074.2010 (11 July 2011)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 9074/2010

STATE

v

SITIVENI RAIKANIKODA

Sgt Volavola for the Prosecution
The accused present and appeared in person

SENTENCE

1. You, SITIVENI RAIKANIKODA, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

Statement of Offence [a]

CARELESS DRIVING – Contrary to Section 99 (1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

SITIVENI RAIKANIKODA, on the 10th day of November, 2009 at Nasinu in the Central Division drove a motor vehicle along Khalsa Road without due care and attention.

2. SUMMARY OF FACTS can be summarized as follows;

(1) (Accused) Sitiveni Raikanikoda, 45 years, Legal Inspector of Lot 5 Lagakali Road, Kalabu.

(2) (PW1) Maheshwar Prasad, 40 years, unemployed of Khalsa Road.

(3) On the 10th day of November, 2010 at about 7.40 pm at Khalsa Road a Vehicle Registration Number EC332 driven by (PW1) was bumped by one Vehicle Registration Number EP486 driven by (Accused). After (PW1) passed the Digicel Building, (PW1) noticed a taxi reversing from the driveway beside Digicel.

(4) (PW1) slowed down and just when he did so, (Accused) came from the back and bumped the back part of (PW1) vehicle and caused damaged the rear bumper and lights.

(5) No one was injured during the accident.

(6) The matter was reported at Valelevu Police Station and the accident was attended by (C-1) PC 3200 Goundar.

(7) (Accused) was later interviewed under caution and warned for Prosecution

4. The offence describe in section 99(1) of the Land Transport Act says;

"99. - (1) A person who drives a motor vehicle on a public street without due care and attention commits an offence and is liable on conviction to the prescribed penalty.

(2) A person who drives a motor vehicle on a public street without due consideration for other persons using the public street (including but not limited to, driving at an unreasonably slow speed) commits an offence and is liable on conviction to the prescribed penalty."

5. The penalty is mentioned in section 114 of Land Transport Act. That is;

6. The Penalty for second offence is $200 and 30 dais imprisonment. Hence, for this charges you could sentence three months imprisonment, $ 500 fine for first count and 3 days imprisonment and $200 fine for second count. But you have pleaded guilty and save court's time and resources. I am mindful of that. In your written mitigation you said that you are 45 years old, married with 3 children. You are working as a Legal Inspector/prosecuting Officer for the Fiji Commerce Commission for 21 years. You are the sole bread winner of your family, looking after your children after death of your wife in 2008. Two of your children are in the primary school and youngest in primary school. Your work and family commitments involve lot of driving as you cover all Eastern Division Courts Such as Navua, Suva, Nasinu, Nausori, Vunidawa and Tailevu. Your Driving Licence is vital for due execution of your work commitments. Further you said you are a privately sponsored fourth year law student of the University Of Fiji. You asked your Driving Licence not to be suspended. You asked non conviction as it jeopardised your future. I am mindful of these facts. You said the accident was inevitable and it occurred due to complete fault on the LT 1272 taxi driver.

7. I now draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.

Section 4(2) provides;"In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

8. You asked non conviction Section 16. (1) of said Decree gives powers to that . It says "In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including —

(a) the nature of the offence;

(b) the character and past history of the offender; and

(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects." (Underline is mine)

9. Section 31(2) provides to impose lesser fine than maximum.

"The maximum fine that a court may impose under sub-section (1) is the maximum amount specified in the provision which prescribes the relevant offence, and a court may impose any lesser fine than the maximum."

10. Section 45(1) gives power to record a non conviction. It Says

"A court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction"

11. I now draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

Now I turn to the Case law in this regard.

12. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders&#1ght to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court halored and exhausted all other alternative sentences. (Emphasize is mine)

13

13. In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."

14. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort especially where a&#irst offender is conceconcerned s the chae charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. (Emphasize is mine).

15. Singh v The State [2000] FJHC 115; Haa0079j.2000s (26 October 2000) Shameem J went on saying;

"However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."

16. Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Shammem J again stressed;

"The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

17. In State v Mocevakaca [199HC 87; [1990] 36 FLR 19LR 19 (14 February 1990) Fatiaki J (As he then was) dealt with similar type of situation. His Lordship stressed on sentencing in young offenders. His Lordship added; "This court has said before and I say it again that our prisons are already too full of young Fijian men and the courts have a duty to try and reverse that trend wherever it is possible and just. In other words, every effort must be made to keep young first offenders out of prison even I might add at the risk of being lenient.

Needless to say, in the case of young first offenders there can rarely ever be any conflict between the general public interest and that of the offender.

If I may say so society has no greater interest than that its young people should became useful law-abiding citizens and the difficult task of the Courts is to determine what punishment or treatment gives the best chance of achieving that end. The realisation of that objective is the primary and by far the most important consideration in sentencing young first offenders." (Emphasize is mine).

18. I note you are a first offender. Thus as a first offender and according to the Sentencing Principles and your weight of mitigation and attendant circumstances attract you to give a non conviction. I therefore think you should be given another chance. In this legal backdrop and facts, I wish to act under section 45(1) of the Sentencing and Penalty Decree 2009.

I therefore dismiss the charges against you.

You are discharged and you should pay $50 as a State Cost. This sentence will not affect your future or carrier.

19. 28 days to appeal.

On 11th July 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate