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State v Prasad [2012] FJMC 323; Traffic Case 16693.2012 (16 November 2012)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 16693/2012

STATE

-v-

SUREND PRASAD

Police Constable Joseph Filipe Raymond for the State
The accused appeared in person

Sentence

1] The accused is a law enforcement police officer, pleaded guilty to the following charge namely;

CHARGE

Statement of Offence (a)

FAILURE TO OBEY ROAD MARKINGS: Contrary to Regulation 70 (1) (a) (b) (2) and 87 of Land Transport (Traffic) Regulation 2000.

Particulars of Offence (b)

SUREND PRASAD on the 24th day of September 2012 at Suva in the Central Division being the driver of a motor vehicle registration number GN634 on Mac Arthur Street failed to obey the road marking which indicates the free flow of traffic.

2] The summary of fact is the accused, being the driver of a motor vehicle registration number GN634 on Mac Arthur Street failed to obey the road marking which indicates the free flow of traffic.

3] The accused pleaded guilty to the charge at first instance. In his mitigation he said that he is 44 years old, married with two children. Police officer by profession earns $400 fortnight. The accused elaborated the circumstance of offending. He said he was driving said police vehicle and CID police officer with him. Suddenly they saw a bench warrantee and he was told to stop the vehicle to apprehend the warrantee. While he stopped, he was booked for this offence by another police officer.

4] Section 87 of Land Transport (Traffic) Regulation 2000 gives penalty as Fixed Penalty $25 and Maximum Penalty $500 fine, 3 months imprisonment with 3 demerit points.

5] The accused said that he has been charged for same offence in the domestic inquiry. He tendered copy of charge sheet and Statement of DC 4000 to prove his circumstance of offending. The accused was charged before tribunal on defaulter register serial no. 62/2012, Totogo Police station for conduct prejudicial to good order and discipline of force, under section 60, Regulation 12(37) of Police regulations, Cap 85. The accused story is confirmed by the DC 4000's statement.

6] I now proceed to consider sentencing. The accused sought non conviction as any conviction will jeopardize his career and future prospects.

7] I 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] The accused has 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."

9] The Sentencing and Penalties Decree 2009 provides for absolute discharges. Section 43 states:

"43. (1) An order may be made under this Part

(a) to provide for the rehabilitation of an offender by allowing the sentence to be served in the community unsupervised;

(b) to take account of the trivial, technical or minor nature of the offence committed;

(c) to allow for circumstances in which it is inappropriate to inflict any punishment other than nominal punishment;

(d) to allow for circumstances in which it is inappropriate to record a conviction;

(e) to allow for the existence of other extenuating or exceptional circumstances that justify a court showing mercy to an offender."

10] Section 45 is the section governing discharges or releases without 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] Is this case attracted absolute discharge? The superior courts have guided what should be considered in ordering absolute discharge. In State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009), His Lordship Goundar J considered the principles upon which the discretion under the old section 44 of the CPC was to be exercised. His Lordship summarized the position:

"Subsequent authorities have held that absolute discharge without conviction is for the morally blameless offender, or for an offender who has committed only a technical breach of the law (State v. Nand Kumar [2001] HAA014/00L; State v Kisun Sami Krishna [2007] HAA040/07S; Land Transport Authority v Isimeli Neneboto [2002] HAA87/02. In Commissioner of Inland Revenue v Atunaisa Bani Druavesi [1997] 43 FLR 150 HAA 0012/97, Scott J held that the discharge powers under section 44 of the Penal Code should be exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the court has balanced all the public interest considerations."

12] In The State v Nand Kumar Cr. App. No. HAA014 of 2000L, an appeal against an absolute discharge for the offence of common assault, His Lordship Anthony Gates J( As he then was) said:

"The court, in its sentencing remarks, said rightly, it was faced with "a very awkward situation" for this accused was facing dismissal from his employment if a conviction were to be entered. Nevertheless, a discharge without conviction being entered, was not an appropriate sentence here. Absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches (R v O'Toole (1971) 55 Cr App p 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R v Kavanagh (unreported) May 16th 1972 CA)"

13] In this case, it shows that the accused had no idea of breaching law. The action happened spontaneously when they saw bench warrantee. They eagerly wanted to get warrantee down. It is an unfortunate incident, but technically it was a breach of law. I cannot see this is a concocted story by the accused. Detective Constable 4000 who was with the accused at the material time proves the accused's story. I therefore hold this is fit and proper case to exercise court discretion for absolute discharge.

14] I act under section 45(1) of the Sentencing and Penalty Decree 2009. I dismiss the charge without entering a conviction. The accused is acquitted and discharged.

15] 28 days to appeal

On 16th November 2012, at Nasinu, Fiji

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu