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State v Sami [2012] FJMC 331; Traffic Case 19655.2012 (4 December 2012)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 19655/12

STATE

-v-

SAMUEL MARIAPPA SAMI

Police Constable Joseph Raymond for the Prosecution
The accused appeared in person

SENTENCE

1. You, SAMUEL MARIAPPA SAMI, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

CHARGE:

FIRST COUNT

Statement of Offence [a]

DRIVING MOTOR VEHICLE WHILST THERE IS PRESENT IN THE BLOOD A CONCENTRATION OF ALCOHOL IN EXCESS OF THE PRESCRIBED LIMIT: Contrary to Section 103 (1) (a) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence [b]

SAMUEL MARIAPPA SAMI on the 27th day of November, 2012 at Nasinu in the Central Division drove a motor vehicle registration number LR 1624 along Ratu Dovi Road whilst there was present in 100 milliliters of his blood a concentration of 165 milligrams of alcohol which was in excess of the prescribed limit.

SECOND COUNT

Statement of Offence [a]

DANGEROUS DRIVING: Contrary to Section 98 (1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence [b]

SAMUEL MARIAPPA SAMI on the 27th November, 2012 at Nasinu in the Central Division drove a motor vehicle registration number LT 1624 on Ratu Dovi Road in a manner which was dangerous to the public having regards to all the circumstances of the case.
2. You pleaded guilty to the charges and I am satisfied with your pleas are unequivocal and that you understand the repercussion of your pleas.

3. SUMMARY OF FACTS (Which you have admitted) can be reproduced as follows;

(1) Accused Samuel Mariappa Sami, 66 years, retired of Unit 3, 23 Mount View Road, Cessnock, NSW 2325.

(2) PW1 Mohammed Nausad, 31 years, Taxi Driver of Lot 18 Mokosai Place, Nasinu.

(3) PW2 Kasanita Wati, 31 years, Clerk of Kalabu Housing.

(4) PW3 PC 4286 Etuate, 40 years, Police Officer.

(5) PW4 Sergeant 1447 Virendra Singh, Police Officer.

(6) PW5 PC 3594 Shaneel, Police Officer of Valelevu Police Station.

(7) PW6 PC 4347 Mika, Police Officer of Valelevu Police Station.

(8) PW7 WPC 3748 Atishna, Police Officer of Valelevu Police Station.

(9) On the 27th day of November, 2012 at about 2130 hours, PW1 was driving vehicle registration number LT 5225 along Ratu Dovi Road and was heading towards Laqere side.

(10) Upon approaching the Junction of Nadawa Road, PW1 noticed the accused was heading in the opposite direction and was driving vehicle registration number LR 1624 in a zig zag manner.

(11) Accused than drove his vehicle into PW1's lane and to avoid the head on collision, PW1 moved his vehicle towards the left hand side.

(12) Accused than bumped on the rear right side of PW1 vehicle.

(13) Due to the impact PW1 vehicle bumped PW2 whilst she was walking along Ratu Dovi Road, opposite side of Nadawa Junction.

(14) PW3 escorted Accused to Nabua Police Station for breath analysis test.

(15) At 2252 hours Nabua Police Station, PW4 completed the breath analysis test of Accused in alcotest 7110 machine and the result was that there was present in 100 milliliters of accused blood a concentration of 165 milligrams of alcohol which is equivalent to 75 micrograms of alcohol per 100 milliliters of breath.

(16) PW5 visited the scene of accident and drew a rough sketch plan and took all necessary measurements.

4. The first offence describe in section 105 of the Land Transport Act says;

"105. - (1) No person who is a holder of learner's permit, provisional licence, heavy goods vehicle driver's licence or public service vehicle driver's licence shall, whilst the concentration of alcohol in the blood of that person is more than 0.00 grams per 100 millilitres of blood, drive or attempt to drive -

(a) in the case of a holder of a learner's permit or provisional licence, any motor vehicle; or

(b) in the case of a holder of a heavy goods vehicle licence or public service vehicle licence, a heavy goods vehicle or public service vehicle.

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to the prescribed penalty.

(3) Where a person is found guilty under this section and the person has no previous conviction for an offence under this section the court may, having regard to the circumstances of the case, discharge the person without conviction, or substitute any lesser penalty than that prescribed."

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

6. Second Offence described in section 98(1) of the said Act. It says;

"98. - (1) Any person who drives a motor vehicle on a public street recklessly, or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature, condition and use of the public street and the amount of traffic which is actually at the time or which might reasonably be expected to be on the public street, commits an offence and, subject to subsections (2) and (3), is liable upon conviction to the prescribed penalty."

7. The penalty for second offence as follows;

8. I now turn to your mitigation. You have pleaded guilty and save court's time and resources. I am mindful of that. In your mitigation you said that you are 66 years of retired divorcee. You are a holder of clean driving licence for past 25 years. You are an Australian citizen. You asked forgiveness and leniency of this court. You are remorseful of your offence. You promise that you will not re offend. You asked non conviction as you are a first offender.

9. You have asked non conviction and absolute discharged. The absolute discharge must be sparingly used. In State -v- Nand Kumar Crim. App. No. HAA0014.2000L, Gates J ( As he then was) said:

"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. R. 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R -v- Kavanagh (unreported) May 16th 1972CA)"

10. In this case, summary of facts indicates you were drunk and drove a vehicle. On top of that you met with an accident. You were out of control. You may have taken granted for Fiji road rules. Though you have a clean licence, you do not deserve non conviction or absolute discharge. Drunken behind the wheel creates serious repercussions some may lose their life even. Thus, I do not consider non conviction.

11. In State v Ratuvou [2002] FJHC 140; HAA0060J.2002S (2 August 2002) her Ladyship Justice Nazhat Shameem differentiates the disqualification of Driving License under section 103(1) and 98(1) as follows;

"What is mandatory is a period of disqualification. The minimum mandatory term of disqualification (on first conviction) is 3 months. The Magistrate has a discretion to impose more than 3 months but may not impose-less.

12. However, you are a first offender. In sentencing, 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."

13. 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.

14. 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 oto be a very strong mitigaitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences. (Emphais mip>

15. In5. 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 oers."