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State v Lata [2012] FJMC 332; Traffic Case 16238.2012 (5 December 2012)

IN THE MAGISTRATES COURT AT NASINU

Traffic Case No. 16238/12

STATE

-v-

SHEREEN LATA

Police Constable Joseph Raymond for the Prosecution
The accused appeared and represented by Mr. Jitendra Reddy

SENTENCE

1. You, SHEREEN LATA, 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]

SHEREEN LATA on the 23rd day of September, 2012, at Nasinu in the Central Division drove a motor vehicle registration number EK813 along Ratu Dovi Road whilst there was present in 100 milliliters of her blood a concentration of 96.8 milligram's 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 Land Transport Act 35 of 1998.

Particulars of Offence [b]

SHEREEN LATA on the 23rd day of September, 2012, at Nasinu in the Central Division drove a motor vehicle registration number EK813 along 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) Shereen Lata Accused, 22 years, Domestic Duties of Lot 28 Stage 2 Beaumont Road, Narere being the driver of vehicle registration number EK 813.

(2) Saiban Ali PW1, 51 years, Taxi Driver of Lal Singh Road, Waila being the driver of vehicle registration number LT3367.

(3) PC 2875 Epeli Qarau PW2, Police Officer of Nabua Police Station.

(4) PC 3721 Ajesh PW3, Police Officer of Valelevu Police Station.

(5) Sergeant 2756 Naivasi Talemaitoga PW4, Police Officer of Valelevu Police Station.

(6) PC 4347 Mikaele Ratuvou C1, Police Officer of Valelevu Police Station.

(7) On the 23rd day of September, 2012 at about 2150 hours, PW1 was driving along Ratu Dovi Road heading towards Nadawa.

(8) Accused was also driving along Ratu Dovi Road towards Suva.

(9) PW1 was driving along Ratu Dovi Road passing Magbool Road junction when Accused vehicle which was travelling from the opposite side came to his lane and bumped the right front side of his vehicle.

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 made useful oral and written mitigation. I am mindful of that. He mentioned;

"The accused is 22 years of age being born on 19/4/1990. She has studied up to Form 6 at Ahmadiya Muslim College. Shereen has also done a course in Certificate in Business Management from the Fiji National University. Further to this, she has done a course in MYOB and Advance MYOB from Aptech College and Australian Pacific Territory Institute. Apart from this, she has done a course on Fundamentals of Age Care from Caregivers Services International (Fiji) Limited.

The accused is a first offender. This is the first time for her to appear in any Court of law and promises that this will be her last as this is a good lesson learnt. She has been driving since 2007 which is almost 6 years now and has never been involved in any accident before. Apart from this incident, she has never been booked by any Police or LTA Officers."

9. You are a holder of clean driving licence for past 6 years. 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. I elaborated the circumstance of offending.

10. 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.

11. 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."

12. 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.

13. 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 ought to be a verong mitigaitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored andustedother alternative sentences. (Emphasize is mine)

14. In Pra> Prasad vsad 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."