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State v Chand [2016] FJMC 18; Traffic Case 50.16 (17 February 2016)

IN THE MAGISTRATES COURT AT SUVA

Traffic Case No.50/16

STATE

-v-

NILESH SANJAY CHAND

Cpl: luke for the Prosecution
Mr. Ali for The accused appeared

SENTENCE

1] You Nilesh Sanjay Chand, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

FIRST COUNT

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 No. 35 Of 1998.

2] Nilesh Sanjay Chand on the 5th day of December 2015 at Suva in the Central Division drove a motor vehicle registration number FA208 at Waimanu Road whilst there was present in 100 millilitres of his blood a concentration of 149.6 milligrams of alcohol which was in excess of the prescribed limit.

3] You pleaded guilty to the charges on 10/2/16 and I am satisfied with your pleas are unequivocal and that you understand the repercussion of your pleas.

4] This court convicts you as charged.

5] You admit Summary of facts before this court. that On the 5th day of December 2015 at about 2250 horus PC 2595 Roy of SC/Highway (PW1) whilst on Breathlyzer Test Operation with the accompany of WSC 4166 Elizabeth and PC 4928 Lasarusa along Waimanu Road, stopped vehicle registration number FA 208. PW1 approached the driver one Nilesh Sanjay Chand (Accused) and tested him on Dragger Alcotest machine 7410 and the reading was 82 microgrammes of alcohol present in 100 mls of his breath.PW1 arrested Accused and escorted him to Nabua Police Station where he was further tested on Dragger Alcotest 7110 by PC 2662 Shiu PW2 and the reading was 149.6 milligrammes of alcohol which is equivalent to 68 microgrammes of alcohol in 100 millilitres of breath which is above he prescribed limit.Accused was escorted back to Totogo Police Station and handed over to Totogo Chargeroom where he was searched and locked in the cell.Later accused was released from the cell and interviewed under caution by PC 4780 Mustaque PW3 and formally charged by PC 5096 Prinal PW4 for the offence of Driving Motor Vehicle Whilst There is Present in the Blood a Concentration of Alcohol in Excess of the Prescribed Limit.Accused is a holder of a driving license no. 886436 for group 2 and to expire on 31.07.16.Accused has been bailed to attend Suva Magistrate on10.02.16.

6] The offence in issue has describe in section 103 of the Land Transport Act says;

" Sec:103. (1) A person who –

(a) drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his blood; or

(b) fails or refuses to undergo a breath test or breath analysis when required to do so by a police officer, commits and offence.

(2) A person who is convicted of an offence under subsection (1) is liable to the prescribed penalty.

(3) A person convicted of an offence –

(a) under section 102(1) is not liable to be convicted of an offence under subsection (1) of this section arising out of the same circumstances;

(b) under subsection (1) of this section is not liable to be convicted of an offence under section 102(1) arising out of the same circumstances.

(4) A person may be charged jointly under subsection (1)(a) or (1)(b) of this section but the person shall not-

(a) if convicted of an offence under subsection (1)(a), be convicted also for an offence under subsection (1)(b); or

(b) if convicted for an offence under subsection (1)(b), be convicted also for an offence under subsection (1)(a).

7] The penalty for offence as follows; ( sec: 114)

"Sec: 103(1)(a)

Driving or attempting to drive with excess alcohol in the blood-

a) first offence - $2000/2 years and mandatory disqualification for from 3 months to 2 years

b) second offence - $5000/5 years and mandatory disqualification for from 6 months to 4 years

c) offence if 2 or more convictions for similar offence within the 5 years preceding the offence - $10000/10 years and mandatory disqualification for from 12 months to 5 years"

8] You have filed written mitigation and stated that you are 35 years of age originally from Nadi and presently lives at Ellis Place, Tamavya, and Suva which is a company flat. Employed at Prouds Suva Central as Shop Manager and also oversees the day to day operations of Prouds shops situated at the MHCC and Damodar City. You married with twin daughters who both attend Year 1 at Samabula Primary School. Your mother lives with you and is very ill. You did not plan to commit the offence but was the victim of the circumstances. You seek not suspend your license as you needs to continue driving for the following reasons. To take his ill mother for chemotherapy at the Oncology Ward at the CWM Hospital every 2 weeks;To drop off and pick up his twin daughters to and from school;Open shops every morning since he hold all the keys.Meetings with clients in Suva and Head Office in Nadi; and Product marketing. You have not committed any traffic or other offences and have a clean driving record. You asked forgiveness of the court. You are remorseful of your offence. You are a first offender.

9] It is impossible not to suspension of your driving licence, as it is mandatory requirement to suspend the Driving Licence. 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 discretion to impose more than 3 months but may not impose-less."

10] But it is noticed by this bench that there is a contrary/ alternative provision to above has provided by Section 59(3) of the Land Transport Act 1998 giving discretion to bench on suspending. Said section states as follows:

"Sec:59(3) Whenever a person is convicted of an offence for which disqualification is part of the prescribed penalty, the Court may award up to 3 demerit points against the person. If it( the court) does not disqualify the person."

11] In 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] It is provides in 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."

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 offende60;ought to beto be a very strong mitigating factor in their favors. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences.

14] Thus according ting to the Sentencing Principles, you could be sentence to 2 years imprisonment. The intention of legislature is clear that no one able to control a vehicle under the influence of liquor.

15] To protect innocent pedestrians and property deterrent sentence is enacted by the legislation. In that sense you attract custodial sentence. But you are a first offender and you do have concern about it. Further you save court's time and resources. I therefore think you should be given another chance.

16] In this legal backdrop I do not wish to impose alternative sentence. You pay $500 for count one. 50 days in imprisonment in default. You are warned not to reoffend.And as it seems the suspension of your driving license adversely affecting lives of your defendant this court will act under sec:59(3) of LTA Act and issue 3 demerits.

17] Further this court would like to add permeant demerits would have more efficiency than temporary suspension of license for 3 months as the number of demerits limited it is amount to partial but permanent suspension of your driving license. Therefor one cannot pay fines for his sins and continue with endangering public lives be course after few offending the driving license of accused would be completely suspended.

18] Summary of sentence:

Count 1: $500 fine I/D 50 day's imprisonment and 3 demerits issued on Driving License. LTA must be notified on 3 demerits.

19] 28 days to appeal.

On 17th Feb 2016, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate-Suva