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State v Prasad - Sentence [2018] FJMC 118; Criminal Case 36 of 2018 (24 August 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 36 - 2018

STATE
-v-
AMITESH PRASAD

For Prosecution: Sgt Samy [ Police Prosecution ]

Accused: In person, waived right to counsel

Date of Sentence: 24^th day of August 2018

SENTENCE

1. AMITESH PRASAD, you have pleading guilty to the following charge:
   

Statement of Offence

Driving Motor Vehicle Whilst There Was Presence in the Blood a Concentration of Alcohol In Excess of the Prescribed Limit: Contrary to section 103 ( 1 ) ( a ) and 114 of Land Transport Breathe Test and Analysis Regulation 2000.

Particulars of Offence

AMITESH PRASAD, on the 21^st day of April, 2018 at Tavua in the Western Division drove a motor vehicle registration number CY 443 in Tavua Town whilst there was present in 100 millilitres of his blood a concentration of 184.8 milligrams of alcohol which was in excess of the prescribed limit.

2. I am satisfied that your guilty plea is voluntary and that you understand the consequences of your plea.
   
3. The statement of the offence should have made reference to the Land Transport Act but this omission is not substantially prejudicial to you.
   
4. I have found you guilty.
   
5. You admitted the facts which revealed that there was a report received by police that there was somebody driving your vehicle under the influence of liquor. Police attended to the report where you were seen parked at a restaurant in Tavua town. You were in the driver’s seat and when police approached you, you smelt of liquor and you were taken to the Tavua Police Station to be tested.
   
6. The result after your breath was tested showed that you had 84 micrograms of alcohol per 100 millilitres of breath.
   
7. The prescribed concentration of alcohol or legal limit is 80 milligrams of alcohol in 100 millilitres of blood.
   
8. The reading on a breath analysing instrument in microgrammes of alcohol per 100 millilitres of breath is to be multiplied by 2.3 in order to arrive at the number of milligrams of alcohol in 100 millilitres of blood [ section 3 of the Land Transport ( Breath Tests and Analyses ) Regulations 2000.
   
9. After calculation, you exceeded the legal limit by approximately 100 milligrams.
   
10. When questioned by police, you admitted driving your vehicle. You admitted drinking beer. You drove your friends to town to get some food. You admitted that you were a bit drunk. You accepted the result after your breath was tested.
    
11. You are a first offender.
    
12. In your mitigation you say that you are willing to pay a fine. Your promise not to re-offend. You are a carpenter and you support your wife and 2 children.
    
13. You say that you need your driving license for work. You drive from Nausori and return.
    
14. You have spent 1 night in police custody.
    

MAXIMUM SENTENCE

15. In your case Mr Amitesh Prasad, you can be fined up to $2,000 and or imprisoned up to 2 years and mandatorily disqualified from driving between 3 months to 2 years.
    

SENTENCING RANGE or SENTENCING TARIFF

16. There is no set tariff for this type of offence as far as I am aware.
    
17. A fine of $1,000 together with a 16 month imprisonment term and being disqualified from driving for 12 months for a person who was drunk and in control of a government vehicle has been accepted to be appropriate. This was for a first time offender [ Orisi Serutanoa v The State Criminal Appeal No. HAA 007 of 2012 ( 31^st May 2012 ) ].
    

Starting Point

18. In your case Mr Prasad, I select a starting point of 2 months imprisonment.
    

Aggravating Factor

19. You exceeded the prescribed limit by 100 milligrams which is excessive.
    
20. You were driving around others in the vehicle on a public street in your drunken state, which makes it dangerous for you, them and the public.
    
21. Your sentence is increased by 2 months imprisonment.
    
22. Your interim sentence now sits at 4 months imprisonment.
    

Mitigating Factors

23. You will receive some discount or reduction as you don’t have any previous conviction.
    
24. You will receive some reduction for cooperating with the police when they questioned you.
    
25. You have a family to look after and this I will take into account as mitigation.
    
26. Although time in custody is not strictly a mitigating factor, I will consider here as it was 1 night and not too excessive.
    
27. Your sentence is reduced by 2 months.
    
28. Your interim sentence now sits at 2 months imprisonment.
    

Guilty Plea

29. You have pleaded guilty early.
    
30. Your sentence is further reduced by 1 month because of this.
    
31. This brings your interim sentence to 1 month imprisonment.
    

Suspended Term.

32. I can suspend your sentence whether in whole or in part pursuant to section 26 ( 1 ) and ( 2 ) ( b ) of the Sentencing and Penalties Act 2009, if your sentence is below 2 years imprisonment.
    
33. Considering the circumstance of your case, I’m inclined to suspend your sentence in whole.
    
34. You will not be let off that easy though. I will order that you pay a fine.
    
35. I will still disqualify you from driving.
    
36. I am not persuaded by your submission that you need it for work as you support your family. You needlessly put lives at risk when you get behind the wheel while drunk. You will have to make alternative travel arrangements as a consequence.
    

SUMMARY

37. Your final sentence is this:
    

1 month imprisonment.

This is suspended for the next 18 months or 1 year 6 months.

You are to pay a $400 fine which is to be paid in 28 days. In default, 2 weeks imprisonment.

You are disqualified from driving for 3 months effective from today.

[ surrender your license ]

38. Commit any other offence in the next 18 months and your suspended term may be activated.
    

[ suspended term explained to the defendant ]

39. 28 days to appeal.
    

....................................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at TAVUA this 24^th day of August, 2018.