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State v Naidu - Sentence [2018] FJMC 126; Criminal Case 397 of 2016 (14 September 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 397 of 2016
STATE
-v-
KRISHNA NAIDU

For Prosecution : Inspector Lenaitasi [ Police Prosecution ]

For the Defendant : Ms Henao [ Legal Aid Commission ]

Date of Sentence : 14^th day of September 2018

SENTENCE

1. KRISHNA NAIDU, you are here, to be sentenced upon pleading guilty to the following charge:

Statement of Offence

Driving Motor Vehicle Whilst There Was 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.

Particulars of Offence

Krishna Naidu, on the 18^th day of January, 2016 at Tavua in the Western Division drove a motor vehicle registration number CT. 550 on Yaladro Tavua whilst there was present in 100 millilitres of his blood a concentration of 193 milligrams of alcohol which was in excess of the prescribed limit.

2. I am satisfied that your plea is unequivocal and that you understand the repercussion of your plea.I have found you guilty accordingly.
   
3. You admitted the facts which reveal that you were approached by two patrolling policemen. The policemen saw your vehicle parked at a junction with you in the driver’s seat and the engine of the vehicle running. They questioned you and you told them that you were filling the water for the radiator. You wanted to drive away but you were stopped and they noticed that you heavily smelt of alcohol. You admitted that you had drank alcohol. You were arrested and a blood sample was taken for testing. The result came back positive for ethanol or alcohol. You had 193 milligrams in 100 millilitres of your blood. You were later formally interviewed by the police where you admitted driving your vehicle while drunk.
   
4. The prescribed legal limit is 80 milligrams per 100 millilitres of blood.
   
5. You exceeded that by 113 milligrams.
   
6. You were kept in police custody overnight.
   
7. You have no previous conviction.
   
8. In your mitigation you say that you are 51 years old, you earn $200 weekly as vegetable whole saler, you have 2 children, you are the sole breadwinner, you are repairing your house damaged by the Cyclone Winston, you are remorseful and you say that you need to drive or your license as you make daily trips to Tavua and monthly to Suva in relation to your business.
   
9. You have pleaded guilty on the trial date which is approximately 1 year after getting a lawyer.
   

Law

10. For driving with excess alcohol above the prescribed limit, you can be fined up to $2,000 and or imprisoned up to 2 years with a mandatory disqualification between 3 months to 2 years.
    

Tariff

11. There is no set sentencing tariff for this offence.
    
12. Disqualification from driving is mandatory.
    
13. The length of disqualification can be determined by assessing the standard of driving shown, any previous traffic violations, the need to protect the public from dangerous or drunk drivers, good character of the defendant and whether there is any serious hardship to the family and whether driving is a source of income [ State v Joel Sahai Case No. HAAR 002 of 2017 (29^th August 2017) ].
    

Starting Point

14. Considering the circumstance of your case, I deem a fine to be an appropriate starting point.
    
15. This will be a $500 fine.
    

Aggravating Factor

16. You exceeded the legal limit by approximately by 113 milligrams. This is excessive.
    
17. Your sentence is increased by $200 because of these.
    
18. Your interim sentence is a $700 fine.
    

Mitigating Factors

19. For your past good character and cooperation with the police during your police interview, your fine will be decreased.
    
20. Although time in custody is not necessarily mitigation, I will consider it here as it was only 1 day.
    
21. You are elderly and you help look after your family.
    
22. The charge has been looming for about 2 years.
    
23. Your fine is reduced by $300.
    
24. Your current sentence is a $400 fine.
    

Guilty Plea

25. I don’t regard your plea of guilty as early.
    
26. However, I will afford you some consideration for pleading guilty nonetheless.
    
27. Your fine is reduced by $100.
    
28. Your fine now stands at $300.
    

Disqualification

29. As I said earlier, disqualification from driving is mandatory.
    
30. Considering the circumstance of your offending and your reliance on your ability to drive and transport your goods to support yourself and your family, I will order that you be disqualified from driving for only 4 months.
    

Final Sentence

31. In summary, your sentence is as follows:
    

$300 fine to be paid in 28 days.

In default, 14 days in imprisonment.

You are disqualified from driving for the next 4 months.

[ surrender your driving license ]

32. You have 28 days to appeal to the High Court.
    

_____________________

LISIATE TV FOTOFILI

Resident Magistrate

At Tavua this 14^th day of September, 2018.