State v Prasad [1994] FJHC 111; Haa0039d.93s (6 September 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0039 OF 1993

Between:

THE STATE
Appellant

And

KESHO PRASAD
(s/o Maha Deo)
Respondent

Counsel: Ms. Kaimacuata for Appellant
Mr. S. Sharma for Respondent

Hearing: 1st September 1994
Decision: 6th September 1994

DECISION OF PAIN J.

This is an appeal by the Director of Public Prosecutions against a partial disqualification from driving imposed on the Respondent in respect of a charge of dangerous driving.

The pertinent history of the matter (ignoring the further charges of failing to produce a driving licence and failing to produce a certificate of insurance which are not relevant to the appeal) is as follows:

1. On 11.11.92 the Respondent pleaded guilty to the charge of dangerous driving and was sentenced to 9 months imprisonment suspended for 18 months. He was also disqualified from holding or obtaining a drivers licence for 6 months.
   
2. The Respondent, who was unrepresented at the hearing, then consulted a solicitor regarding the severity of this sentence.
   
3. On 20.11.92 the Respondent's solicitor wrote to the Police advising that the Respondent intended to appeal or seek a review of the sentence.
   
4. On 26.11.92 a copy of the record, signed by the Magistrate, was made available to the solicitor for the Respondent for the purposes of this appeal.
   
5. On 16.12.92 the matter came on for hearing again before the Magistrate. Counsel for the Respondent advised that his concern at that hearing was to have the sentence (including the order for disqualification) suspended pursuant to Section 315 (1) of the Criminal Procedure Code pending the determination of the appeal. However he accepts the record which shows that, in the event, the hearing proceeded as an application for a partial disqualification only. The prosecutor had no objection and the Magistrate "varied the order for disqualification by allowing the Respondent to drive Group 2 vehicles at all times".
   
6. In view of this, the Respondent did not proceed with his appeal.
   
7. On 5.4.93 (after earlier obtaining an extension of time) the Director of Public Prosecutions filed this present Petition of Appeal in the Magistrates Court.
   

The appeal is against the varied sentence of the Magistrates on 16.12.92 imposing a partial disqualification. The ground in the Petition is that "The learned Magistrate erred in fact and law in varying the sentence once imposed when he had no such powers to do so".

Counsel for the Appellant submitted that once the Magistrate convicted and sentenced the Respondent on 11.11.92 he was functus officio and no longer had power or jurisdiction to further deal with the case and vary the sentence. Counsel for the Respondent accepted this. He quite properly referred me to the decision of Jesuratnam J. in DPP v Rajnal (Revision No.2 of 1993, 9th March 1993) holding, in very similar circumstances, that a Magistrate is functus officio after convicting and sentencing a defendant and has no power to allow a rehearing.

This principle is beyond any dispute whatsoever. The Magistrates Court is a court of summary jurisdiction and is not a court of record. A Magistrate is functus officio when he has discharged all his judicial functions in a case. A final adjudication brings an end to the case. In criminal proceedings he cannot re-open a case after the defendant has been convicted and sentenced. Any alteration to that sentence can only be done by an appellate court on appeal or review. (See, for example, S (an infant) v Recorder of Manchester and others 1971 A.C. 481 (HL); R v Campbell ex parte Hoy 1953 1 QB 585; R v Norfolk Justices, Ex parte DPP 1950 2 KB 558 and R v Manchester Justices, ex parte Lever 1937 2 KB 96).

Accordingly, in purporting to vary the sentence of disqualification on the 16 December 1992 the Magistrate in this case was acting without jurisdiction. That order has no effect and the order for disqualification imposed on the 11 November 1992 is the effective sentence.

Notwithstanding this determination, counsel for the Respondent submitted that the Court should exercise its powers under Section 319 or 325 of the Criminal Procedure Code and quash the order for disqualification.

Section 319 gives the Court, wide powers on the hearing of an appeal. These include reversing or varying the decision of the Magistrates Court, dismissing a meritorious appeal if it is considered that no substantial miscarriage of justice has actually occurred and quashing a sentence and substituting another that the Court thinks should have been passed. Section 325 gives the Court power to alter or reverse any order of the Magistrates Court that comes to its knowledge.

In considering the appropriate action to take in this case I am influenced by a number of factors, in particular:

(a) The Respondent has suffered the imposition of a substantial penalty for the offence of dangerous driving. Although the fine was moderate a suspended prison sentence has been described as "unprecedented".

(b) Such a sentence is a real penalty and not just a soft option for the offender. Throughout the period of suspension exemplary behaviour is required because conviction for a further offence will activate the prison sentence. It hangs over the offender as a constant reminder of the penalty for offending and has a salutary effect.

(c) Disqualification for the offence of dangerous driving is discretionary and in many cases none is imposed.

(d) Overtaking a stationary car at a pedestrian crossing and endangering pedestrians is serious but not in the grave category.

(e) The Respondent was a first offender and expressed remorse in Court.

(f) The sentence of disqualification was effective from the date it was imposed on 11 November 1992 until the further hearing on 16 December 1992.

(g) The police prosecutor had no objection to a partial disqualification which (if valid) was tantamount to a removal of the disqualification for this particular offender.

(h) As the partial disqualification was granted, the Respondent did not proceed with his appeal against sentence. That appeal may have had merit.

(i) There has been a delay of almost 21 months from the last hearing in the Magistrates Court until this appeal hearing. During this period the Respondent has accepted and met the terms of the sentence that the Magistrate purported to impose - including, in particular the suspended prison sentence.

(j) The Respondent advised the Court when he first appeared on 18 August 1994 that he was unaware of this present appeal until he was served with the notice of hearing the previous week.

Considering these very special circumstances, it would be inequitable for the Respondent to now be required to suffer the penalty of disqualification. He has been appropriately and sufficiently punished for his offending. Justice requires the disqualification part of the sentence to be quashed.

In view of this decision it is unnecessary for the Court to determine a further matter that was adverted to in the course of the hearing. That is whether the Magistrates Court has jurisdiction to impose a partial disqualification of the type imposed in this case. It may be that the only power given by Section 29 of the Traffic Act is to impose a total disqualification or a disqualification limited to the driving of the same class or description of vehicle in relation to which the offence was committed. If this is so, then the desirability of legislation to authorise the common practice of imposing partial disqualifications should be urgently considered by the appropriate authorities.

For the reasons given, I make the following orders on this appeal:

1. The order made in the Magistrates Court on 16th December 1992 has no effect and the order for disqualification made on the 11th November 1992 remains the effective sentence in that Court.
   
2. The order for disqualification imposed upon the Respondent by order of the Magistrates Court on 11th November 1992 is quashed.
   

JUSTICE D.B. PAIN

HAA0039D.93S