Sami v The State [1994] FJHC 131; Haa0017j.94s (29 September 1994)

IN THE HIGH COURT OF FIJI
(SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0017 OF 1994

BETWEEN:

RAVINESH SAMI
s/o Nand Sami
APPELLANT

AND:

STATE
RESPONDENT

Mr G.P. Lala & Mr. Savu for Appellant
Ms.L.Laveti for Respondent

JUDGMENT

The Appellant appeals against the Sentence of 4 months imprisonment imposed against him by the Magistrate Court on 28th April, 1993 upon the following grounds:

(1) That the sentence is manifestly harsh and excessive since the appellant is a first offender; and

(2) That the Learned Trial Magistrate took extraneous consideration in sentencing the Appellant.

Both grounds could be conveniently dealt with together.

On 26.10.92 P.W1, Special Constable Nikolau Seduadua was driving police vehicle GL.808 towards Navuso landing from Nausori, at 2 a.m., when a vehicle driven by the appellant from the opposite side collided with his vehicle near the Nausori Rubbish dump. The accident took place on the correct side of P.W1.

The Appellant pleaded not guilty to the charge of Dangerous Driving: contrary to Section 38 (1) of the Traffic Act, Cap. 176.

At the hearing on 28.4.93 the Prosecution called five witnesses to testify on its behalf while the Appellant gave evidence on oath by himself. At the end of the trial the presiding Magistrate found appellant guilty and convicted him as charged. He was sentenced to 4 months imprisonment and his Driving Licence was ordered to be endorsed.

Subsequent to the above order, Mr. S.P. Sharma appeared on behalf of Appellant before the Trial Magistrate and applied for bail pending appeal pursuant to Section 315 of the Criminal Procedure Code. After hearing Mr Sharma's application with no objection from the Prosecution, the Magistrate granted Appellant bail and ordered that Appeal be lodged within 14 days.

At the hearing of this appeal, Mr Savu for appellant argued that the sentence of 4 months imposed by the trial Magistrate against a first offender was far excessive and too harsh. If the previous unblemished record of the appellant was taken into account by the trial Magistrate then a suspended sentence would have been appropriate at the most, than an immediate custodial one. He urged the Court to set aside the prison sentence and impose an alternative sentence in the form of a fine.

For the Respondent, Miss Laveti argued that the Magistrate was correct in imposing a custodial sentence in all the circumstances of this case and the appeal should be dismissed.

The record of proceedings in the Court below does not show that the trial Magistrate had taken into account the fact that the Appellant was a first offender. The only relevant part of the record below is as follows:-

"Perhaps it is time that those who drive dangerously on the road, should be severely punished otherwise death tolls caused to innocent pedestrians shall be on the rise all the time."

While I share the concern of the trial Magistrate I believe his statement above is one of general effect and not specific or confined to the Appellant's case.

In my view the fact that Appellant is a first offender ought to have been a very persuasive mitigating factor in his favour. In most cases prison sentence is the last resort. Courts should endeavour to explore and exhaust all available alternative sentences before it imposes a custodial sentence, more so, in the case of a first offender.

In the "Principles of Sentencing" Second Edition by D.A Thomas at page 46, the learned author has this to say on "Mitigation".

"The final step in the process of calculating the length of a tariff sentence is to make allowance for mitigation, reducing the sentence from the level indicated by the facts of the offence by an amount appropriate to reflect such mitigating factors as may be present. Mitigating factors exist in great variety, but some are more common and more effective than others. They include such matters as the youth and previous character of the offender--------." (my underlining).

In my view the sentence of 4 months imprisonment is on the high side, in view of the previous good record of the appellant. Having regard to the facts and circumstances surrounding this case, I believe that a fine in addition to the endorsement of appellant's Driving Licence which was ordered by the Court below would take into account the previous good record of the Appellant and will also act as a deterrence to him.

I therefore set a side the sentence of 4 months imprisonment imposed by the Court below and in substitution therefor I impose a fine of $100 in default 4 months imprisonment and confirm the order of Endorsement of Appellant's Driving Licence ordered by the Court below.
To this extent the Appellant's appeal succeeds.

S W Kepa
JUDGE

29th September, 1994

HAA0017J.94S