Kumar v The State [1996] FJHC 19; Haa0016j.96s (22 May 1996)

Fiji Islands - Jiten Kumar v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0016 OF 1996

Between:

JITEN KUMAR
s/o Arendra Nath
Appellant

AND:

THE STATE
Res> Respondent

Mr. A. Kohli for Appellant
Ms. L. Laveti for Respondent

On the 4th of April 1996 the appellant's appeal against senteas allowed in an interim juim judgment delivered orally by the Court. I now provide written reasons for allowing the appeal.

On the the appellant was convicted in the Savusavu Magistrate Court after he pleaded guilty to an offence of Driving Whilst Under the Influence of Drinks and a second count of Careless Driving.

Upon his conviction trial magistrate sentenced the appellant to 12 months imprisonment on Count 1 and fined him $20.00 on Count 2.

The brief facts of the case are that the appellant who is a taxi-driver from Seaqaqa, had gone with some friends to spend a night in Savusavu on what might be considered a private jaunt. That night whilst driving in Savusavu Town after having had some drinks he missed his motel turn-off and on executing a 'U' turn in the road the appellant's taxi was struck from behind by a passing vehicle. The appellant was later examined by a hospital doctor and certified incapable of driving.

The trial magistrate in sentencing the appellant said:

"The accused is a taxi driver. A taiver driving while drunk isnk is a serious thing. The accused is a first offender. But drunken driving has to be dealt with deterrent punishment."

The appellant appealed against the severity of the sentence of imprisonment imposed, on the ground firstly, that it was wholly disproportionate to the gravity of the offence having regard to all the circumstances, and secondly, was wrong in principle in so far as it was inconsistent with sentences for similar offences imposed by the same Court during the same period.

As to the former ground, learned counsel for the appellant submitted thattrial magistrate had misconisconstrued the circumstances of the offence, and been unduly influenced by the fact that the appellant was a taxi-driver by occupation.

With that submission I entirely agree. There is not the slightest suggestion that the appellant wathe material time performinorming his professional duty as a taxi-driver carrying paying passengers. Nor is it suggested that anyone was hurt in the accident that occurred. What's more the alcohol content of the appellant's blood and urine was not disclosed to the trial magistrate although samples were apparently taken at the time.

Needless to say any sentence imposed upon an offender muar some relationship to the facts of the case and not be oube out of proportion to the gravity of the offence.

As for the second grounappeal, counsel referred to sentences passed by the Labasa Magistrate Court in 4 sim4 similar cases over the preceding 12 months, for offences of Driving Under the Influence of Drinks and in which, in each instance, a suspended sentence of imprisonment was imposed together with a fine and a short period of disqualification.

Counsel also drew the Court'sntion to the judgment in Michael Parma Nand v. R. 12 F.L.R. 45 where Knox-Mawer P.J. in reducing the sentence imposed in that case said at p.46:

"It is desirable that the Supreme Court, throts appellate jurisdiction, ion, should, whenever feasible, ensure that there is some measure of uniformity in the sentences imposed in the Court below."

State Counsel for her part conceded that an immediate custodial sentence was not warranted for at offender with an unblemislemished driving record and having regard to the circumstances of the offence.

Accordingly the appeal was ad, the sentence of 1 year's imprisonment was quashed and in substitution therefor a or a sentence of 9 months imprisonment suspended for 2 years was imposed. The fine and disqualification not being challenged were ordered to remain unchanged.

D.V. Fatiaki
JUDGE

/p>

At Labasa,
22nd May, 1996. Haa0016j.96s