Kumar v The State [1997] FJHC 253; Haa0080.1997s (21 November 1997)

IN THE HIGH COURT OF FIJI
(At Suva)
APPELLATE JURISDICTION

Criminal Appeal No: HAA 080 of 1997

Between:

JAGDISH KUMAR
(S/O Ganesh)
Appellant

and

STATE
Respondent

Coram: Mr Justice Surman
21 November 1997

Mr T Karunairatnam for the Appellant
Mr Peter Petaia for the Respondent

JUDGMENT

Background.

This Matter concerns an Appeal by Mr Jagdish Kumar against the Sentence imposed by the Magistrate sitting at Suva on 13 June 1997. The Proceedings before the Magistrate actually started on 13 October 1995 and the hearing of the Witnesses got underway on 4 April 1996, but did not finish until over a year later. I am not able to understand from the Papers why this should be. In fairness to the Parties once a Case has started it should be proceed as expeditiously as possible. Reasons for excessive delays should be noted on the Papers. 14 months for a Hearing of this type is far too long.

This Case started out as a contested Matter. However at the conclusion of the Prosecution Case, and when the Magistrate had rightly found that there was a Case to Answer, the Appellant changed his Plea to one of Guilty. The Application to change plea was agreed. The Magistrate's Record clearly shows that the Charge was stated to the Appellant again and the facts (as given by the Prosecution Witnesses) were read over to him and agreed.

On this basis there can be no further change of Plea. The Charge is not a difficult one to understand, nor are the facts. Sub Paragraphs 1, 2, 3, 4, 6, 7, and 8 of the Appeal grounds have therefore no merit. Sub paragraph 5 is therefore the only one remaining Ground of Appeal: and that concerns Sentence.

Ground of Appeal.

The sole Ground is that in all the circumstances the Sentence imposed by the Magistrate is manifestly harsh and excessive and wrong in principle.

Review of the Evidence & the Magistrate's Order.

I have carefully reviewed the Magistrate's Notes and have heard the submissions of Counsel for both the Appellant and the State.

Decision.

Causing Death by Dangerous Driving is a serious offence and attracts a maximum sentence of 5 years imprisonment. In sentencing the Appellant the Magistrate appears to have used 5 years as a 'Starting Point' and then reduced it to 18 months for the guilty plea and mitigating circumstances. With respect, that is the wrong approach. The 5 years is a maximum above which the Magistrate has no jurisdiction to go. He has of course a complete discretion to impose any sentence below that maximum. If the Magistrate thinks that a prison sentence is appropriate he should select a 'Starting Point' (I suggest here lower than the 5 year maximum) and reduce it from there for the plea guilty, the effectively clean record, and the other mitigating circumstances.

There is considerable mitigation in this Case; the most important being the guilty plea, the clear record, the remorse shown, his driving occupation now compromised, and the long length of time that this Offence has been over his head (since 1989). In this Matter there has been no evidence of alcohol, road racing, jumping lights, or crossing to the wrong side of the road. The Appellant was plainly driving too fast where children were gathered and that was both dangerous and foolish. But the important mitigating factors I have mentioned prompt me to query whether an immediate custodial sentence should be imposed.

In my judgement the nature of the Case certainly merited a custodial sentence, but a lesser term than the Magistrate decided. For the mitigation I have already set out I propose that that prison sentence should be suspended.

I will therefore allow the Appeal in part and substitute the following Orders:

9 Months Imprisonment suspended for 2 years;

300$ Fine (to be paid on or before 31 January 1998);

Disqualification from driving any Vehicle for 12 Months from to-day;

Driving Licence to be endorsed.

(The meaning of the Suspended Sentence has been explained to the Appellant in ordinary language and he indicated he understood).

(Peter Surman)
Judge of the High Court.

21 November 1997.

HAA0080.97S