Nisha v State [2000] FJHC 157; HAT18.2000 (15 May 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

TRAFFIC APPEAL NO. 18 OF 2000
(Nausori Traffic Case No. 3325 of 1999)

Between:

ROZUN NISHA
f/n Mohammed Hanif
Appellant

And

STATE
Respondent

Appellant in Person
Ms. R. Senikuraciri for State

JUDGMENT

The appellant was on 25 May and 24 August 1999 fined $100 and disqualified for 6 months from driving respectively by the Magistrate’s Court at Nausori for the offence of exceeding speed limit contrary to Para 7 of Nausori Traffic Order and Section (3) of the Traffic Act, Cap. 176. Before disqualifying, Summons to Show Cause why she should not be disqualified was served on her but she did not appear.

The appellant now appeals against fine and disqualification as being harsh and excessive.

The facts are that the appellant on 29 March 1999 at Nausori drove a motor vehicle on King’s Road, Koronivia at a speed of 87 Kmph such speed being excessive as the maximum speed permitted in the said area is 60 Kmph.

She pleaded guilty in writing.

When fining the learned Magistrate did not say why she is being fined the maximum permitted by law. The prosecution concedes that on the facts of this case the fine is excessive. I agree and it should be realized that the maximum sentence is reserved for the worst type of offence. If it was intended to impose the maximum fine then the learned Magistrate should have given reason for doing so.

In the absence of full facts surrounding the commission of the offence the Court cannot allow the sentence of fine to stand without reducing it.

The appellant has been driving for 10 years and has no previous convictions.

Again when disqualifying the learned Magistrate did not give any reason for doing so. I would say that disqualification is dependent on the seriousness of the offence. Disqualification is not warranted for merely exceeding the speed limit by 27 Kmph. There is nothing to indicate that this was a serious offence or one which was at the top of the range requiring disqualification. As Pain J said in Shyam Vedh v The State Crim. App. 102/97 "in this case the Appellant was served with a notice to attend the Magistrate’s court which is usually reserved for less serious cases. It was served on the same day as the offence was committed. For a serious driving breach, a summons would be expected after a full police investigation".

The facts as outlined to Court was very much inadequate to indicate the degree of seriousness of the offence.

The Prosecution and Magistrates ought to bear in mind when dealing with offences of this nature the following words of Pain J in Vedh (supra):

‘It is worth stating again that for the purposes of sentencing it beholds prosecutors to present and magistrates to obtain proper facts. A proper sentence is one that is appropriate for the fact of the case. Such a sentence cannot be imposed unless full facts are given’.

For these reasons, in all the circumstances of this case, the disqualification will be quashed.

Accordingly, the appeal is allowed to the extent that the sentence of fine is reduced to $50.00 and disqualification for 6 months imposed in the Magistrate’s Court is quashed. The excess fine if paid is ordered to be refunded to the appellant.

D. Pathik
Judge

At Suva
15 May 2000