State v Vanua [2000] FJHC 191; Criminal Appeal 41.2000 (15 September 2000)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 41 OF 2000
(Navua Mag. Ct. Traffic Case No. 2580/99)

Between:

THE STATE
Appellant

And

TOMASI VANUA
Respondent

Ms. Resina Senikuriciri for the Appellant
Respondent in person

JUDGMENT

On 2 February 2000 the Respondent was on his own plea convicted by the Navua Magistrate’s Court on two counts, namely, first count of dangerous driving contrary to section 38(1) of the Traffic Act Cap. 176 and second count of driving a motor vehicle without a valid driving licence contrary to section 23(i) and s85 of the Traffic Act, Cap. 176.

The facts are that on 13 September 1999 at Navua in the Central Division the respondent drove a Government motor vehicle Reg. No. GM 388 towards Lautoka on the Queen’s Road in a manner which was dangerous to the public having regard to all the circumstances of the case. At a sharp bend he lost control of the vehicle when he failed to negotiate the bend. The vehicle veered off the road. The accused drove without being the holder of a valid driving licence in respect of the said motor vehicle.

Sentence and sentencing remarks

Before passing sentence the Magistrate made the following remarks:

I have considered the plea of guilty and mitigation and that this accused is a first offender. This accused had alleged that it was the work pressure that had caused the accident. At that time, he was Aide Camp for the President who was sick and was admitted to the hospital that day. Most of the Government House staff were occupied in the hospital. He (accused) was to check the President’s properties here and on that day at Navutulevu. He had been working long hours seven days a week trying to get everything in order as required by the President. He, the accused was doing his work in his official capacity as the Aide Camp and traditionally as the President is his high chief.

In view of the sacrifice he had done, I am prepared to use the Court’s discretion under Section 44 of the Penal Code, and I order on both Counts that he be given absolute discharge without conviction but he has to pay $50.00 in default of 50 days as Court costs.

28 days to appeal.

Grounds of Appeal

The Grounds of Appeal are as follow:-

1. That the Learned Magistrate had erred in law when discharging under section 44 of the Penal Code, Cap.17
   
2. That the Learned Magistrate failed to direct himself to the law governing the said offences and the sentencing regime.
   

100. That the sentence was wrong in principle and in law on both the counts.
     

4. That the sentence was manifestly lenient having regard to all the circumstances of the case.
   

Appellant’s submission

It is the appellant’s argument that the learned Magistrate should not have used s44 when under s38 (1) of the Traffic Act a specific penalty is prescribed namely 2 years’ imprisonment or fine or both. Hence, the learned State Counsel says that the discretionary power of the Magistrate is limited or restricted under the said section. Therefore, she says, that the Magistrate erred in law in exercising his discretion by applying s44 to this case in the manner he did. Similar argument was advanced in respect of Count 2.

Respondent’s submission

The Respondent had nothing to say.

Consideration of the appeal

I shall deal with all the grounds together.

The issue for Court’s determination is whether the learned Magistrate was right in applying s44 of the Penal Code to the facts and circumstances of this case.

The learned Counsel for the appellant has argued that because a specific provision as to penalty is set out in s38 (1), the provisions of s44 do not apply. The words on which counsel relies are "not being an offence for which a fixed sentence is prescribed by law ..." The said section 44 (in so far as it is relevant) provides:

44. - (1) Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the payment of costs or compensation, or the restitution of goods or the payment of money in lieu of goods, as may be specified in such order.

There is nothing to prevent a Magistrate applying s44 in an appropriate case in the exercise of his discretion. As Fatiaki J has said in The State v Kishore Kumar s/o Gideon (Revision No. 5 of 1993 - in the matter of Suva Traffic Case No. 1031/93) after referring to sections 206(2) and 215 of Criminal Procedure Code that:

"the law provides various alternative courses which a Magistrate Court may adopt on a plea of ‘guilty’ or after trial, including the making of an order under Section 44 of the Penal Code and very clear words are required in order to limit the choice of alternatives otherwise available to a Magistrate Court dealing with a guilty plea or faced with making a decision after trial."

His Lordship goes on to say and this is apt:

Needless to say I cannot support the proposition that the general statutory discretion given to a Magistrates Court whether to convict, discharge or acquit a person and in sentencing a person who has been found guilty can be impliedly limited or excluded not by an express "ouster clause", but by reference to the penalty provided by the legislature for a particular offence albeit in a later enactment.

In short, both the provisions as to penalty in s38(1) and s44 dealing with the exercise of discretion can without doubt co-exist.

Therefore, as stated in s44, where a court thinks that it is inexpedient to inflict punishment and a probation order is inappropriate, the offender may be given an absolute discharge or a conditional discharge with a certain condition (vide Wilkinson’s Road Traffic Offences Vol I 16th Ed. 18.53).

Therefore this ground of complaint has no merit.

The question for me to consider in this appeal is not only whether the learned Magistrate exercised his discretion properly but whether he was right.

As I see it the only reason in short why s44 was applied was, because of "the sacrifice he had done" (to use the Magistrate’s words) for the President. In the process of what the respondent said he did, he broke the law.

In all the circumstances of this case there was no justification whatsoever to apply s44. The respondent should not have been allowed to escape punishment for the reasons advanced by him as to his personal circumstances which resulted in the accident. The order was unlawful and it was also a wrongful exercise of discretion on the part of the Magistrate much as an appellate Court is slow to interfere with the exercise of a discretion. The exercise of a discretion on the wrong principle is appealable. This amounts to a point of law and therefore this Court has jurisdiction to deal with the matter. (Lord Parker C.J. in Priddle v Fisher & Sons 1968 3 All E.R. 506 at 508).

Here the accident happened because of "work pressure" as stated by Magistrate. This is no reason to be let off. The Respondent was on his own plea properly convicted on both the counts but was wrongly given an absolute discharge without conviction.

It has been held that a driver who allows himself to be overcome by sleep, so that he can mount the pavement or goes to the wrong side, is guilty of careless driving, for he should have stopped when he felt sleep overtaking him (Kay v Butterworth (1946) 110 JP 75; Henderson v Jones (1955) 119 JP 305, Wilkinson supra at 5.86). Even in cases where ‘special reasons’ are required to be established before disqualifying a driver the fact that the driver suffered from fatigue and lack of food it was held that that was quite incapable of being a special reason.

As stated in Cross in the English Sentencing System (1971) at p.11 "absolute discharges are granted relatively rarely". The author goes on to say at p.11:

"Two typical situations in which absolute discharges are granted are first those in which the law has confessedly failed because the accused is morally blameless and no deterrent purpose would be served by his punishment, and secondly cases in which the Court considers that the accused’s conduct was an isolated instance and that no further pressures are needed to keep him up to scratch."

Later the author says:

"Akin to the first type of case in which absolute discharges are employed is that in which the Court takes the view that the defendant ought never to have been prosecuted."

and again:

"Absolute discharges are intended for cases in which the judge has few, if any, misgivings about a repetition of the offences, and wishes to do all he can to reduce the stigma attaching to the conviction."

I do not find that any of these considerations apply to this case.

On the facts, this was a case more of careless driving than dangerous driving as charged. There was clear carelessness on the part of the respondent and therefore the Magistrate was wrong in exercising his power under s44. Nor do I find anything regarding the respondent in regard to what he said to justify the exercise of the power. The Magistrate for some reason was completely silent on second count and gave no reason for the application of s.44 on that count.

I therefore set aside the order of the learned Magistrate discharging the respondent and enter a conviction and impose a fine on each of the two counts in the sum of $40.00 and $25.00 respectively. The order made by the learned magistrate as to payment of costs will stand.

D. Pathik
Judge

At Suva
15 September 2000