State v Kumar [2002] FJHC 117; HAA0025J.2002S (22 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0025 OF 2002
(Suva MC Criminal Case No. 753 of 2002)

Between:

STATE
Appellant

And:

SATISH KUMAR
s/o Nagin Dass
Respondent

Hearing: 17^th May 2002

Judgment: 22^nd May 2002

Counsel: Mr B. Solanki for Appellant
Respondent in Person

JUDGMENT

This is an appeal by the Director of Public Prosecutions against the sentence imposed on the Respondent by the Suva Magistrates= Court on the 13^th of January 2002 for the following offence:

Statement of Offence

DRIVING A MOTOR VEHICLE WHILST THERE IS PRESENT IN THE BREATH A CONCENTRATION OF ALCOHOL IN EXCESS OF THE PRESCRIBED LIMIT: Contrary to Section 103(1)(a) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

SATISH KUMAR s/o NAGIN DASS on the 13^th day of January, 2002 at Suva in the Central Division drove a motor vehicle registration number CI 376 on Victoria Parade, whilst there was present in 100 millilitres of his breath, concentration of 40 microgrammes of alcohol which was in excess of the prescribed limit.

He pleaded guilty and was fined $500.00 in default 6 months imprisonment. The State appeals against the sentence on the following grounds:

(a) That the learned magistrate erred in law when she failed to invoke section 114 of the Land Transport Act which directs that mandatory disqualification from driving be imposed as a penalty for this offence;

(b) That the sentence imposed by the learned magistrate was lenient in all the circumstances.

At the hearing of the this appeal, State Counsel only pursued ground (a), that is that the learned Magistrate erred in failing to impose a term of disqualification from driving. He submitted that section 114 of the Land Transport Act provides for mandatory disqualification for offences under section 103(1)(a) of the Act, for a period between three months and two years.

Section 103(1)(a) of the Land Transport Act provides as follows:

AA person who -

(c) drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his blood;

commits an offence.@

Section 114 of the Act provides as follows:

A(1) The penalties prescribed in the third column of the Schedule are prescribed as the maximum penalties for offences against the sections of the Act respectively mentioned.

(2) Where the prescribed penalty is shown by A$.../... months@ or similar, the court may impose a fine up to the maximum amount shown or a term of imprisonment up to the maximum period shown or both such fine and such imprisonment.

(3) Where the prescribed penalty includes disqualification, subsections (2) and (3) of section 59 apply.

(4) Where the prescribed penalty includes demerit points, subsections (2) and (3) of section 88 apply.@

The relevant schedule to the Act, at page 393, provides, in respect of offences under section 103(1)(a) of the Act:

SCHEDULE

Section	Offence	Prescribed penalty
103(1)(a)	Driving or attempting to drive with excess alcohol in the blood.	(a) First offence - $2,000/2 years and mandatory disqualification for from 3 months to 2 years. (b) Second offence - $5,000/5 years and mandatory disqualification for from 6 months to 4 years. (c) Offence if 2 or more convictions for similar offence within the 5 years preceding the offence is $10,000/10 years and mandatory disqualification for from 12 months to 5 years.

The legislature has seen fit to provide for mandatory disqualification between three months and two years, for offences of driving whilst there is present in the breath a concentration of alcohol in excess of the prescribed limit. Unlike the offence of Driving whilst drunk under the Traffic Act, there is no provision for the magistrate to hear on oath evidence from the accused showing special reasons justifying non-imposition of mandatory disqualification. Section 59(2) of the Act, which provides for imposing shorter terms of disqualification, or not imposing disqualification at all, does not apply to Amandatory@ disqualification. There is therefore, under the Schedule of the Land Transport Act no discretion not to disqualify in respect of a section 103(1)(a) offence. The only discretion is at to the length of disqualification. The learned Magistrate therefore erred in law in failing to impose a period of disqualification.

In the circumstances of this case, and taking into account his submissions at the hearing of this appeal, I consider a term of disqualification of six months to be appropriate. I vary his sentence to that extent. This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
22^nd May 2002