Land Transport Authority v Neneboto [2002] FJHC 184; HAA0087J.2002S (22 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 87 OF 2002

Between:

LAND TRANSPORT AUTHORITY
Appellant

And:

ISIMELI NENEBOTO
Respondent

Hearing: 15th November 2002
Judgment: 22nd November 2002

Counsel: Ms A. Neelta for Land Transport Authority
Mr E. Veretawatini for Respondent

JUDGMENT

The Appellant, the Land Transport Authority, appeals against an absolute discharge ordered by the Nausori Magistrate’s Court on 15th August 2002 in respect of the following offence:

Statement of Offence

FAILURE TO WEAR SEAT BELT: Contrary to Regulations 27(1) and 87 of Land Transport (Traffic) Regulations 2000.

Particulars of Offence

ISIMELI NENEBOTO on 8th day of May, 2002 at Nausori in the Central Division drove a Goods Vehicle Registration No. DR001 on Kings Road, Davuilevu, and failed to wear the seat belt provided in the vehicle.

The grounds of appeal are:

1. That the sentence meted out to the respondent is manifestly wrong in principle;
   
2. That the learned magistrate erred in law by not following the sentence guideline stipulated in the Land Transport (Fees and Penalties) Regulations 2000 in particular to section 3(1) of the prescribed penalties and fixed penalties;
   

100. That the section 3(1) does not give powers to the magistrate to use their discretion to discharge the respondent after pleading guilty and admitting the facts outlined by the prosecution.
     

The Respondent was issued with a Traffic Infringement Notice on the 8th of May 2002. He did not plead guilty in writing, and the matter was called in court on 17th July 2002. On that day, counsel for the Respondent said that the Respondent was not guilty. On the 15th of August 2002, the Respondent pleaded guilty. The prosecution said that the facts were as “in TIN.” Counsel said the facts were agreed to. There were no previous conviction. In mitigation, counsel said that the Respondent was a 49 year old lecturer at Nadave and on the day of the offence, had been suffering from a running stomach. He asked for an absolute discharge. The prosecution obviously disputed this, saying that the Respondent, when stopped by the Land Transport Officers, did not explain his problem to them. The Respondent said that he did, but that the officers ignored him. The Magistrate then gave the Respondent an absolute discharge.

The grounds of appeal

The first ground of appeal is that the sentence was manifestly wrong in principle. Section 44(1) of the Penal Code provides as follows:

“(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.”

Regulation 27(1) of the Land Transport (Traffic) Regulations 2000 provides as follows:

(1) A person who is 8 years or over seated in a motor vehicle that is in motion must -

1. wear the seat belt provided; and
   
2. the seat belt must be properly adjusted and securely fastened.”
   

Regulation 27(3) provides for exemptions from the duty to wear seat belts on the ground of unfitness or disability, but only when the Authority has issued a certificate certifying that Regulation 27(1) (a) and (b) do not apply to a person.

Regulation 87 of the Regulations provides that:

“A person who commits an offence under these Regulations is liable on conviction to the penalties prescribed for that offence in Schedule 2 to the Land Transport (Fee and Penalties) Regulations 2000.”

Regulation 3 of the Regulations reads:

“(1) A penalty prescribed in column 4 and column 5 of schedule 2 is the fixed penalty payable on the issue of a Traffic Infringement Notice in respect of an offence against the section of the Act or Regulations respectively prescribed in column 3 of schedule 2.

(2) The penalty prescribed in columns 6 and 7 of schedule 2 is the maximum penalty for an offence against the Regulation respectively prescribed in column 3.

(3) Where the prescribed penalty is shown $........./......... months or similar in column 7 of schedule 2, the court may impose a fine up to the maximum period shown or both such fine and such imprisonment.”

In respect of Regulation 27(1), the fixed penalty is $80 with 2 demerit points, and the maximum penalty is $500 fine and/or 3 months imprisonment and a demerit point of 3.

Counsel for the Authority concedes that the court has a discretion, but submitted that this discretion ranged from the fixed penalty of $80.00, to the maximum penalty of $500.00. She argued that the sentence was one “fixed by law” and that therefore the Magistrate had no discretion to order an absolute discharge.

Counsel for the Respondent submitted that the Respondent should never have been charged at all under Regulation 27(1) because the Regulation relevant to drivers, is Regulation 27(5). If this latter submission is correct, one wonders why the Respondent pleaded guilty in the Magistrate’s Court. However, while Regulation 27(5) does deal with the duty of drivers to ensure that all persons in his/her vehicle are wearing seatbelts, Regulation 27(1) deals with all persons seated in a motor vehicle in motion, including the driver. Regulation 27(5) refers to the special duty of the driver to ensure that all passengers are wearing seat belts. The charge under Regulation 27(1) was therefore quite proper.

I turn to sentence. In LTA -v- Eroni Volavola Crim. App. HAA066 of 2002S, I made an obiter remark that a penalty under Regulation 51 of the Land Transport (Traffic) Regulations was one fixed by law. However, that remark was obiter and the point was not fully argued in that case.

The reference to fixed penalty in Regulation 3 of the Land Transport (Fees and Penalties) Regulations 2000, is not a reference to a judicial penalty. It is a penalty payable on the issue of the Traffic Infringement Notice by Land Transport Officers, at the scene of the alleged offence. In State -v- Usman Ali Criminal Appeal No. 12 of 2001, Fatiaki J said in an appeal on the question of whether Traffic Infringement Notices could be used for offences for which there was no fixed penalty:

“Returning then to the difference between a “fixed penalty” and a “prescribed penalty” the expression used in the enumerated offence sections under the LTA Act is ‘.......... liable on conviction to the prescribed penalty’ which is the maximum penalty for the offence within which the trial court retains a sentencing discretion quite unlike a ‘fixed penalty’ which upon payment is ‘deemed a conviction’ unless the offence for which it was issued does not attract any demerit points in which latter case it is ‘deemed not a conviction’.”

Fatiaki J was clearly of the view that the court retained a sentencing discretion for prescribed penalty offences. In Fisheries Inspector -v- Turner (1978) 2 NZLR, the New Zealand Court of Appeal considered whether a statutory provision for forfeiture of a fishing vessel on conviction under the Fisheries (Geneva) Regulations 1950, prevented the Magistrate from ordering an absolute discharge. Section 42(1) of the Criminal Justice Act is comparable to section 44 of the Fiji Penal Code, except that the New Zealand statute uses the words “unless by any enactment applicable to the offence a minimum penalty is expressly provided for.” It was held that the forfeiture provisions under the Fisheries Act 1908, did not create a minimum penalty because the provisions operated independently of the conviction and of the court, and because the provisions related to the property and not to the offender. It was held that the Magistrate did have the power to discharge absolutely.

In State -v- Alifereti Nakautoga Crim. App. No. HAA 130 of 1997, Pain J found that a section 44 discharge was not available under the Dangerous Drugs Act because that Act provided for minimum mandatory terms of imprisonment. A sentence “fixed by law” is therefore synonymous with a sentence of a minimum mandatory term.

In this case the fixed penalty provisions under the Land Transport Act and Regulations, are enforced not by the Magistrate, but by Land Transport Officers, on issuing a Traffic Infringement Notice. The provisions were evidently intended to provide a quick efficient way of dealing with offenders who admitted guilt and wished to pay an “on the spot” fine instead of appearing in court with the attendant expense and publicity. The fixed penalty is therefore not a minimum sentence. Those offences which have minimum mandatory sentences, are specified in the Schedule to the Act itself. One such example is the offence of “Dangerous Driving Occasioning Death” which carries a minimum sentence of $1000 fine and disqualification for 6 months.

For these reasons, I find that it was open in law, for the learned Magistrate to order an absolute discharge for an offence under Regulation 27(1). Grounds (b) and (c) are therefore unsuccessful.

The next question is whether on the facts of this case, he erred in so exercising his discretion. At the hearing of the appeal I requested assistance from counsel as to the connection between a running stomach, and the failure to wear seat belts. Neither counsel was able to assist. I see no connection. If the Respondent was suffering from such a chronic stomach condition that he had to repeatedly, and without warning, stop the car, then he should not have been driving at all. It is not surprising that (if the Respondent did inform the LTA Officers of his condition) they ignored him. A running stomach is not a mitigating factor in respect of an offence of failing to wear seat belts in a moving car.

The absolute discharge must be sparingly used. In State -v- Nand Kumar Crim. App. No. HAA014/00L, Gates J said:

“Absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches (R -v- O’Toole (1971) 55 Cr. App. R. 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R -v- Kavanagh (unreported) May 16th 1972CA).”

In Tipple -v- Police (1994) 2 NZLR 362, a licensed arms dealer had been told by the police that they were not concerned with the sales of firearms, as long as they were for export. The dealer was charged with supplying firearms to Russian seamen. It was held that because the dealer committed the crime, believing it to be lawful, it was in the public interest that his company should not be punished for acts specifically approved by the police. The court ordered an absolute discharge.

The absolute discharge is therefore for the morally blameless offender, or for the offender who has committed only a technical breach of the law. Such cases are rare, because in most such cases a decision would have been made not to prosecute. It should be rare that, having used court and prosecution resources, in the investigation, prosecution and trial of offences, a Magistrate would consider it just to order an absolute discharge.

This is not one of those rare cases. Further, in deciding on an appropriate case, the fixed penalty under the Regulation should be considered. An offender who has decided to use the court resources to plead guilty, instead of the fixed penalty procedure, would normally expect at the least, a fine above the fixed penalty amount.

In this case the learned Magistrate erred in ordering an absolute discharge. It is quashed and substituted with a conviction.

I refer the matter back to the learned Magistrate for examination of means and sentence.

Nazhat Shameem
JUDGE

At Suva
22nd November 2002