Land Transport Authority v Lochan [2002] FJHC 185; HAA0088J.2002S (22 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 88 OF 2002S

Between:

LAND TRANSPORT AUTHORITY
Appellant

And:

SASHI M. LOCHAN
Respondent

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

Counsel: Ms A. Neelta for Land Transport Authority
No appearance for Respondent

JUDGMENT

The Respondent on the 15th day of August 2001 was charged with the following offence:

Statement of Offence

DRIVING UNREGISTERED MOTOR VEHICLE: Contrary to sections 49(3) and 87 of the Land Transport Act 1998.

Particulars of Offence

SASHI MAHENDRA LOCHAN on the 15th day of August, 2001 at Nausori in the Central Division, drove a Private Motor Vehicle Registration No. CR364 on Kings Road, Wainibuku when the said Motor Vehicle was not duly registered.

The case was called on the 21st of November 2001. The Respondent pleaded not guilty. The case was called again on 29th January 2002 but counsel was unavailable. It was called again on the 8th April 2002, 14th May 2002, 10th June 2002 and 12th August 2002. It finally proceeded on 15th August 2002 when the Respondent pleaded guilty. The facts were that on 13th August 2001, at 6.30pm, Land Transport Officers stopped the Respondent’s car along the Wainibuku Road. They found that his wheel tax had expired on 5th April 2001. The Respondent admitted these facts. However in mitigation, counsel for the Respondent said:

“We pleaded guilty. The defendant is charged under s.49(3). The vehicle was registered. The definition of register. 44 years. Civil Servant.”

The prosecutor said he would consult the drafters of the Act. The court then said, “Defendant should be charged under s.53(1)(5) of LTA. Defendant is given an absolute discharge.”

The Appellant appeals against this order. 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 to the charge and admitting the outlined facts.”
     

The grounds of appeal

It is firstly not clear what the nature of the discharge was. Was it a “sentence” discharge under section 44 of the Penal Code, or was it a discharge under section 201(1) of the Criminal Procedure Code? If it was a section 44 discharge, it was arguably a nullity because the Magistrate found that the offence was not shown by the facts. If it was a section 201 discharge, it was in any event a nullity because the prosecution did not withdraw the charge. If the Magistrate thought that the facts did not disclose the offence, the proper course of action would have been to set aside the guilty plea, enter a not guilty plea and proceed to trial to allow the prosecution to call evidence and/or make an application to amend the charge. Either type of discharge was wrong in law in these circumstances. However, for the reasons I now give, there was no basis in law or fact, for finding that the facts did not disclose the offence.

The Respondent was charged under section 49(3) of the Land Transport Act. Section 49 reads as follows:

“(1) A person who owns a motor vehicle or trailer shall register the motor vehicle or trailer with the Authority irrespective of whether the motor vehicle or trailer is to be used exclusively on private property.

(2) A person who has registered a motor vehicle or trailer may apply to the Authority for the motor vehicle or trailer to be exempted from the requirements of this Part.

(3) A person who drives or uses or permits to be driven or used upon a public street any motor vehicle or trailer which is not registered under subsection (1) commits an offence and is liable on conviction to the prescribed penalty.”

Regulation 53 provides:

“(1) The Authority may register motor vehicles under the provisions of this Act to operate under the following classes of motor vehicle licence -

1. a private licence which -
   

(i) authorises the use of the motor vehicle subject to this Act and the conditions of the licence; and

(ii) does not authorise the use of the motor vehicle for commercial purposes, or as a public service vehicle;

2. a commercial licence which -
   

(i) authorises the use of the motor vehicle for the carriage of goods in relation to the business of the owner, subject to this Act and the conditions of the licence; and

(ii) limits the carriage of passengers to bona-fide employees and other persons directly involved in the carrying on of the business of the owner;

100. a government licence which authorises the use of the motor vehicle for purposes related to the functions of government, subject to this Act and the conditions of the licence;
     

4. a diplomatic licence which authorises the use of the vehicle consistent with the provisions of this Act and the Diplomatic Privileges and Immunities Act and the conditions of the licence;
   
5. a public service vehicle licence as provided for in Part VI.
   

(2) A licence issued pursuant to this Part may include conditions, as the Authority may determine, relating to the use of the motor vehicle for private purposes.

(3) The Authority may cancel or suspend a licence issued under this Part.

(4) The conditions under which a vehicle is licensed to operate shall, unless the licence otherwise expires, or is cancelled or suspended under the provisions of this Act, only be in effect for the period of the registration of the vehicle and shall lapse with the expiry, cancellation or suspension of the registration pursuant to this Act.

(5) A person who uses a motor vehicle contrary to the condition of the class of licence issued under subsection (1) commits an offence and is liable upon conviction to the prescribed penalty.”

Section 49 therefore creates an offence of driving a vehicle which is not registered at all. Section 53 creates an offence of driving a vehicle contrary to the condition of the class of licence issued. For instance a person commits an offence under section 53(5) if he/she drives a private vehicle for commercial purposes. The Respondent was charged with the offence of driving a vehicle which was not registered at all. As such section 49 was the correct section.

There was therefore no reason to doubt the facts, nor any ground to set aside the plea of guilty. The learned Magistrate should have proceeded to sentence.

For the reasons I have given today in LTA -v- Isimeli Neneboto Crim. App. No. HAA 87 of 2002 an absolute discharge is only appropriate in those cases where no moral blame attaches to the defendant, or where he/she was guilty of only a technical breach of the law (State -v- Nand Kumar Crim. App. HAA014/00L, Tipple -v- Police (1994) 2 NZLR 362).

Richardson J in Fisheries Inspector -v- Turner (1978) 2 NZLR 233, 241, said of the absolute discharge, and the duty of the court in considering one:

“It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction, and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s.42.”

In this case nothing was said in mitigation to warrant a discharge. The legislature saw fit to provide under the schedule to the Land Transport Act, a maximum penalty of $500 fine or 3 months imprisonment and 2 demerit points on first conviction. This is an indication of the seriousness with which such an offence was considered. A sentence should be passed with this in mind.

This appeal succeeds on ground (a) of the grounds of appeal. The discharge is quashed and the case remitted to the Magistrate’s Court for sentence. At the hearing of this appeal, the Respondent or his counsel failed to appear, despite a notice of hearing being served on his solicitors. A fresh notice will need to be prepared in the Magistrate’s Court.

Nazhat Shameem
JUDGE

At Suva
22nd November 2002