Kumar v State [2002] FJHC 292; HAA014.2001S (19 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 014 OF 2001S

Between:

AJNESH KUMAR
Appellant

And:

THE STATE
Respondent

Hearing: 12th April 2002
Judgment: 19th April 2002

Counsel: Mr A.K. Singh for Appellant
Mr N. Nand for Respondent

JUDGMENT

On 12th April 2002, I dismissed the Appellant’s appeal against conviction. This judgment deals with his appeal against sentence.

The Appellant (who is on bail pending appeal) was sentenced to 18 months imprisonment, and disqualified from driving for two years. His counsel submits that the sentence was harsh and excessive, and wrong in principle. The appeal is opposed by the State, on the ground that the offence was serious and that the sentence was not wrong in principle.

A perusal of English and Fiji cases, in relation to sentencing in Causing Death by Dangerous Driving, shows that principles have been developed. In Guilfoyle (1973) 57 Cr. App. R. 549 (followed by Fatiaki J in Sefanaia Marau -v- The State Criminal Appeal No. 79 of 1990) the Court of Appeal (per Lawton LJ) said that in cases of Causing Death by Dangerous Driving, there were two main categories. One, where the accident arose through momentary misjudgment and two, where the accused showed a selfish disregard for the safety of other road users or with a degree of recklessness. There were also according to the Court of Appeal, three categories of offenders, one where he/she has a good driving record, one where he/she has had speeding convictions or careless driving convictions, and one where the offender has a record of persistently reckless driving.

For those cases where the accident is caused as a result of momentary inattention and the driver has a good driving record, a non-custodial sentence is normally appropriate. For those cases where the offender has shown a selfish disregard for other road users, and has a bad driving record, a custodial sentence with a long period of disqualification is appropriate.

This decision was cited with approval in Sunil Dutt Sharma -v- R (1978) 24 F.L.R p.166, and a sentence of nine months imprisonment was upheld because the appellant had shown “reckless disregard for the safety of other road users.”

Boswell (1984) 79 Cr. App. R, was decided by the English Court of Criminal Appeal after the 1977 amendment to the (UK) Road Traffic Act 1972 which created the offence of causing death by reckless driving was passed. Although the evidence required for reckless driving is different than it is for dangerous driving the maximum sentence for death by reckless driving was 5 years imprisonment, as is the case under section 238(1) of the Penal Code. In that case the Court of Appeal listed a number of factors which are relevant in approaching sentence. Aggravating factors included the consumption of drug and drinks, evidence of “racing”, excessive speed, a disregard of warnings from passengers, prolonged and persistently bad driving, and driving whilst disqualified. A bad driving record is also an aggravating factor.

Mitigating factors include a momentary reckless error of judgment, a good driving record and a plea of guilty. Where there are no aggravating factors, a non-custodial penalty may be appropriate, but if there is an aggravating feature present a custodial term is necessary. In that case, the appellant Boswell drove at a high speed and overtook in dangerous circumstances thereby killing a pedestrian. He was drunk. A term of 18 months imprisonment was upheld, the court saying, in the light of the evidence of drink, that “it was, if anything on the lenient side” (at p.284).

Although the offence of causing death by reckless driving was a more serious offence than our section 238 of the Penal Code, because of the need to prove failing to give thought to a risk, or knowingly taking a risk, the aggravating and mitigating factors listed in Boswell are useful. However it must be remembered that some drivers who fall into the “momentary inattention” category of Guilfoyle would not have been convicted of reckless driving, because for the offence of reckless driving, there must be evidence of a reckless disregard for road users. Thus, not all sentences passed for the offence of Causing Death by Reckless Driving are helpful in considering an appropriate sentence for our Penal Code offence.

Counsel for the Appellant of course submitted on appeal against conviction, that this was a case of “momentary inattention.” He further submits that suspended sentences are given by the magistrates’ courts for most offences of Causing Death by Dangerous Driving. He has provided me with newspaper cuttings reporting two such cases. Unfortunately the individual circumstances of those cases, and the degree of fault on the part of each accused is not clear from the reports. Without the respective judgments of the courts, I am unable to ascertain whether the cases fell into Lawton LJ’s first or second category.

As to the facts of this case, I cannot accept that this was a case of momentary inattention. The learned Chief Magistrate clearly was of the view that the Appellant was driving at a dangerously high speed, that he did not negotiate the bend with care and that he did not give any regard to other road users, or to the fact that he was driving a loaded 3 ton truck. This is not a case of momentary inattention, of a driver who is distracted for a second and veers towards a pedestrian in that split second. This is a case of reckless disregard for other road users. It was never suggested that the deceased in any way contributed to the accident.

In all the circumstances, a custodial sentence was warranted. The maximum term is 5 years imprisonment. It is not clear what the Chief Magistrate used as his starting point, but given the serious nature of the offending, a starting point of 2 years imprisonment might have been appropriate. With a reduction for mitigating circumstances, the 18 month term is not wrong in principle. For these reasons the appeal against sentence is dismissed. The Appellant must serve his sentence forthwith. His term of disqualification also remains.

Nazhat Shameem
JUDGE

At Suva
19th April 2002