State v Ravula [2004] FJHC 119; HAA0040.2004 (30 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL ACTION NO.: HAA0040 OF 2004

BETWEEN:

STATE
Appellant

AND:

KALINE RAVULA
Respondent

Counsel: Ms P. Madanavosa – for the State
Respondent – In Person

Date of Hearing: 30th June, 2004
Date of Judgment: 30th June, 2004

JUDGMENT

This is an appeal by the State against the respondent’s sentencing upon guilty plea and conviction for the offence of dangerous driving contrary to Section 98(1) and Section 114 of the Land Transport Act 1998.

Background

It was said in the particulars of the offence that the respondent drove his motor vehicle on the 7th of February, 2003 along Edinburgh Drive, Suva in a manner which was dangerous to the public having regard to all the circumstances of the case.

The record reflects that those facts were read out by the Prosecution and a copy handed to the Court. Regrettably that is not contained in the record. All that exists is a shorthand note of the salient features of that summary of fact which reads as follows:

- Dangerous Driving – 9.30pm
- Edinburgh Drive, Suva
- Accused driving Private Motor Vehicle
- Reg. No. CS226
- On Edinburgh Drive, Suva
- Complainant driving Private Motor Vehicle
- Reg. No. CF463
- At Edinburgh Drive
- Samabula to Suva
- Accused Vehicle overtake a Bus
- Accused vehicle went out of control
- Collided with Complainant’s vehicle
- Head on Collision
- One of Complainant’s vehicle passenger got injured
- Medical – Exhibit 1
- Accused
- Dangerous driving
- Admitted offence
- Facts – admitted
- Previous Conviction – 1st offence

Against this background taking into account the unrepresented accused’s mitigation the learned Magistrate sentenced him to:

1. A fine of $350.00 to be paid 30 days in default of 60 days imprisonment.
   
2. Accused is given a partial disqualification for next 3 months. Only to drive 6.00am to 6.00pm 7 days a week.
   
3. 30/03/04 – mention only to review payment.
   

I note the fine was paid and that the disqualification will end on the 30th of June, 2004.

The Appellant’s Case

In accordance with the appeal judgment of my sister Justice Shameem in the State v Prasad HAA0038.2003S, the State submits and I accept that Courts do not have powers to order disqualification between certain hours of the day. They do not have powers to disqualify from driving certain classes of vehicle.

I find that by imposing a partial disqualification the learned Magistrate was wrong in Law. He had no power to disqualify the respondent between certain hours of the day. However, in accordance with Section 59(2) of the Act the Court does have power to disqualify a person for a shorter period than that prescribed or indeed not to disqualify the person at all but must specify the reasons for so doing.

Length of Disqualification

The appellant complains that the length of disqualification was so lenient as to be unjustified. The State points to the scarce reasoning contained in the record and submits that there was no judicial basis for making a decision to disqualify this appellant for less than the 6 months offered in Section 114 of the Act.

Again in Prasad (supra) my sister Justice Shameem provided guidance from the facts to be considered when determining the length of disqualification. At page 5 of her judgment she said:

“The length of disqualification depends on the following factors:

1. The standard of driving shown on the offending.
   
2. Any previous convictions for traffic offences.
   
3. The need to protect the public from dangerous/careless/drunk drivers.
   
4. Good character.
   
5. Serious hardship to the families.
   
6. Driving providing the source of livelihood for the offender.”
   

The learned Magistrate in sentencing apart from noting the good character of the respondent did little else to note the reasoning he used to make the sentencing finding he did.

During the course of the appeal I had the opportunity of reviewing the police file. It is clear that the Prosecutor failed to provide the Court with a full and accurate description of all of the material contained on that file. Prosecutors must ensure that the Court is fully informed of all the relevant circumstances of an offence. It would be improper for me to take into account on this appeal the contents of a full and frank admission from the respondent made shortly after the incident which gives rise to the charges. However, I note that this confession was not placed before the learned Magistrate. It should have been.

Dangerous or Careless Driving

The respondent was charged with dangerous driving. He was an unrepresented accused. The facts as presented to the presiding Magistrate were simply that on a specified date at 9.30pm the respondent went to overtake a bus. It had been raining. The road was wet and no doubt slippery. The bus pulled out more sharply than the respondent was expecting. It effectively cut him off. He had to swerve to avoid a collision. The respondent’s reactions were slow. He lost control of his vehicle in the slippery conditions and collided with the complainant’s car.

Although the unrepresented respondent pleaded guilty to the charge as laid, it was in my view nonetheless incumbent on the learned Magistrate to make sure that the facts presented to him could properly support the charge. In my view the unrepresented respondent was not driving dangerously. There was nothing put before the learned Magistrate that would indicate that to be so. There was no antecedent driving in a reckless manner. There was no evidence of undue speed. It appears as if the Prosecutor relied entirely on the fact of accident to indicate dangerousness. The fact of accident is not determinative of dangerous driving.

In my view the facts presented to the learned Magistrate rather indicated a lack of skill and a falling below the standard of a reasonable and prudent driver in the circumstances as opposed to reckless endangerment of public safety.

In circumstances where Courts are uncertain on a guilty plea that the facts presented to it are sufficient to prove the charge they must be vigilant to make enquiries and if necessary refuse to accept that the summary of facts containing enough information to convict the unrepresented defendant. In that instance the proper course is to invite the accused to change his plea.

In the final analysis, however, these observations are not determinative of my task on appeal. The process merely indicates that on an analysis of the facts presented to the learned Magistrate this was barely dangerous driving and so might be treated at the lower end of the scale. That is particularly so when considering the factors listed earlier in this judgment:

1. I would find that the standard of driving shown on the offending was barely dangerous and in reality careless. This incident was created by the bus but continued by the driver’s lack of skill in wet conditions in response to an emergency situation.
   
2. The respondent had no previous convictions for traffic offences.
   
3. There is little need to consider protection of the public bearing in mind my finding on 1.
   
4. In a long driving history the respondent has good character.
   
5. There would be serious hardship to his family as he uses his motor vehicle to provide a source of livelihood.
   

For all of these reasons the imposition of a minimum term was called for.

I adopt the reasoning of my brother Justice Gates in Turagatautoka v The State, Criminal Appeal HAM0058.03S. In that case the appellant was charged with a single charge of dangerous driving as a result of similar bad overtaking. At page 4 the learned Justice explores the Magistrate’s discretion not to disqualify under Section 59(2) of the LTA.

At paragraph 20 of page 5 his honour finds and I adopt that the words “sufficient reason” are wide enough to include reasons of a more general character which relate to the offender and not solely to the offence, CF Jones v English [1951] 2 ALL E.R. 853.

His honour goes on to observe that sometimes such reasons will depend not so much on the accused’s mitigation but upon the very nature of the circumstances concerning the incident itself. In that case my brother Justice noted that the appellant had no previous convictions, that he was 53 years old and had employment with a statutory body that required him to have a driving licence. No one was injured by the error of judgment that caused the accident. The result is that the fine was upheld. However, the disqualification was reduced from one of 6 months to 3 months effective from the original date of sentence.

I find Turagatautoka a persuasive authority.

However, further than that it is clear that the respondent has by the time of this appeal met the penalty originally given to him. He has paid his fine. The State accepts that he has faithfully served his term of partial disqualification. In those circumstances, I also take into account the effect of a decision of the English Criminal Court of Appeal in the Attorney-General’s Ref. No. 33 of 1997. This is a case dealing with the wrongful impossible of suspension of a term of imprisonment for a violent offence. The Court although making that finding nonetheless did not order the respondent to immediately go to jail. It was said that on a State’s Appeal (Attorney-General’s Reference) the ultimate penalty imposed must also firmly take into account whether or not the respondent had served the term of his original sentence and thereby met the penalty of the Court at first instance.

In those circumstances the Court quite properly, in my view, stated that it would be wrong to impose a further penalty by way of a fully custodial and immediate sentence of imprisonment when the original sentence had been completed. At the very least the appeal sentence calculation must take into account that fact and the overall sentence be reduced to reflect the fact the sentence at first instance has been fully or partially completed.

The State’s Appeal

This was the State’s appeal against both the duration of disqualification and disqualification for part of a day during that period. For the reasons expressed in this judgment I find the appeal succeeds in part only.

The learned Magistrate had no power to partially disqualify the respondent. As for the duration of the disqualification I find that there was no basis displayed in the record for the orders made. However, on a review of the facts and consideration of the proper factors that should influence the duration of a period of disqualification, I find that 3 months was an appropriate term for this offence. This way driving displaying elements of lack of skill rather than reckless endangerment.

Conclusion

Accordingly the orders of the Court are that the sentence in the court below is varied, the appeal succeeds in part. The fine is maintained. The appeal against the sentence of disqualification from holding or obtaining a driving licence succeeds. That sentence is quashed. I substitute a period of disqualification of 3 months from the original date of sentence in the Magistrates Court i.e. the 30th of March, 2004. The practical result for the respondent is that he will have completed his period of disqualification today the 30th of June, 2004.

Gerard Winter
JUDGE

At Suva
Wednesday 30th June, 2004