Prasad v The State [2004] FJHC 68; HAA0055X.2003S (5 March 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0055J OF 2003S

Between:

VINOD PRASAD
Appellant

And:

THE STATE
Respondent

Hearing: 13th February 2004
Judgment on Sentence: 5th March 2004

Counsel: Mr. M. Raza for Appellant
Mr. J. Rabuku for State

JUDGMENT ON SENTENCE

In the course of hearing the Appellant’s appeal against conviction, I saw that the learned Magistrate had imposed “partial disqualification” on the Appellant. I asked counsel to address me on the question of the lawfulness of such an order. The State has not complied with that order within the time specified, apparently because counsel for the State has been ill. Counsel for the Appellant has however complied.

He submits that disqualification under section 102 of the Land Transport Act is not mandatory and that therefore the court can impose disqualification in respect of a limited number of hours in the day. He submits that the use of the word “may” in section 59(2) of the Act, creates a discretion to impose “partial disqualification.” He also relies on the decision of Pain J in State v. Kesho Prasad Crim. App. No. 39/93 which, he submits, upheld a similar order under the old Traffic Act.

Section 59(2) of the Land Transport Act provides:

“Unless disqualification is mandatory, if a person is convicted of an offence for which disqualification is part of the prescribed penalty, the Court may if sufficient reasons are shown, disqualify the person for a shorter period than that prescribed, or decide not to disqualify the person, and must specify the reason.”

In Kesho Prasad (supra) the Director of Public Prosecutions appealed against an order, on conviction for dangerous driving, of disqualification from driving all but Group II vehicles. The main ground of appeal was that the magistrate erred in ordering a variation of sentence after the sentencing process was over. Indeed the sentence was varied when counsel for the respondent was applying for suspension of sentence pending appeal. Pain J held that the magistrate was functus officio after sentence and could not have varied the sentence. The order for partial disqualification was therefore quashed. The respondent then asked that the disqualification originally imposed also be quashed. That was an order for total disqualification for 6 months.

Pain J quashed the order on the ground that the order for disqualification on conviction for dangerous driving was discretionary and not mandatory, the prosecutor in the lower court did not object to the “partial” disqualification, that such disqualification had already been served by the respondent and that therefore it would be inequitable for the respondent to be punished afresh. Pain J did not rule on the question of the legality of the “partial disqualification.” Indeed he said it was unnecessary for him to do so. He said:

“In view of this decision it is unnecessary for the Court to determine a further matter that was adverted to in the course of hearing. That is whether the Magistrates’ Court has jurisdiction to impose a partial disqualification of the type imposed in this case. It may be that the only power given by section 29 of the Traffic Act is to impose a total disqualification or a disqualification limited to the driving of the same class or description of vehicle in relation to which the offence was committed. If this is so, then the desirability of legislation to authorise the common practice of imposing partial disqualifications should be urgently considered by the appropriate authorities.”

No such legislation has been passed. Indeed the Land Transport Act makes no provision for partial disqualification. I considered the question in relation to the Act in State v. Jitesh Prasad Crim. App. HAA0038.2003.

In that case the Director of Public Prosecutions appealed against a similar order in the case of a person convicted of driving with more than the prescribed concentration of alcohol in his blood. The magistrate ordered disqualification for 12 months but said that the respondent could drive during daylight hours. I said in that case:

“The legislature has provided for no power to order partial disqualification. This is logical. The order for disqualification is a sentence which acknowledges that a driver is a safety risk for other road users. By allowing him/her to use the road during some hours of the day, how is the safety of other road users protected? ...... The 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. When a person is disqualified from driving, he is taken off the roads for the period of time specified.”

The same principles apply in this case. The order made by the learned Magistrate fails to protect road users and allows the Appellant to drive when the roads are the busiest. There is no provision for partial disqualification under the Act either when such disqualification is mandatory or when it is discretionary.

For these reasons, the order for partial disqualification is set aside and substituted with a 12 month disqualification to run from the 18th of September 2003.

Nazhat Shameem
JUDGE

At Suva
5th March 2004