Singh v The State [2005] FJHC 263; HAA0075J.2005S (2 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0075 of 2005S

Between:

SAGEND SINGH
s/o Ram Kissun Singh
Appellant

And:

STATE
Respondent

Hearing: 26th August 2005
Judgment: 2nd September 2005

Counsel: Appellant in Person
Ms K. Bavou for State

JUDGMENT

This is an appeal against conviction and sentence. The Appellant was found guilty of the offence of dangerous driving, on the 18th of May 2005. He was sentenced to $1,000 fine and 6 months disqualification from driving. He appeals against conviction and sentence.

His grounds of appeal are that the learned Magistrate failed to consider the Appellant’s evidence, that the sentence was manifestly excessive, and that the fine was imposed without considering relevant factors.

The Appellant was charged with driving dangerously on the 13th of June 2003 on Fletcher Road. After several adjournments, the trial proceeded on the 21st of April 2005. PW1 was Felix Harm Nam. He said that on the 13th of June 2003, he was going home to Nabua on Fletcher Road on a motor cycle at about 1.15pm. He was travelling on the middle lane. There was a vehicle on his left. The Appellant drove his truck out of the Vidal Street junction causing the witness to collide with the backside of the truck. The collision caused him to fly over his motor cycle. He was taken to hospital where he was admitted for two weeks. He had a fracture to his right leg and he was unable to walk for the period of his admission. Under cross-examination, he denied that there was an island or a roundabout at the place where the accident occurred.

The Appellant’s interview was then tendered. In it, the Appellant said that as he arrived at the Vidal Street junction, he stopped, looked both sides and then moved forward when he saw that an approaching taxi was too far to pose a risk. He pulled out, but the taxi was overtaken by PW1 on a motor cycle. The motor cycle collided with his truck. He stopped a taxi to convey the motor cyclist to the CWM Hospital. He said that the accident was not his fault and that it had been caused by the motor cyclist overtaking the taxi.

One PC Pita Tuvusa gave evidence that he attended the traffic accident and found that the accident was caused because the Appellant did not stop at the junction to give way to traffic on the main road.

The Appellant gave sworn evidence. He said that he did stop at the junction and that he did not misjudge the distance between him and the taxi and motor cycle. Judgment was delivered on the 18th of May 2005. The learned Magistrate found that the Appellant had failed to give way at the junction of Vidal Street and Fletcher Road, that he wholly contributed to the accident and that he had caused PW1 to be hospitalised for 2½ weeks. He convicted him.

The Appellant had no previous convictions. In mitigation, he said he was 47 years old, and unemployed. He lived at Tacirua village and was married with no children. He was suffering from a disease. The court then sentenced him to $1000 fine and 6 months disqualification.

He now appeals against conviction and sentence. At the hearing of this appeal the Appellant repeated the position he took at the trial. He said that the motor cyclist should have been charged, particularly as he was driving without a driving licence. In relation to sentence, he said that although he was prepared to accept any length of disqualification, he was in no position to pay a fine of $1,000, because he was unemployed and suffering from an incurable illness of the brain. He further said that his medication already cost his family $8 a day, and any fine imposed on him would be a further burden on his family.

The State submits that the Appellant’s manner of driving fell below the standard expected of a prudent driver, and that he had thereby created a dangerous situation. The State’s submission is that the Appellant was rightly convicted of dangerous driving. However counsel conceded that it was wrong in principle to impose the highest sentence possible under section 98(1) of the Land Transport Act. She suggested that the learned Magistrate imposed the sentence because of the injury caused to PW1. However she agreed that there was no justification for imposing a sentence at the highest end of the tariff for this offender.

I have no hesitation in dismissing the appeal against conviction. PW1, whether or not he had a licence, had the right of way. He was driving on the middle lane of the main road. The Appellant emerged from the junction and pulled into the main road without giving way to the traffic on his right. He thereby created a dangerous situation, and was rightly convicted.

However the sentence is manifestly excessive for two reasons. One is that it is the highest possible under section 98 and 114 of the Land Transport Act.

State counsel referred me to State v. Onisimo Roqica Crim. App. HAA0046 of 2004S which was an appeal against sentence on a charge of dangerous driving, by the Director of Public Prosecutions. In that case, the victim, a pedestrian, also received injuries. I quashed the absolute discharge imposed by the Magistrates’ Court, and entered a sentence of $500 fine and 3 months disqualification from driving. In that case there was evidence that the driver was drunk, which was an aggravating factor. So the Appellant in this case received a sentence beyond the tariff for a first offence with no aggravating factors other than the serious injury to the victim.

The second reason that the sentence was wrong in principle was that the Appellant is in no position to pay $1000 fine. He is unemployed and because of his illness, is in no position to pay the fine himself. It is clear from his submissions in court that he does not wish to place a further financial burden on his family. If he does not pay his fine, he could be sent to prison in default of payment. That would be in breach of section 23(2) of the Constitution which prevents a court from detaining a person for non-payment of a fine when he did not have the means to pay it.

Having heard the Appellant, I am satisfied that even a $500 fine would be impossible for him to pay. I therefore order that the order for a fine of $1000 be quashed. I order that he pay a fine of $200 within a period of 5 months at a rate of $40 a month. However the order for the 6 month disqualification remains.

This appeal succeeds to that extent.

Nazhat Shameem
JUDGE

At Suva
2nd September 2005