State v Singh [2005] FJHC 383; HAA0103J.2005S (9 December 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0103 of 2005S

Between:

THE STATE
Appellant

And:

SUBEN SINGH
Respondent

Hearing: 7th December 2005
Judgment: 9th December 2005

Counsel: Mr. D. Prasad for State
Mr. A.K. Singh for Respondent

JUDGMENT

This is an appeal by the Director of Public Prosecutions. The Respondent was charged with the offence of dangerous driving occasioning grievous bodily harm contrary to section 97(4)(c) of the Land Transport Act. He pleaded guilty and was fined $150 in default, 60 days imprisonment. The State appeals against the sentence imposed on the grounds that it is manifestly lenient and wrong in principle. In particular, the State submits that the learned Magistrate erred in failing to disqualify the Respondent.

The case was first called on the 2^nd of November 2004. The Respondent pleaded not guilty. There were several adjournments and on the 7^th of July 2005, the Respondent pleaded guilty. He was represented by counsel.

The facts were that on the 13^th of May 2003, at 9.40pm the Respondent was driving his motor vehicle along Queens Elizabeth Drive. The complainant was walking along Queen Elizabeth Drive, on the loose gravel on the side of the road, near the Bowling Club. The Respondent bumped him, causing him to fall down. The Respondent reversed, stopped for two minutes, then drove away. The complainant was taken to the CWM Hospital. He was found to have a broken leg and superficial cuts. The Respondent was charged with dangerous driving occasioning grievous bodily harm.

The Respondent admitted these facts. He was convicted. He was a first offender.

In mitigation, he said he was 39 years old, and married with three children. He was a taxi driver and had driven since 1981 without being involved in any accident. The learned Magistrate found that he had a discretion not to impose disqualification. He fined the Respondent $150.00 in default 60 days imprisonment.

State counsel submits that this sentence is manifestly lenient and that the Respondent should have been disqualified from driving. Counsel for the Respondent says that there was no error of principle.

There is no dispute that according to the Schedule under section 114 of the Land transport Act 1998, the maximum penalty on conviction under section 97(4) of the Act, is $2,000 fine, or 2 years imprisonment and/or disqualification from driving for up to 12 months. Section 59(2) of the 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 reason is shown, disqualify the person for a shorter period than that prescribed, or decide not to disqualify the person, and must specify the reason.”

The reasons for the failure to disqualify are clear from the record. Firstly, the Respondent was a taxi driver with a clean record over 24 years. Secondly, he pleaded guilty. Thirdly despite driving off after the accident, he himself reported the matter. Fourthly the complainant was partly at fault for not walking on the footpath next to the seawall.

In these circumstances I am not persuaded that the learned Magistrate erred in principle. He chose not to disqualify the Respondent and gave reasons for his decision. The fact that another court might have imposed a harsher penalty is irrelevant. The sentence imposed was not wrong in principle.

For these reasons, this appeal is dismissed.

Nazhat Shameem

JUDGE

At Suva
9^th December 2005