Sharma v The State [2005] FJHC 464; HAA0097J.2005S (30 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0097 of 2005S

Between:

SHELVIN SHARMA
Appellant

And:

THE STATE
Respondent

Hearing: 23rd September 2005
Judgment: 30th September 2005

Counsel: Ms P. Narayan for Appellant
Ms K. Bavou for State

JUDGMENT

The Appellant appeals against a sentence of a total of 2 years imprisonment for four counts of offences under the Land Transport Act. The original charges were as follows:

First Count

Statement of Offence

DANGEROUS DRIVING OCCASIONING DEATH: Contrary to Sections 97(2)(c) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

SHELVIN SHARMA s/o Abdul Kaiyum on the 1^st day of January 2005, at Wailoku in the Central Division drove a motor vehicle registration number CC 812 on Savura Bridge, Wailoku in a manner which was dangerous to the public having regards to all the circumstances of the case and thereby caused the death of LAISA DRIVER d/o John Driver.

Second Count

Statement of Offence

DANGEROUS DRIVING OCCASIONING GRIEVOUS BODILY HARM: Contrary to section 97(5)(a) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

SHELVIN SHARMA s/o Abdul Kaiyum on the 1^st day of January 2005 at Samabula in the Central Division, drove a motor vehicle registration number CC 812 on Savura Road Bridge, in a manner which was dangerous to the public having regards to all the circumstances of the case and caused grievous bodily harm to a pedestrian namely KARALAINI LEWANAVANUA.

The charges were first filed on the 4^th of January 2005. The Appellant was represented by counsel. The pleas were deferred. Counsel for the defence made representations to the DPP’s Office on the validity of the charges. The prosecution, on the 15^th of February 2005 added two additional charges to the charge sheet. They read as follows:

Third Count

Statement of Offence

DRIVING A MOTOR VEHICLE WITHOUT A VALID DRIVING LICENCE: Contrary to section 56(3)(6) of the Land Transport Authority Act 35 of 1998.

Particulars of Offence

SHELVIN SHARMA s/o Abdul Kaiyum on the 1^st day of January 2005 at Wailoku in the Central Division, drove a motor vehicle registration number CC 812 without being a holder of a valid driving licence.

Fourth Count

Statement of Offence

DRIVING A MOTOR VEHICLE IN CONTRAVENTION OF THIRD PARTY POLICY: Contrary to section 4(1)(2) of the Motor Vehicle (Third Party Insurance) Cap 177.

Particulars of Offence

SHELVIN SHARMA s/o Abdul Kaiyum on the 1^st day of January 2005, at Wailoku in the Central Division drove a private motor vehicle registration number CC 812 without having in force such a policy of insurance in respect of the third party policy as complied with under the provision of the Act.

On the 4^th of March 2005, the Appellant pleaded guilty on all counts. The facts, read by the prosecutor, were that on the 1^st of January 2005, the Appellant an 18 year old fitting machinist, was in a motor vehicle Registration Number CC 812. It was driven by his brother Shered Sharma. It had one other passenger, one Ravitesh Chand Sharma. On their way to Wailoku, the Appellant and his brother had an argument. The Appellant was under the influence of alcohol. Shered Sharma stopped the car and got off. The Appellant got into the driver’s seat and drove at high speed towards the Savura Road Bridge on the Wailoku road. There were three people on the bridge. One was crossing the bridge. The other two, including the deceased, one Laisa Driver, were on the right side of the bridge. The Appellant applied his brakes to avoid the person crossing. He hit the left railings. This caused the vehicle to swerve to the right, hitting both the deceased and her companion, Karalaini Lewanavanua. The deceased was thrown under the bridge. Karalaini Lewanavanua lay on the side of the bridge. The Appellant and his brother Shered Sharma (who was a trained nurse) tried to assist the deceased but were prevented from doing so by people from the local villages who began to assault them. They were similarly prevented from taking the deceased to hospital. When she was eventually taken to hospital she was found to be dead on arrival. Karalaini Lewanavanua was admitted to the Women’s Surgical Ward with a clinical fracture of the right femur. The deceased died of head injury associated with motor vehicle accident.

In the course of police investigations the Appellant was found not to have a driving licence. These facts were admitted by him. He had no previous convictions.

In mitigation, counsel said that credit should be given to the Appellant for his youth and good character. She further said that the accident had occurred whilst the Appellant was trying to avoid a pedestrian and that the Appellant’s brother might have been able to assist the deceased had he not been prevented from doing so. She further said that the road conditions were bad, there was a pothole on the gravelled road and the road itself was slippery. She said that the Appellant was remorseful and had apologized to the victim’s family in traditional way.

The learned Magistrate sentenced the Appellant on the 21^st of June 2005. She outlined the aggravating and mitigating features of the case and said that Parliament had indicated its intention that more serious penalties should be imposed on death drivers by the enactment of section 97 of the Land Transport Act which prescribed a maximum penalty of 10 years imprisonment and a minimum fine of $1000. She held that an immediate custodial sentence was warranted and started at 3½ years imprisonment on Count 1. However after reducing sentence to reflect mitigation, she reduced that sentence to 2 years imprisonment. On Count 2, she imposed a sentence of 12 months imprisonment, on Count 3, 30 days imprisonment and on Count 4, 12 months imprisonment. All sentences were to run concurrently.

He now appeals against the total sentence. Counsel for the Appellant referred to a number of sentencing guideline cases including Sefanaia Marau v. The State Crim. App. No. 79 of 1990, Guilfoyle (1973) 57 Cr. App. R. 549, Boswell (1984) 6 Cr. App. R.(s) 257, Jagdish Kumar v. The State Crim. App. HAA0080 of 1997, Achari v. The State Crim. App. HAA00017 of 1995 and Iowane Waqairatavo v. The State (Crim. App. No. 127 of 2004). She relied on the Achari decision to submit that the tariff was 6 to 12 years imprisonment with possible suspension. The two year term imposed in that case was reduced to 12 months imprisonment. She distinguished the Iowane Waqairatavo decision saying that the 18 month term imposed there, reflected a far worse example of driving including driving at high speed in a mini-bus, making a U-turn and causing the death of one person and injuries to eight more.

In relation to the second count of dangerous driving occasioning actual bodily harm, she says that section 97(5)(a) of the Land Transport Act does not provide for a penalty. She asks that the sentence be quashed accordingly. In relation to Counts 3 and 4, she submitted that it was unfair to impose the statutory maximum sentence on the offence. She asked that sentence on these counts be reduced.

State counsel opposes the appeal saying that the tariff for Causing Death by Dangerous Driving is 2 to 4 years imprisonment and that suspended sentences should be the exception. She said that all relevant factors were taken into account and that the sentence of 2 years imprisonment and 3 years disqualification from driving is neither harsh nor excessive.

The decisions on sentences for the offence of causing death by dangerous driving are relevant to the old Penal Code offence. The maximum sentence was 5 years imprisonment. The sentences under the old regime ranged from a suspended sentence where the driving which caused death arose from momentary inattention, or mere carelessness, to a short custodial term where the offender had driven recklessly in bad conditions. Even under the old regime Fatiaki J in Sefanaia Marau said that offenders should not assume that they would automatically receive a non-custodial term. Much depended on the circumstances of the case, the driving record of the offender, any consumption of alcohol or drugs and other related offences such as driving without a licence or third party insurance.

In 1998 Parliament passed the Land Transport Authority Act, and increased penalty for causing death by dangerous driving to 10 years imprisonment. There can be no clearer Parliamentary intention as to sufficiency of penalty. To reflect such Parliamentary intention, I held in Iowane Waqairatavo that the tariff for such offences must increase to 2 to 4 years imprisonment. In that case, I upheld an 18 month term for a minibus driver who drove at high speed on a highway and made a U-turn without properly checking that his way was clear. He pleaded guilty and the other driver involved in the accident was also partly to blame. In that case I said that an appropriate sentence would have been 2 years imprisonment and that the 18 month term imposed was therefore neither harsh nor excessive.

In this case, an appropriate starting point would have been 2 years imprisonment. After mitigation for youth, good character, the guilty plea and the sincere expressions of remorse and apology, that sentence would have been reduced to 12 months imprisonment. To reflect a bad piece of driving on a road with potholes and loose gravel, whilst approaching a narrow bridge with pedestrians on it, and to reflect the consumption of alcohol, I would increase sentence by one year to 2 years imprisonment. There can be no question of suspension. This was a reprehensible example of a driver driving recklessly on a slippery road whilst approaching a bridge at high speed. There are no exceptional circumstances to justify suspension.

On Count 2, the wrong sub-section of section 97 of the Act is quoted in the charge sheet. It appears that the Statement of Offence should have cited section 97(1) of the Act, instead of which it cited, section 97(5). However the particulars of offence are set out with sufficient clarity to explain to the Appellant what he was being accused of. Further, counsel did not object to the charge in the lower court. Section 342 of the Criminal Procedure Code prevents her from raising regularity of the charge on appeal. The defect in the charge did not lead to the Appellant being deceived or misled as to the nature of the allegations, particularly because he was represented by counsel.

On Counts 3 and 4 the learned Magistrate imposed the maximum term possible. This is wrong in principle because the Appellant was a first offender. I therefore allow the appeal on these counts and reduce the sentences to 15 days imprisonment on Count 3, and 3 months imprisonment on Count 4. All sentences are to run concurrent to the 2 year term imposed on Count 1.

This appeal succeeds in part. However the total sentence of 2 years imprisonment remains.

Nazhat Shameem
JUDGE

At Suva
30^th September 2005