Vunisaqiwa v State [2009] FJHC 277; HAA052.2009 (11 December 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Case No. HAA 52/09

Between:

ULAIASI VUNISAQIWA
Appellant

And:

THE STATE
Respondent

Mr. A. Vakaloloma for the Appellant
Ms. S. Puamau for the State

Date of hearing: 4 December 2009
Date of judgment: 11 December 2009

JUDGMENT

1. On the 14th July 2009 the appellant was convicted after trial in the Nausori Magistrate’s Court of three counts of dangerous driving causing death. On the 7th August 2009 he was sentenced to three concurrent terms of imprisonment of 22 months for each offence, a fine of $1,000 for each offence and a disqualification from driving for 2 years. He now seeks to appeal both convictions and sentences.

2. The charges arose out of one incident in which three people died. The prosecution alleged at trial that in the evening of 22 November 2004 at sometime just before 8pm the accused was driving a large 10 wheeler truck along Lodoni Road which was under construction. The accused was employed by the Roading Contractor to move and dump gravel. He was engaged in this work at that late hour, when realising that he had left a spare motor part on the other side of the road, he crossed into the right hand lane to retrieve it. It was while he was moving very slowly in this lane (which was the lane for on-coming traffic) that a vehicle came from the other direction towards him and ran straight into him, causing the death of the driver of that vehicle and two of his passengers.

3. In his appeal against conviction, counsel for the appellant pleads that the Magistrate failed to properly consider and evaluate the necessary elements required to prove dangerous driving and further that he failed to consider the fact that the on-coming vehicle was travelling at high speed thereby not displaying "proper skills".

4. In his grounds of appeal against sentence he submits that the sentence was manifestly harsh and excessive, that undue weight was placed on the number of death and that the Magistrate failed to consider "the relevant laws and principle (sic) of sentencing".

5. Counsel for the State responds that the Magistrate had indeed correctly considered the requisite elements of the offence, and in respect of the sentence submits that rather than being harsh and excessive the sentence is very lenient when considering the "tariff" for this offence.

Conviction

6. In analysing the evidence, the Magistrate first referred to evidence that was not in dispute, namely that the accused had crossed to the right hand lane in his vehicle; that having done so he saw the lights of an approaching vehicle and had then moved as far as he could to the right to make room for the coming vehicle. He found that it was dark (a fact conceded by counsel for the appellant before me); the road was gravelled and unmarked and was in a state of being repaired. He then went on to determine whether the accused’s actions amounted to dangerous driving. He relied on the appellant’s own admission in cross examination that by moving to the right hand land he had created a dangerous situation in coming to the conclusion that the manoeuvre was very unsafe and negligent.

7. Counsel for the appellant in his oral submissions before me stressed the fact that the accused was working at the time in the dark of night and that at some distance away there was a sign warning of "road works ahead". There is no evidence as to how far away this sign is, or if it was lit at night and there is certainly no evidence in the lower court about this sign. I cannot understand the importance of the fact that the appellant was working: whether he be driving for work or for pleasure he can still be driving dangerously. Counsel submits that he had to be there because of his work, but that misses the point of the offence that by his operation of the vehicle he had created a situation which was dangerous in the extreme.

8. The courts here follow the English decision in Gosney [1971] 3 All ER 220 which states that the test is:

"in order to justify a conviction there must be not only a situation which viewed objectively was dangerous but there must also have been some fault on the part of the driver causing the situation".

This case was followed by the FCA in Kumar v. State [2002] FJCA 12 where in adopting the Gosney test went on to say:

"So long as there is fault on the part of the driver which creates a dangerous situation he can be guilty of causing death by dangerous driving and it matters not whether the driving was careless dangerous or reckless".

9. It would appear that the appellant misunderstands the true test. He submits that the accused was driving for work at a very slow speed and cannot therefore be said to be driving dangerously. That misses the point entirely. Given the conditions at the time, the appellant by driving his large vehicle into the on-coming lane, created an exceedingly dangerous situation for other road users.

10. A user of the road such as the deceased cannot have reasonably expected that at 8pm on this clear but dark night a very large road works vehicle would be in his lane, blocking his progress. That is the dangerous driving and it was quite proper for the Magistrate so to find.

11. The appeal against conviction is dismissed.

Sentence

12. The Magistrate quite properly referred to the "tariff" case of State v. Benjamin Padarath HAC 13 of 2004 where Shameem J affirmed the appropriate sentence for this offence to be between 2 to 4 years. He then took the lower end of this band (24 months) as his starting point. For mitigating features he deducted 8 months and then increased it by 6 months for the aggravating feature [which he said to be causing the death of 3 persons by dangerous driving]. The resulting term of imprisonment was then 22 months which he imposed for each offence, to be served (concurrently. In addition he imposed a fine of $1,000 for each of the three offences and disqualified the appellant from driving for 2 years.

13. Counsel for the appellant in appealing the sentence still seeks to rely on the premise that the appellant was working and driving at a slow speed. For reasons given above, if that be the case then it is of no moment. He then goes on to attempt to distinguish the guideline case of Benjamin Padarath (supra) by claiming that the appellant in that case was drunk and instead seeks to rely on the case of Chandra Pal v. R (1974) 20 FJLR 1 where it was held "driving must be shown to be the real cause of the accident ......prosecution must show fault on the part of the driver causing a situation which, viewed objectively, was dangerous".

14. The words in Chandra Pal are indeed extremely apposite, however counsel for the appellant would rely solely on the first part of the quotation and not the second. An objective view of the situation in this case is that the appellant had driven his vehicle onto the wrong side of the road thereby creating a situation which was manifestly dangerous.

15. The sentence passed was within the guidelines and if anything very lenient in the circumstances.

16. However, there is a point in favour of the appellant which was never the subject of submissions by either counsel, although counsel does allude to it in his original grounds of appeal against sentence. That is ground 2(f) wherein counsel prays:

"Undue punishment was placed on the number of deaths resulting and not on the singularity of the event that caused it."

17. In arriving at his final sentence the Magistrate said:

"The aggravating factors are that your driving created by (sic) a dangerous situation which led to the loss of 3 lives. This fact cannot be dismissed. The Court increases your sentence by 6 months to reflect the dangerous situation that you created that caused the loss of 3 lives".

That cannot be an aggravating feature because the appellant had been charged with 3 counts for each of those deaths. To be convicted and sentenced on each count does indeed reflect the dangerous situation causing the loss of three lives. It may well be that the Magistrate was overwhelmed by the utter tragedy of the accident which led him to thus increase the sentence but this Court believes that to do so was unfair to the appellant.

18. The result therefore is that this Court would remove the additional six months given as an aggravating feature. The appeal against sentence succeeds to that extent. The three concurrent terms of 22 months are quashed and a new sentence of 16 months for each count is substituted to be served concurrently. The fines and disqualification remain as they are.

Paul K. Madigan
Judge

Dated at Suva.
11 December 2009