Sadiq v State [2010] FJHC 560; HAA024.2010 (15 December 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAA 024 of 2010

BETWEEN:

RICHARD RAZIK SADIQ
The Appellant

AND:

THE STATE
The Respondent

Counsel: Mr. A. Sen for the Appellant
Mr. T. Ravuniwa for the State

Date of Hearing: 10 December 2010
Date of Judgment: 15 December 2010

JUDGMENT

[1] The appellant was convicted of driving motor vehicle under the influence of intoxicating liquor on his own plea of guilty in the Magistrates' Court. He was sentenced to a fine of $3000.00 in default 3 years imprisonment and was disqualified from driving for 3 years.

[2] He filed a timely appeal challenging his conviction and sentence, but at the hearing of the appeal, he abandoned his appeal against conviction and pursued his appeal against sentence alone. His only contention is that his sentence is manifestly severe when compared to sentences imposed in other similar cases.

[3] The facts are that on 7 September 2010 the appellant was driving a vehicle on a public road in Taveuni when a police officer stopped him. He smelt of liquor. He was arrested and taken to the police station. At the station he was given the option of being examined by a police officer or a medical doctor in a public hospital. The appellant opted to be examined by a medical doctor. Upon examination the doctor concluded that the appellant was under the influence of alcohol and incapable of driving.

[4] On 8 September 2010, the appellant appeared in the Magistrates' Court. He waived his right to counsel and pleaded guilty to a charge contrary to sections 102(1) and 114 of Land Transport Act of 1998. The maximum penalty for the offence under this section is 5 years imprisonment or fine of $5000.00 or both and disqualification for 5 years.

[5] In mitigation the appellant said he was married with a child and his wife was expecting their second child. He earned about $50.00 to $60.00 per trip as a fisherman.

[6] The learned Magistrate took into account the appellant's early guilty plea, remorse and previous good character as mitigating factors.

[7] The aggravating factor considered by the learned Magistrate was the fact that the appellant drove on a public road whilst being drunk. The fact that the appellant drove on a public road whilst being drunk was an element of the offence and therefore it should not have been considered as an aggravating factor. Aggravating factors are those facts that increase an offender's culpability.

[8] Elements of an offence make up a crime. When an offender is punished for his crime, the sentencer should consider facts subjective to the offender as mitigating factors and facts that increases culpability as aggravating factors.. Elements of an offence neither increases nor reduces culpability.

[9] In the present case, there was no aggravating factor present to impute higher culpability when the appellant committed the offence of driving motor vehicle whilst under the influence of intoxicating liquor. The appellant did not cause an accident. Nobody was injured. Nobody's property was damaged. The appellant was a first time offender. These circumstances justified the lower end of the maximum penalty. In my judgment the learned Magistrate erred when he took into account an element of the offence as an aggravating factor to impose a sentence that is on the higher end of the maximum penalty.

[10] The sentence imposed in the Magistrates' Court is set aside and a sentence of $300.00 fine (in default 3 months imprisonment) and a disqualification from driving for 6 months effective from 8 September 2010 is substituted.

[11] The appeal against sentence is allowed.

Daniel Goundar
Judge

At Labasa
Wednesday 15 December 2010

Solicitors:

Messrs. Maqbool & Company, Lawyers for Appellant
Office of the Director of Public Prosecutions for State