State v Muloilagi [2010] FJHC 85; HAR002.2010 (12 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

Revisional Case No: HAR002 of 2010

BETWEEN:

THE STATE
Applicant

AND:

TEVITA TOLOI MULOILAGI
Respondent

Hearing: 26th February 2010
Judgment: 12th March 2010

Counsel: Ms S. Puamau for State
Respondent in person

JUDGMENT

[1] This case was called for a review of the proceedings in the Magistrates’ Court after a media article on the proceedings gave an impression that the respondent escaped punishment for an offence of driving whilst intoxicated because of his status as a prosecutor at the Office of the Director of Public Prosecutions.

Facts

[2] On 15 January 2010 at about 2.40am, the respondent drove a motor vehicle when he was stopped at Gordon Street, Suva, for a random breathalyzer test. The test revealed that the respondent had 68 microgrammes of alcohol present in 100 millilitres of breath. He was arrested and taken to the Nabua Police Station where he was tested again. The second test confirmed the earlier result. The result was converted and the respondent was found to have 134.2 milligrammes of alcohol present in 100 millilitres of blood, which was in excess of 54.2 milligrammes over the prescribed limit of 80 milligrammes. The respondent was locked up in a cell and later interviewed under caution and formally charged under sections 103(1)(a) and 114 of the Land Transport Act, No. 35 of 1998. He appeared in the court on the same morning. Upon arraignment, he pleaded guilty and was convicted of the offence.

[3] In mitigation, the respondent apologized for his conduct and informed the learned Magistrate that he was a State counsel. He said a conviction will affect his employment and that he be given a warning, and not a fine.

[4] The learned Magistrate considered the mitigation and decided not to impose a fine or imprisonment on the respondent. Instead, the learned Magistrate imposed a disqualification from driving for four months as a token of punishment. The brief sentencing remarks of the learned Magistrate reads:

"Since Accused is a DPP Officer, before passing one Sentence I have to consider the consequences he has to pay at his work place. Accused is a first offender. He pleaded guilty at the first available instance. Bearing everything in my mind, I think Accused should be given a chance to correct himself. Therefore I will not impose any fine or sentence him to an imprisonment. But as a token punishment, I proceed to disqualify his driving licence for four (04) months."

Review

[5] In fairness to the learned Magistrate, the reference to the status of the respondent as a DPP’s officer was made in the context of assessing the consequences of a sentence on his employment. The learned Magistrate in her mind did not think that the respondent should be completely absolved from punishment because of his status as a State counsel. The final sentencing remark confirms this view.

[6] However, the matter does not rest there. On the same morning, the learned Magistrate imposed a fine in two other cases where the offenders were convicted of the same offence that the respondent was convicted of. The other two offenders also held professional positions, albeit, in the private sector. One was an accountant and the other was a human resource officer.

[7] In addition to a disqualification from driving, a fine of $200 in default two months imprisonment, respectively, was imposed on them, while in the case of the respondent only a disqualification was imposed.

[8] It is the disparity in the sentences that give an impression that the respondent was given a favourable treatment because of his status as a DPP’s officer.

[9] A review is therefore justified to clear any such perception. It should be made clear that an offender’s position in the society is irrelevant when it comes to imposing punishment for breaking a law. In this regard I adopt the principle articulated by Lord Chief Justice Hewart in R v. Sussex Justices Ex parte Macarthy [1923] EWHC KB 1; [1924] 1 KB 256 at 259:

"It is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

[10] When imposing sentences on offenders, the court is bound by the principles of fairness and equality before the law. Everybody is equal before the law. The appearance of justice and even-handedness is important. An offender should not be given a lenient punishment over the others just because he or she holds a special position in the society. Sentences should be imposed even handedly, particularly, when the offenders have committed the same offence.

[11] It is rather unfortunate that the learned Magistrate has, inadvertently, given an impression that the respondent was to be treated differently because he was a State counsel.

[12] Ms Puamau for the State, while accepting that there is a disparity in sentences, quite fairly points out that the respondent’s personal circumstances changed following his conviction, that may have a bearing on any decision to impose a further punishment on him. It has been brought to the attention of this Court that the respondent was terminated from his employment and that he now is unemployed.

[13] I have no doubt that the consequences of the conviction have significantly affected the respondent. He was terminated from his employment in the public service as a State counsel and his chances of securing another employment are slim. This in itself is a grave form of punishment. When compared to the other two offenders, who did not lose their jobs, the consequences of the conviction on the respondent are disproportionate.

[14] In these circumstances, it would be unjust and inappropriate to impose a fine or imprisonment on the respondent on a review.

[15] The respondent invites the Court to quash his conviction because of the impact it is having on his employment prospects. I do not consider it appropriate to quash the conviction of the respondent for the reason advanced by him. The offence committed by the respondent was not a technical breach of the law. He was caught operating a motor vehicle when he had an alcohol level in his blood that was way above the prescribed limit. He placed the safety of other road users at risk when he drove his vehicle whilst being drunk. He is morally responsible for his conduct.

[16] The carnage on the Fiji roads arising from driving whilst intoxicated is a matter that has recently attracted a lot of public debate. The court cannot comprise public safety on the roads. As a matter of observation, the fines imposed on the other two offenders are lenient. But since the State has not seen fit to appeal the sentences, I do not consider it is appropriate to review those fines of my own motion. The responsibility to appeal inappropriate sentences lie with the State.

Result

[17] For these reasons, I confirm the conviction of the respondent and the order disqualifying him from driving. There will be no fine or imprisonment imposed on the respondent.

Daniel Goundar
JUDGE

At Suva
12th March 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Respondent in person