Vunivalu v State [2011] FJHC 592; HAA023.2011 (23 September 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 023 OF 2011

BETWEEN:

PETERO VUNIVALU
Appellant

AND:

STATE
Respondent

Mr A. Kohli (on instructions of K. Marawai)
For the Appellant
Mr K. Waqavonovono for State

Date of Hearing: 19th and 21st September, 2011
Date of Judgment: 23 September 2011

JUDGMENT

[1] In the Magistrates Court at Savusavu, the appellant pleaded guilty to one count of Driving a Motor Vehicle without being the holder of a Valid Driving Licence, contrary to section 4(1)(a) (b) of the Land Transport (Driver) Regulations and also to one count of Driving a Motor Vehicle in contravention of third Party Policy Risk, contrary to section 4(1)(2) of the Motor Vehicle Third Party Insurance Act, Cap 177. He was sentenced to a term of imprisonment of eight months . He now appeals that sentence on the ground that it was excessive and inconsistent with similar cases.

[2] The facts admitted by the appellant below were that on the 6th August 2011 between 3pm and 5pm the appellant drove a vehicle registered number ER 199 along the Savusavu Hibiscus Highway towards the Savusavu Airport; all the while having been disqualified from driving by the Labasa Magistrates Court on the 1st August only 5 days earlier. Not being a holder of a Drivers Licence, he was consequently not covered by third party insurance.

[3] The accused told the Court that he is 53 year old businessman age married with one child. Somebody else was driving but he was not a good driver and nearly had an accident. He wanted to save the vehicle and took over driving and asked for forgiveness.

[4] There is no penalty stipulated in the Land Transport (Driver) Regulations and the Magistrate did not purport to pass sentence for that offence. The penalties prescribed for driving without third party insurance is a fine of $400, or imprisonment for a maximum of twelve months or both fine and imprisonment and disqualification from driving for 12 months.

[5] The Magistrate took a starting point of twelve months, increasing that by four months for the aggravating feature of his offending within eleven days of being disqualified by the Labasa Magistracy ( in fact it was only 5 days) and reducing the sentence again by four months to reflect his mitigating features (remorse and co-operation with the Police). The Magistrate deducted a further four months for the guilty plea arriving at the final total of eight months.

[6] The Magistrate was at pains to point out that the sentence was principally a deterrence to further breaches of court orders. This Court agrees with that sentiment.

[7] The appellant had only 5 days previously had his drivers' Licence taken from him, and it could not be said that the passage of time had attenuated his resolve to adhere to the Court's orders. The disqualification and the inconvenience it brings would still have been uppermost in his mind.

[8] Driving without third party insurance is a clear and present danger to all other users of the road. Should there have been an accident at the fault of this appellant and people injured, then no one would have had recourse to insurance monies. Therein lies the seriousness of this offence as envisaged by the Legislature.

[9] The sentence passed below adequately reflects the obvious antipathy the Magistrate felt for the court's orders being so flagrantly breached. Flagrant and arrogant disregard for authority will always be harshly penalized by the Courts and this sentence is no exception.

[10] The appeal against sentence has no merit and the appeal is dismissed.

Paul K. Madigan
JUDGE

At Labasa
23rd September 2011.