State v Sahai [2017] FJHC 634; HAR002.2017 (29 August 2017)

IN THE HIGH COURT OF FIJI AT SUVA
In the matter of a revision under section 260(2) of the Criminal Procedure Act 2009.

STATE

Vs.

JOEL SAHAI
CASE NO: HAR. 002 of 2017

[MC Suva, Traffic Case No. 466 of 2016]

Counsel : Mr. E. Samisoni for State
Defendant in person

Date of Judgment : 29^th August, 2017

JUDGMENT

1. Mr. Joel Sahai (hereinafter referred to as "the defendant") was convicted upon his guilty plea and sentenced on 25^th April 2017 for the following offence;

Statement of Offence

DRIVING A MOTOR VEHICLE WHILST THERE IS PRESENT IN THE BLOOD A CONCENTRATION OF ALCOHOL IN EXCESS OF THE PRESCRIBED LIMIT: contrary to section 103(1)(a) and 114 of the Land Transport Act, No. 35 of 1998.

Particulars of Offence

JOEL SAHAI on the 9^th day of December, 2016 at Suva in the Central Division, drove a motor vehicle registration number FP 676 along Rewa Street, Samabula whilst there was present in 100 millilitres of his blood a concentration of 90.2 milligrams of alcohol, which was in access of the prescribed limit.

2. The Learned Magistrate imposed a fine of $600 and ordered 5 demerit points against the defendant’s driving licence.
   
3. The relevant record of the proceedings before the magistrate court was called for the purpose of examining same in terms of section 260(1) of the Criminal Procedure Act as per the request in that regard received under the hand of the Hon. Chief Justice according to the provisions of section 260(2) of the Criminal Procedure Act.
   
4. Both parties have filed written submissions at the instance of this court. The State submits that it is mandatory to disqualify a driver who is convicted of an offence under section 103(1)(a) of the Land Transport Act 1998 (“LTA Act”) from driving any motor vehicle from a period of 3 months up to a period of 2 years according to the prescribed penalty provided under section 114 of the LTA Act.
   
5. The defendant does not dispute the fact that disqualification from driving any motor vehicle is a mandatory penalty for the offence he is convicted of.
   
6. Section 114 of the LTA Act reads thus;

Prescribed penalties

(1) The penalties prescribed in the third column of the Schedule are prescribed as the maximum penalties for offences against the sections of the Act respectively mentioned.

(2) Where the prescribed penalty is shown by "$..../..... months" or similar, the court may impose a fine up to the maximum amount shown or a term of imprisonment up to the maximum period shown or both such fine and such imprisonment.

(3) Where the prescribed penalty includes disqualification, subsections (2) and (3) of section 59 apply.

(4) Where the prescribed penalty includes demerit points, subsections (2) and (3) of section 88 apply.

7. According to the relevant schedule provided under section 114, the prescribed penalty for the offence under section 103(1)(a) is;
   • (a) First offence - $2,000/ 2 years and mandatory disqualification for from 3 months to 2 years
   • (b) Second offence - $5,000/ 5 years and mandatory disqualification for from 6 months to 4 years.
   • (c) Offence if 2 or more convictions for similar offence within the 5 years preceding the offence is $10,000/ 10 years and mandatory disqualification for from 12 months to 5 years
     
8. Section 114(2) provides that sections 59(2) and 59(3) apply where the prescribed penalty includes disqualification. Sections 59(2) and 59(3) of the LTA Act reads thus;
   

(2) Unless disqualification is mandatory, if a person is convicted of an offence for which disqualification is part of the prescribed penalty, the court may, if sufficient reason shown, disqualify the person for a shorter period than that prescribed, or decide not to disqualify the person, and must specify the reason.

(3) Whenever a person is convicted of an offence for which disqualification is part of the prescribed penalty, the court may award up to 3 demerit points against the person, if it does not disqualify the person.

9. Given the above provisions in the LTA Act, it is manifestly clear that disqualification is a mandatory penalty for the offence under section 103(1)(a) of the LTA Act and a sentencing court does not have a discretion to refrain from imposing a disqualification under any circumstances. According to the LTA Act, 'disqualification' means disqualification from holding or obtaining a driver's licence.
   
10. The failure of the Learned Magistrate to disqualify the defendant in this case from holding or obtaining a driver's licence therefore amounts to an error of law. This is a significant error on the face of the record. In the circumstances, I am of the view that this is an appropriate case for this court to invoke its revisionary jurisdiction in order to substitute the sentence imposed by the Learned Magistrate with a sentence warranted by law.
    
11. Under section 262(2) of the Criminal Procedure Act, it is required for an accused to be heard before any order is made to the prejudice of that accused by a court exercising revisionary jurisdiction. Accordingly, the defendant was given the opportunity make submissions. The defendant had filed written submissions where he does not dispute that disqualification is a mandatory penalty for the offence he is convicted of. However, he requests this court to consider suspending his driver’s licence from 6.00pm to 6.00am daily for any period of time.
    
12. In terms of the provisions of section 59(2) of the LTA Act alluded to above, a sentencing court cannot disqualify the person for a shorter period than that is prescribed, if the disqualification is mandatory. A suspension of the licence only for a certain period of the day during the disqualification period can be viewed as shortening that disqualification period. For the first offence under section 103(1)(a) of the LTA Act it is mandatory to disqualify the person convicted for a minimum period of 3 months. Moreover, as mentioned above, ‘disqualification’ under the LTA Act means disqualification from holding or obtaining a driver's licence. A person who is so disqualified cannot hold a driver’s licence throughout the disqualification period. Therefore, in my view, the LTA Act does not allow a sentencing court to suspend a driver’s licence only for a certain period during the day when imposing a disqualification.
    
13. Now I turn to determine the appropriate penalty for the defendant. According to the material available in the case record, the defendant is a first offender. Therefore the applicable penalty in this case is a fine up to $2000 and/ or an imprisonment up to 2 years; and mandatory disqualification for from 3 months to 2 years.
    
14. No issues were raised by the parties with regard to the fine imposed by the Learned Magistrate. I find that the fine of $600 imposed by the Learned Magistrate is appropriate considering the circumstances of this case.
    
15. According to the applicable prescribed penalty, the defendant should be disqualified from holding or obtaining a driver’s licence for a period from 3 months to 2 years.
    
16. In the case of State v Prasad [2003] FJHC 146; HAA0038J.2003S (16 October 2003), the Learned High Court Judge listed the following as factors to be taken into account in deciding the length of disqualification;
    1. The standard of driving shown in the offending.
    2. Any previous convictions for traffic offences.
    100. The need to protect the public from dangerous/careless/drunk drivers.
    4. Good character.
    5. Serious hardship to the family.
    6. Driving providing the source of livelihood for the offender.
       
17. It is pertinent to note that the Learned Magistrate had considered the fact that the defendant was working as a Referee of the small claims tribunal as an aggravating factor. I cannot agree that this is an aggravating factor. In my view, the position held by an accused at the time of offending can be considered as an aggravating factor for the purpose of sentencing only if the accused used the relevant privileged or the trusted position in any manner to commit the offence.
    
18. In my opinion, the only aggravating factor revealed in the summary of facts is the concentration of alcohol that was present in the blood above the prescribed limit. The prescribed limit of alcohol concentration as provided in the Land Transport (Breath Tests and Analyses) Regulations 2000 is 80 milligrams of alcohol in 100 millilitres of blood. The alcohol concentration found in the defendant’s blood was 90.2 milligrams in 100 millilitres.
    
19. Considering all the circumstances, including the fact that the defendant was a first offender; that he is the only person in the family with a driver’s licence; and the fact that he had taken responsibility for his actions by pleading guilty, I am of the view that it is appropriate to disqualify the defendant from holding or obtaining a driver’s licence for the minimum period prescribed for the relevant offence which is 3 months.
    
20. In the circumstances, I would exercise the jurisdiction of this court under section 262(1) of the Criminal Procedure Act to vary the penalty imposed by the Learned Magistrate against the defendant by imposing a disqualification from driving or holding a driver’s licence for a period of 3 months.
    

Orders of the court;

1. The defendant is disqualified from driving or holding a driver’s licence for a period of 3 months effective from today;
2. The order awarding 5 demerit points against the defendant in lieu of disqualification is set aside;
3. The sentence imposed in Magistrate Court Suva Traffic Case No. 466 of 2016 on 25^th April 2017 is accordingly varied.
   

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Defendant in person.