Kasanawaqa v State [1991] FJLawRp 7; [1991] 37 FLR 70 (5 July 1991)

[1991] 37 FLR 70

HIGH COURT OF FIJI

VILIAME KASANAWAQA

v

STATE

[HIGH COURT, 1991 (Jesuratnam J), 5 July]

Appellate Jurisdiction

Sentence - causing death by dangerous driving - whether immediate imprisonment appropriate.

The appellant had caused the death of one person and injured 2 others. He pleaded guilty and was sentenced to 12 months imprisonment. Partly allowing the appeal and reducing the term of the sentence of imprisonment the High Court warned that imprisonment was to be expected in such cases where appropriate.

Cases cited:
Boswell & Ors (1984) 6 Cr. App. R (s) 287
Sefanaia Marau v The State (Cr. App. No. 79 of 1990)

Appeal against sentence imposed in the Magistrates' Court.

Jaswant Singh for the appellant
S. Senaratne for the respondent

Jesuratnam J:

In this case the appellant was charged with having on the 16th day of August 1990 driven a motor vehicle on Wainibokasi Road at Vunimono in a manner which was dangerous to the public having regard to all the circumstances of the case and caused the death of Bijendra Lal s/o Shyam Sundar of Nadali/ Nausori contrary to section 238(1) of the Penal Code.

The appellant pleaded guilty and was convicted and sentenced to 12 months' imprisonment and disqualified from driving for a period of 2 years. He has appealed against his conviction and sentence.

Mr. Jaswant Singh, who appeared for the appellant, did not press the appeal against conviction as the appellant had unequivocally pleaded guilty.

There seems to be an impression that causing death by a motorist should not be punished with immediate imprisonment. In fact learned senior State Counsel, Ms. Shameem, who appeared for the respondent at the hearing of the appellant's application for bail did not object to bail pending the hearing of the appeal. She openly expressed the view that an offence of this nature committed by a first offender does not call for an immediate custodial sentence. While this court certainly gives the most anxious consideration to the views expressed by the D.P.P. on all criminal and quasi-criminal matters it is not only guided by those views. However there was a rift in the lute when another State counsel, Mr. Senaratne, who appeared at the hearing of the appeal, vigorously defended the sentence as being fit and proper. It seems to me that this difference of opinion in the D.P.P.’s office is symptomatic of doubts in the public mind regarding the certainty of immediate prison sentences for this type of offence which hitherto seem to have been the exception than the rule.

It seems to me that it is now time for the public to expect an immediate custodial sentence in cases of causing death by reckless and dangerous driving in appropriate cases. The annual toll of deaths on the roads caused by motorists is steadily rising year by year to dangerous proportions.

If first offenders are granted automatic immunity in such offences it would amount to the grant of a licence to the vast majority of motorists who have never committed offences in the past to indulge in dangerous driving and causing the death of innocent victims.

Deterrence should therefore be an important consideration in sentencing in such cases. This court has already sounded a note of warning in this direction in the case of Sefanaia Marau v. The State (criminal appeal no. 79 of 1990), Fatiaki J. said

"It is clearly time that our courts treated such offences and offenders with the seriousness that the legislature intended them to be regarded and also to reflect the concern of the general public about these matters."

Even in the past causing death by dangerous driving has been visited with sentences of imprisonment in some instances. In the Sefanaia case this court considered that a short custodial sentence was appropriate but decided to suspend it in view of other attendant circumstances including the release of the appellant on bail by the magistrate which may have engendered in the appellant hopes of receiving a non-custodial sentence on appeal.

In Boswell and Others (1984) 6 Criminal Appeal Reports (Sentencing series) p. 287 the Lord Chief Justice of England said as follows:-

"It is a trite observation, and I make no apologies for making it, that the motor car is a potentially lethal instrument. Any driver who fails to realise that what he is doing at the wheel is creating a risk when to any ordinary person such risk would be obvious, or even worse, sees the risk and nevertheless takes a chance on avoiding disaster and so kills, is prima facie deserving of severe punishment. In our view such punishment should in many cases involve immediate loss of liberty."

His Lordship went on to set guidelines for sentencing in such cases.

The aggravating factors and mitigating factors have been set out there. However it should be pointed out that these instances refer to sample situations. They should not be regarded as exhaustive literally. There may be situations analogous to those enumerated. It is therefore wrong to argue, as did counsel for the appellant, that one is not present, the other is present and so on. A guideline is an indicator, not a comprehensive definition.

In the instant case, for instance all three pedestrians were thrown into the drain and rendered unconscious although only one died. It was a matter of chance that the other two did not die. It is therefore idle to point out to aggravating factor number 7 mentioned by Lord Chief Justice Lane and say "This is not it. Here several people have not been killed." It is the analogous situation that matters not the incidental result.

The appellant was driving his vehicle at a high speed. His act of overtaking a taxi which itself was overtaking another parked taxi required deliberate acceleration. It was therefore furthest from a case of "momentary inattention". It is my view that an immediate custodial sentence was well merited in the instant case.

However there are some mitigatory features which require a second look at the length of the custodial sentence. The appellant had readily and promptly stopped and taken the victims to hospital showing concern and remorse.

The accident occurred at about 7 a.m. and there does not appear to have been much traffic on the road. The high speed at which the vehicle was driven cannot therefore by itself be regarded as the cause of the accident. I also take into account the good character of the appellant and his prompt plea of guilt.

Taking into consideration all the circumstances of the case I set aside the sentence of 12 months' imprisonment and substitute therefore a sentence of 3 months' imprisonment which, with the usual remission, will have entitled the appellant for release from prison on 17th June 1991.

As I have already granted bail to the appellant on the 19th June 1991 he need not now go back to prison.

So far as the period of disqualification for 2 years is concerned I do not think there are any grounds for me to interfere with the discretion exercised by the learned magistrate. It will remain. The appellant's appeal against sentence succeeds to this extent.

(Appeal partly allowed; sentence varied)