IN THE MAGISTRATE'S COURT AT LAUTOKA

Traffic Case No 5347/08

BETWEEN

THE STATE

AND

AVILASH ROHIT CHAND

SENTENCE

1.	You, Avilash Rohit Chand are to be sentenced upon pleading guilty to refuse to undergo a breath test or breath analysis when required to do so by a police officer contrary to Section 103(1)(b),(2) and 114 of the Land Transport Act No 35 of 1998.

2.	The maximum punishment for this offence is 2000 dollars fine and/or 2 years imprisonment and mandatory disqualification for 3 months to 2 years. But when a person is convicted for a second offence the maximum sentence is 5000 dollars fine and/or 5 years imprisonment and mandatory disqualification for 6 months to 4 years.

3.	It was revealed in this case that you have refused to undergo a breath analysis when you were brought to Lautoka Police Station. You were required by a female police officer to undergo the test. But you have refused to do so. It was revealed that you were driving your taxi in a zigzag manner causing obstruction to oncoming vehicles before you were stopped by the police. You said while giving evidence that you were angry with the officers as you were taken to the police station when you were preparing for your birth day party. You gave evidence in the following manner;

"He smelt the alcohol and told me to get out of the car and to go to the van. I told him this is my birth day and told him I have to be with my family. He said no excuse if you are drunk I have to take you to the Police. ………………

I had a fuss with him. I was loaded in the vehicle and brought to the station. When I was really pissed off I may have said some rude things to the officers."

4.	You admitted that you have 4 previous convictions. You are a taxi driver and it is alarming to note the following are the previous convictions you have;

i)	Dangerous driving

ii)	Fail to submit to breath analysis on the direction of a Police Officer

iii)	Driving a motor vehicle whilst under the influence of drinks and drugs

iv)	Drinking liquor in a public place.

5.	It does not seem that you have learnt a lesson from your previous convictions. The present case is your second offence for failure to undergo a breath test. Specially being a driver of a public transport vehicle you should be more responsible and should be of good behaviour. I am compelled to note, that you have failed to prove yourself fit to be a taxi driver. You are not only risking your life but you are risking the lives of the others as well.

6.	In mitigation you said the following things;

"37 years. Sole breadwinner of the family. Family consists of 6 members. Mother is 65 years. Suffering from arthritis. I have to take her to doctors. My wife stays home. I got 3 kids. Two are in class one. The other one is 18 months. I have to buy milk and diaper every week. The cost of living is very high and very hard to support the needs of my family. My one and only source of income is from driving taxi. I ll be grateful if I don't loose my driving licence. Because I don't have any trade. Driving is my bread and butter. I ask for leniency. I would make sure nothing is repeated like this in near future."

7.	Apart from the personal circumstances, you did not mention any compelling mitigating factors. 

8.	The Sentencing and Penalties Decree sets out the purposes for which a court should impose sentences.

a)	to punish offenders to an extent and in a manner which is just in all the circumstances

b)	to protect the community from offenders

c)	to deter offenders or other persons from committing offences of the same or similar nature

d)	to signify that the court and the community denounce the commission of such offences.

9.	Having considered the facts of this case I pick my starting point as 6 months imprisonment. For the aggravating circumstances of this case I enhance the sentence by 6 months. For the mitigating circumstances I reduce the sentence by 3 months.

10.	Accordingly I impose 9 months imprisonment and suspend it for 5 years. Further I impose a fine of 5 penalty units (500 dollars) and in default 50 days imprisonment.

11.	I disqualify you from driving for 6 months.

28 days to pay the fine/ to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
08.09.2010