State v Kumar [2011] FJMC 33; Traffic 3388.2007 (27 January 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Case No 3388/07

BETWEEN

THE STATE

AND

SHIU KUMAR

SENTENCE

1. You, Shiu Kumar are to be sentenced upon pleading guilty to the charge of Disobedience of lawful orders contrary to section 144 of the Penal Code.
   
2. The maximum punishment for this offence is 2 years imprisonment.
   
3. It was revealed that on the 11th September 2007 you were convicted and sentenced for driving a motor vehicle whilst there was present in the blood a concentration of alcohol in excess of the prescribed limit. Apart from a fine imposed on you, the court had disqualified you from holding or obtaining driving licence for three months.
   
4. On the 4th October 2007 a Police officer noticed that you were driving private car registration number 080A on Namoli Avenue. The Police Officer followed and intercepted you at BP Service Station. You had surrendered your driving licence to court which was expired on the 20th September 2007. Later you renewed the driving licence which now expires on 20th September 2011.
   
5. Initially you were charged on 04th October 2007 for driving without a valid driving licence and for driving when not covered under the insurance of third party policy risk. However subsequently the charges have been amended and you were charged for disobedience of lawful orders on the 07th October 2008.
   
6. It appears that you disregarded the orders made by the Court by driving a motor vehicle during the period you were disqualified from holding or obtaining a licence. Disqualification of licence is a mandatory penalty in cases of driving with excess alcohol in the blood. If persons disregard the orders made by Courts involving disqualifying of licences, the purpose of imposing such penalties would be of no use. The law expects that the members of the society would abide by and respect the orders made by Courts. If every body starts to contravene orders made by Courts, it would create nothing but chaos in a society. Thus the court has to take cognizance of this kind of actions in a serious manner.
   
7. The main purpose of disqualifying persons from driving is to deter the offenders and the others from committing traffic offences of serious nature. Disqualification is a mandatory requirement in cases of driving under the influence of liquor. It appears that if persons who are convicted and disqualified to drive ignore such orders it could pave the way for the break down of the whole system. These kinds of actions have to be nipped in the bud before it gets out of proportion.
   
8. Having taken into account the seriousness of the offence I decide to pick my starting point as 5 months.
   
9. You are not a poor and illiterate peasant from a remote village. You said you are involved in a car business as a branch manager. I have observed that you are a person at least with a minimum intelligence level who could understand the seriousness of a Court order. One should not be allowed bring down the criminal administration of justice system to a mockery. You committed this offence consequent to the commission of another offence. It does not seem that you learnt a lesson from your mistakes. Instead it appears that you ignored the lawful orders made by the Court and continued to violate them.
   
10. In mitigation you said that you are a law abiding citizen. You said sorry for what you did. You said you are the sole breadwinner and you have a child and a grand child. You said several times that you were only told by the Court not to obtain and hold a licence. You said if the court told you not to obtain, hold and drive, you would not have driven.
    
11. It appears that you still try to circumvent the law by giving snobbish explanations. As a person who deals with motor vehicles you must know that one must hold a driving licence to drive a vehicle.
    
12. Be that as it may, for the aggravating circumstances in this case I enhance the sentence by 1 month. For the mitigating circumstances I reduce your sentence by 3 months.
    
13. You admitted that you have one previous conviction. Your guilty plea cannot be considered as a timely plea as you decided to plead guilty after three years when the case was set for hearing. However, since the sentence I have now arrived at, is less than two years it has to be considered whether it is appropriate to suspend your sentence.
    
14. I am of the view that in this case the sentence should reflect at least the following three purposes out of the purposes of sentencing set out in section 4 of the Sentencing and Penalties Decree;
    
    1. to punish the offender to an extent and in a manner which is just in all the circumstances
       
    2. to deter the offender or other persons from committing offences of the same or similar nature
       
    100. to signify that the court and the community denounce the commission of such offences.
         
15. With the above purposes borne in mind, I decide to partially suspend your sentence under section 26 of the Sentencing and Penalties Decree having taken into consideration your mitigation and specially your age.
    
16. I impose 3 months imprisonment on you and I suspend two months of your sentence for three years. Accordingly you should serve an imprisonment of one month.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.

27.01.2011