State v Tuivomo [2012] FJMC 254; Traffic Case 2544.2007 (14 August 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 2544/07

BETWEEN

THE STATE

AND

PENIASI TUIVOMO

SENTENCE

1. You, Peniasi Tuivomo are to be sentenced upon being found guilty to two counts of occasioning death by dangerous driving contrary to Section 97(2)(c) and 114 of the Land Transport Act No 35 of 1998.
   
2. The minimum sentence prescribed for this offence is a fine of 1000 dollars and disqualification for 6 months and the maximum sentence is a fine of 10,000 dollars or 10 years imprisonment and disqualification for any period up to life.
   
3. It was revealed during the trial that on the 27th July 2007 you drove the vehicle registration number DG 618 in a dangerous manner and collided with another vehicle, whereby you caused the death of two persons namely Marica Vunibaka and Mohammed Efim. On the said date a Police Officer advised you not to drive your vehicle as you were suspected to have been under the influence of liquor. Despite the warning you drove off the vehicle with Marica Vunibaka as a passenger in your car. The Police Officer gave a pursuit with the assistance of some military officers. You drove your vehicle at an excessive speed and did not comply with the orders by the Police Officer to stop the vehicle during the chase. In the process you collided with another oncoming vehicle and caused the death of the passenger in your vehicle as well as a passenger in the oncoming vehicle. You were convicted for the two counts after the trial.
   
4. I have seen the following aggravating factors in this case;
   
   1. You disregarded the warning of a Police Officer and escaped from lawful arrest for suspected drunken driving.
   2. The accident occurred when you tried to flee.
   3. Two lives were lost.
      
5. In mitigation your Counsel tendered written submissions. Accordingly you are 50 years and married with five children. Four of your children are married and the youngest is a University student. You are the sole breadwinner in the family. It was informed that you are remorseful of what happened and you have realized that nothing can be done to bring back the life of those lost. It was also informed that you wish to sincerely apologise to the families of those lost. It is further stated in the written mitigation that; "the case had been over his head for over five years and it was like a punishment over him already and where he also had spent quite a substantial amount of money over the years in coming to Court and on legal fees. But that in no way we submit is a substitute for the wrong he had been guilty of."Your counsel asked for leniency and for a non custodial sentence.
   
6. You are a first offender.
   
7. In Iowane Waqairatavo V. The State, Criminal Appeal No HAA 127 of 2004 Justice Shameem stated;
   

"The tariff for the offence of causing death by dangerous driving under the Penal Code was 9 months to 2 years imprisonment. The maximum sentence under the Penal Code is 5 years imprisonment. However the offence under the Land Transport Act has a maximum penalty of 10 years imprisonment with a minimum fine of $ 1000. Clearly it was the intention of the legislature to increase the tariff for causing death offences. Presumably this is to reflect the alarming numbers of road deaths in Fiji.

Accordingly therefore, a non custodial sentence for this offence must be the exception rather than the rule. Indeed, a starting point should be picked from between 2 years and 4 years imprisonment, depending on the gravity of the offending. The gravity of the offending is to be assessed on circumstances such as the number of deaths, and the seriousness of the fault, which led to the offending."

8. Accordingly I pick 2 years for each count. For the aggravatory factors I enhance the sentences by 12 months. For the mitigatory factors I reduce the sentence by 12 months.
   
9. It should be noted that this is not a case where a driver merely loosing control and causing an accident. This unfortunate incident could have been avoided if you have listened to the advice of the Police officer. You have not only disregarded lawful orders but also caused the loss of two lives due to your uppish and irresponsible behaviour. Further the Court is mindful that the road deaths in Fiji are escalating due to careless drivers. Justice Shameem in Iowane Waqairatavo case stated that "deaths on our roads have led to untold suffering for the families of the deceased. Children have lost parents, siblings and relatives in road deaths which could have been avoided had the driver exercised a little care."
   
10. I do not think that the circumstances of this case warrant a non custodial sentence to be imposed on you. In the circumstances I impose 2 years imprisonment for the first count and 2 years imprisonment for the second count. However having considered your personal circumstances I order the both sentences to run concurrently. You are eligible for parole after 18 months.
    
11. Further I disqualify you from driving or holding a driving licence for one year for each first and second count. Thus the total period of disqualification is two years.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

14.08.2012