State v Ratuwara [2012] FJMC 67; Traffic Case 35.2012 (30 April 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Traffic Case No 35/2012

STATE

V

ASAELI RATUWARA

Prosecution: Corp. Temesi, Police Prosecutor
Accused : In person

SENTENCE

1. You, Asaeli Ratuwara are here today to be sentenced following the admission of 'guilt' in this Court on the 13.04.2012, where you were charged under Section 105(1)(b) read with section 114 of the Land Transport Act No 35 of 1998 (as amended) for 'Breaching of Zero Alcohol Limit' as Count #1.
   
2. For committing an offence under Section 56(3)(a), 56(6) read with Section 114 of the Land Transport Act No 35 of 1998 (as amended) for 'Driving a motor vehicle without a valid driving license' as Count # 2.
   
3. And for committing the offence under Section 4(1) and 4(2) of the Motor Vehicles (Third Party Policy) Insurance Act, Chap 177, for 'Driving a motor vehicle in contravention of the third party policy risk' as Count # 3.
   
4. You waived your right to have a counsel.
   
5. According to the Summary of Facts, on 05.02.2012, around 6.55 am you had been driving the vehicle bearing registration number DV 631, when Cpl 3393 Vaione Koroi stopped you for a random breathalyser test. Since the initial roadside test was proved positive for alcohol, you had been taken to Totogo police station where you had been tested for alcohol.
   
6. The police then found out that you had exceeded the Zero alcohol limit. The 'Drager Alcotest Report' was produced to Court as evidence.
   
7. Further the police found out that you had driven the aforesaid vehicle without a valid license and thereby had committed offences contrary to sections 56(3)(a), 56(6) read with Section 114 of the Land Transport Act No 35 of 1998 (as amended) and Section 4(1) and 4(2) of the Motor Vehicles (Third Party Policy) Insurance Act, Chap 177 .
   
8. The summary of facts was read over explained and you having understood the same admitted it.
   

Count #01

9. According to Section 105(1)(b)(2) of the Land Transport Act, the Maximum Penalty for the offence is $ 2000/2 years imprisonment and a mandatory disqualification for from 03 months to 2 years for a first offender.
   
10. You had driven the vehicle at around 6.55 am which I consider as a busy time of the day. The road traffic at these hours is normally higher than other times. The Court considers this as an 'Aggravating Factor'.
    
11. In 'Mitigation' you informed Court that you are 39 years old; married with 03 school attending children; and wanted Court to be lenient in passing the sentence; first offender; sole breadwinner; expressed remorse and regretted what had happened; promised not to re-offend.
    
12. In view of the above, I impose a fine of FJ $100/in default 10 days imprisonment and mandatorily disqualify you from driving for 03 months for Count# 01.
    

Count # 02

13. According to Section 56(3)(a) and 56(6) of the Land Transport Act read with Section 114 of Land Transport Act No 35 of 1998, the Maximum Penalty for the offence is $200/30 days imprisonment for a first offender.
    
14. In terms of the above aggravating and mitigating factors tendered to Court, I impose a fine of $100, in default of the fine 10 days imprisonment for Count #2.
    

Count # 3

15. Section 4(1) of the Motor Vehicles (Third Party Insurance) Act states that:
    

"no person shall use, or cause or permit any other person to use, a motor vehicle unless there is in force in relation to the use of that motor vehicle by such person or other person, as the case may be such policy of insurance in respect of the third party risks as complies with the provisions of this Act."

Section 4(2) states that:

"Any person acting in contravention of this section is guilty of an offence and shall be liable to a fine not exceeding $400 or to imprisonment for a term not exceeding one year or to both such fine and imprisonment and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification) be disqualified from holding or obtaining a driving licence for a period of 12 months from the date of conviction. "

16. The provisions cited above had been extensively discussed in the case of The Director of Public Prosecutions v Pita Nadralevu [Cri. App. No. HAA0082J.00S].
    
17. In that case it was stated as follows:
    

"The provisions of these sections are clear in their intention. Once a person is convicted of an offence under section 4(2) of the Act, the Magistrate must disqualify him or her for a maximum period of 12 months unless there are special reasons not to.

Clearly the Legislation intends to protect innocent victims from drivers who may be involved in accidents but who have no means to compensate the injured. The Motor Vehicles (Third Party Insurance) Act provides for a system of compulsory third party insurance, and provides for mandatory disqualification if drivers disobey the provisions of the law.

To f the same legislegislative purpose, special reasons are not easy to prove.

In Jones -v- English (1951) 2 ALL ER 853, it was held that the onus of showing special rs, is on the accused.

In the oft-cited case of Whittal -v- Kirby (1946) 2 ALL ER 552, it was held that special reasons were reasons special to the offence and not to the offender, that they were not mitigating circumstances, that they should not amount to a defence in law, and were those considerations which a court ought properly to take into account for the purpose of sentencing.

One example opecialecial reason might be driving in a medical emergency.

Another might be driving on a road used rarely by others (Wilkinsons Road Traffic Offenc> p.664).

>

The good character of the defendant, the hardship he might suffer as a result of the disqualifications, or the fact that he would lose his job, are not special reasons (see Whittal -v- Kirby (supra).

It was held in Rennison -v- Knowler (1947) 1 ALL ER 302, that an honest but mistaken belief that the vehicle was insured, was not a special reason. However where the driver has been misled who believing that the vehicle was insured, special reasons might exist.

The Magistrate disqualified the appellant from driving for twelve months. On appeal Mills-Owen C J said at page 207:

"The authorities.... establish that two matters have to be borne in mind when considering the question of special reasons, namely whether such reasons exist as a matter of law, and if so, but only if so how the discretion of the court should be exercised in the particular circumstances of the case."

His Lordship referred to the decision of the Divisional Court in Knowler -v- Rennison (supra), which held that:

"The question whether on the facts found by the trial court it is open to be held that special reasons exist, is one of law; belief however honest, could not be regarded as a special reason unless based on reasonable grounds."

Mills-Owens C.J. found that although the appellant honestly thought that the vehicle was insured, he had taken no steps to ensure that the management of the firm had been conducted properly in insurance matters, and that as a partner he had an equal responsibility in this respect. The appeal was dismissed."

18. Similarly, in the case before me, I do not see any special circumstances so as not to disqualify the Accused from driving pursuant to a conviction under Sec 4(2) of Motor Vehicle (Third Party Insurance) Act, Chap 177.
    
19. In terms of the afore stated aggravating and mitigating factors tendered to Court, I impose a fine of $100, in default of the fine, 10 days imprisonment for Count# 3.In addition to the above, you are mandatorily disqualified from driving for a period of 03 months from today.
    
20. The period of disqualification for counts #1 and #3 should be concurrent.
    

Conclusion

• Count 01 - fine of $100, in default 10 days imprisonment and mandatorily disqualify you from driving for 03 months.
  
• Count 02 - fine of $100, in default of the fine 10 days imprisonment.
  
• Count 03 - fine of $100, in default of the fine, 10 days imprisonment. In addition, you are mandatorily disqualified from driving for a period of 03 months. The disqualification period for 1st and 3rd counts will run concurrently.
  

21. 28 days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate

30th April 2012