State v Lal [2013] FJMC 38; Traffic Case440.2009 (25 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF NAVUA

Traffic Case No: - 440/2009

STATE

V

SAILESH SATEN LAL

For Prosecution : - Mr. Niudamu for DPP
Accused : - Mr. Samad

SENTENCE

1. SAILESH SATEN LAL, you were found guilty and convicted by this Court for Dangerous Driving occasioning Death contrary to section 97(2) (c) and 114 of the LTA Act.
   
2. Both parties filed their written submissions with regard to the sentence and I have considered them carefully.
   

LAW AND TARIFF

3. Section 114 of the LTA Act prescribed minimum penalty for this offence is fine of $1000 and disqualification for 06 months and the maximum sentence is a $10,000/ 10 year imprisonments and disqualification up to life.
   
4. In Iowane Waqairatavo v The State, Criminal appeal No HAA 127 of 2004 her Ladyship Justice Shameem stated; "A starting point should be picked from between 2 years and 4 years imprisonment, depending on the gravity of the offending".
   
5. In State v Narayan [2009] FJHC 34; Madam Shameem further noted that "the starting point must be picked according to the manner of driving. If a driver drove badly and with a selfish disregard for human life over a long stretch of road, he or she must expect a starting point at the higher end of the tariff. Cases of momentary carelessness will lead to a lower starting point".
   
6. It was revealed in the hearing that you were traveling in high speed for a long distance before this accident and even the highway patrol could not catch you. Therefore I will take 03 years imprisonment, higher end of the tariff as the starting point for your sentence.
   

Aggravating factors

7. The following will be considered as aggravating factors in this case.
   
   1. The accused is a public Service Driver and his driving conduct is inconsistent with how a Public Service Driver should be.
      
   2. Even after the accident the accused did not stop his vehicle and the police had to stop the bus.
      
   100. The victim was 09 years old class 4 student.
        
8. For the above aggravating factors I increase your sentence by 01 year to reach 04 years imprisonment.
   

Mitigating Factors

9. Learned counsel on behalf of you has submitted a mitigation submission to this Court. From that I noted the following grounds.
   
   1. Married with 02 children and sole bread winner.
   2. Seeking forgiveness from this Court.
   3. First offender.
      
10. For the above mitigating factors this Court deducts 02 years from your sentence to reach 02 years.
    
11. I am mindful that under section 26(2) (b) of the Sentencing and Penalties Decree I can suspend a sentence which does not exceed 02 years.
    
12. In Iowane Waqairatavo v The State, Criminal appeal No HAA 127 of 2004 her Ladyship Justice Shameem again stated; " a non custodial sentence for this offence must be the exception rather than the rule".
    
13. I believe this Court has to send a strong message to the society as well as vehicle drivers that it will not tolerate this kind of incidents. This was not caused by moment of inattention which could have entitled for non custodial sentence. At the time of the accident you were an experienced driver with a 13 years driving experience.
    
14. Also according to the facts in this case you were driving in high speed for a long distance and because of your action a small girl had to pay from her life. Therefore your sentence should reflect that the Court denounces such behavior as well as deter others from driving like this manner. Therefore I do not see any reason to fully suspend your sentence.
    
15. On the other hand I note that you are a first offender and sole breadwinner of your family. You have got 02 children who need your care. This Court is mindful the hardships that would be faced by your family if a full custodial sentence is given to you.
    
16. Therefore your sentence would be partly suspended. You would be sentenced to 14 months imprisonment and remaining 10 months will be suspended for 02 years.
    
17. If you commit any offence during the operational period of your suspended sentence you can be charged under section 28 of the Sentencing and Penalties Decree.
    
18. Also you are disqualified from driving for 06 months from today.
    
19. 28 days to appeal.
    

25/01/2013

H.S.P.Somaratne
Resident Magistrate, Navua