State v Fimone [2014] FJMC 108; Trafiic Case 4140.2014 (16 June 2014)

IN THE RESIDENT MAGISTRATES COURT
AT NASINU

TRAFFIC CASE NO.: 4140 OF 2014

STATE

v

WARRICK SAMUEL FIMONE

For Prosecution: Sgt. Kalisito
For Accused: Ms. Vaniqi

SENTENCE

"WARRICK" you appear for Sentence in this Court after pleading guilty to the following charges,

Count 1

Statement of Offence

BREACH OF ZERO ALCOHOL LIMIT: Contrary to Section 105 (1) (b) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence

WARRICK SAMUEL FIMONE on the 27th day of February 2014 at Nasinu in the Central Division being the holder of a Provisional driving license drove a motor vehicle trade number 379A on Nawanawa Road whilst there was present in 100 milliliters of his blood a concentration of 165 milligrams of alcohol which was in excess of the prescribed limit.

Count 2

Statement of Offence

DANGEROUS DRIVING: Contrary to Section 98 (1) and 114 of Land Transport Act 35 of 1998.

Particulars of Offence

WARRICK SAMUEL FIMONE on the 27th day of February 2014 at Nasinu in the Central Division drove a motor vehicle trade number 379A on Nawanawa Road in a manner which was dangerous to the public having regards to all circumstances of the case.

Count 3

Statement of Offence

USE OF VEHICLE WITHOUT THE OWNERS PERMISSION: Contrary to Section 100 (1) and 114 of the Land Transport Act 35 of 1998.

Particulars of Offence

WARRICK SAMUEL FIMONE on the 27th day of February 2014 at Nasinu in the Central Division takes and drives away a private motor vehicle trade number 379A without having consent of the owner Rajesh Lal.

I am satisfied that your plea is "unequivocal" and that you understand the consequences of your plea.

The summary of facts submitted to court by the prosecution is reproduced below:

"(Accused) Warrick Samuel Fimone, 21yrs, Mechanic of Lot 47, Nawanawa Road, Nadera. (PW-1) Jitendra Prasad, 40yrs, Police Officer of Caubati Road. (PW-2) IP Cavusikoa, 50yrs, Police Officer of 47 Kula Street, Samabula. (PW-3) WPC 3748 Atishna, 29yrs Police Officer of Valelevu Police Barrack. (PW-4) PC 4660 Nemani, Police Officer of Moli Place, Khalsa Road. (PW-5) Joseva Raboili, 42yrs Vehicle Examiner of Wainibokasi Road. (PW-6) Rajesh Lal, 55yrs, Company Director of Lot 2 Tovata, Makoi.

On the 27th day of February, 2014 at about 1800hrs (Accused) drove private motor vehicle trade number 379A along Nawanawa Road and the said vehicle went off the road and tumbled. The matter was reported at Valelevu Police Station and (PW-1) visited the scene of accident and drew a rough sketch plan. At the scene of accident (PW-1) smelt liquor from (Accused) breath. (PW-1) arrested the (Accused) and escorted him to Nabua Police Station for breath analysis test. (PW-2) tested the (Accused) at Nabua Police Station in alcotest 7110 machine and the result showed that there was present in 100 milliliters of (Accused) blood a concentration of 165 milligrams of alcohol which is equivalent to 75 micrograms of alcohol per 100 milliliters of breath. (Accused) was later interviewed under caution by (PW-3) and was formally charged by (PW-4). The vehicle was examined by (PW-5) at Land Transport Authority, Valelevu. (Accused) is a holder of Provisional driving license and he drove the said vehicle without permission of (PW-6)."

"WARRICK" the above mentioned summary of facts was read over to you by the prosecution in open court. You admitted the summary of facts.

Aggravating Factors

(1) You were incapable of having proper control of the vehicle due to intoxication.

(2) You were driving the vehicle under the influence of liquor and created a situation which is manifesting dangerous to the road users.

(3) You were driving a vehicle under the influence of liquor and could have caused injuries to the road users.

Mitigating Factors

(1) You are a first offender.

(2) You co-operated with the police at the caution interview.

(3) You pleaded guilty to the charges and thereby saved Court's time and resources.

(4) You are remorseful for your actions and deeds.

(5) You tendered an apology to Court.

(6) You spent four days in remand for this case.

(7) You apologized to the owner of the vehicle.

Personal Circumstances

• You are aged 21.
• You are a mechanic by the occupation.
• You earn $280.00 per week.
  

The first count is "Breach of Zero Alcohol Limit" contrary to section 105(1) ( B ) and 114 of the "Land Transport Act 35 of 1998".

The prescribed sentence for this offence is "$2000/2 years and mandatory disqualification from 03 months to 2 years. (First offence).

The Sentence is same as under Section 103(1)(a) of the Land Transport Act.

The prescribed penalty for driving with excess alcohol [S103(1)(a)] specifically states in the column "Mandatory disqualification" for first, second or further offences.

The minimum mandatory term of disqualification (on first conviction) is 3 months. The Magistrate has discretion to impose more than 3 months but not impose less. ["The State vs Kameli Ratuvou "Crim. App. HAA 0060 of 2002].

The intention of the legislature in prescribing a "minimum mandatory disqualification" is the need to protect the public from dangerous/careless/drunk drivers.

The length of the disqualification depends on the following grounds;

1. The standard of driving shown in the offending
2. Any previous conviction for Traffic offences
3. Good character
4. Serious hardships to the family
5. The need to protect the public
   

Please see in this regard;

∗ The State vs Jitesh Prasad Crim. App. HAA 038 of 2003S
∗ Rex vs Thomas 78 Cr. App. 44
∗ Rex vs Hart (70) RTR 165
∗ Reynolds vs Roche (72) RTR 252

I note that the accused is a person of good character with no previous convictions for traffic offences in his driving history. He is a mechanic by the occupation. Hence, driving a vehicle does not provide a source of livelihood to the accused. I also note the standard of driving shown in the offending. I also note the need to protect the public from careless/dangerous/drunk drivers.

After giving due consideration to the above guidelines, I sentence you for the first count as follows;

− Fine of $250.00
− In Default, 25 days imprisonment.
− Disqualified from holding or obtaining a driving license for 4 months.

The second count is "Dangerous Driving "Contrary to section 98(1) and 114 of Land Transport Act 35 of 1998.

The maximum sentence under Section 98 of the Land Transport Act is $1000.00/12 months and disqualification for 06 months. The disqualification is not mandatory.

The accused in this case has no previous convictions under the "Land Transport Act".

"The section 59 (2) of the Land Transport Act" provides as follows:

"Unless disqualification is mandatory, if a person is convicted of an offence for which disqualification is part of the prescribed Penalty, the court may, if sufficient reason is shown, disqualify the person for a shorter period than that prescribed, or decide not to disqualify the person, and must specify the reason".

In "Harnam Singh & Ano. Vs Police" [1956 – 57] 5 Fiji LR 58, Hammett J said,

"Where there are no special reasons, it is mandatory to order disqualification, where there are special reasons the court has a discretion whether to order disqualification or not".

Before the court exercise the discretion, the accused has to show "special circumstances of the case" for which he carried the onus. This was therefore not an unfettered discretion; rather it was a limited discretion. [Lines vs Herson 1951, 2 K.B at P. 686 Per Lord Goddard C.J.]

However, the word "sufficient reason" has a wider meaning than that of a "special circumstances of the case" or "special reasons". The "sufficient reason" is wide enough to include reasons of a more general character which relate to the offender and not solely to the offence.

Case Law referred:

1. Whittall vs Kirby (1947) K.B. 194
2. Lines vs Herson (Supra)
3. Jones vs English 1951 2 AER 853.
   

The accused is not a driver by the occupation. Hence driving a vehicle does not provide the source of livelihood to the accused. I note the standard of driving shown in the offending. I also note the need to protect the public from dangerous/careless/drunk drivers.

In view of the reasons adduced above, I do not see cogent reasons not to disqualify the accused. But I see reasons to disqualify the accused.

Accordingly, I sentence the accused for the second count as follows;

- Fine of $250.
- In default, 25 days imprisonment.
- Disqualified from holding or obtaining a driving licence for 4 months.

The third count is "use of vehicle without the owner's permission" Contrary to Section 100 (1) and 114 of the Land Transport Act 35 of 1998.

The prescribed sentence for this offence is $500.00/03months imprisonment and disqualifications for 06 months.

Accordingly, I sentence you for the third count as follows:

- Fine of $200.00
- In default, 20 days imprisonment.
- Disqualified from holding or obtaining a driving license for 04 months.

The default term mentioned in the second and third counts should run consecutively with the default term mentioned in the first count.
The disqualification mentioned in the second and third counts should run concurrently with the disqualification mentioned in the first count.

28 days to Appeal.

Dated 16th June, 2014.

Jude Nanayakkara [Mr.]
RESIDENT MAGISTRATE

Magistrate Court – 02
NASINU