State v Dass [2015] FJMC 18; Traffic Case 224.2015 (13 February 2015)

IN THE RESIDENT MAGISTRATE'S COURT AT THE
WESTERN DIVISION-SIGATOKA

Traffic Case No: - 224/2015

STATE

–v-

CAITANYA DASS

BEFORE : - Resident Magistrate, Tomasi Bainivalu
For Prosecution : - WPC 3348 Elina Lotudina Cerei
For Accused : - Present in person.
Date of Sentence :- 13th February, 2015
Place of Sentence :- Sigatoka Magistrates Court

SENTENCE

1. CAITANYA DASS, you pleaded guilty to driving a motor vehicle whilst there was present in the blood a concentration of alcohol in excess of the prescribed limit, contrary to section 103 (1) (a) and 114 of the Land Transport Authority Act,35 of 1998. When the summary of facts was read out by the prosecution, you admitted it as a true account of your offending. I find you guilty and convict you accordingly.
   
1. To be able to sustain a charge under s. 103 (1) (a) of the Land Transport Authority Act 1998, the prosecution will need to read facts or lead evidence that
   
   • The accused
   • Drove a motor vehicle
   • Whilst more than the prescribed concentration of alcohol is present in his blood.
     
2. Regulation 3 (1) of the Land Transport (Breath Tests and Analyses) Regulations 2000 provides that the prescribed concentration of alcohol is 80 milligrams of alcohol in 100 millilitres of blood.
   
3. Sub regulation (2) of regulation 3 provides that evidence that there is alcohol in the blood in excess of the prescribed concentration at a relevant time may be given by either reference to a sample of the person's blood taken with his or her consent, or by reference to the reading on a breath analysing instrument in accordance with sub regulation (3).
   
4. That sub regulation provides that a reading on a breath analysing instrument in micrograms of alcohol per 100 millilitres of blood is to be multiplied by 2.2 in order to arrive at the number of milligrams of alcohol in 100 millilitres of blood.
   
5. Significantly in the context of this case before me, regulation 4 (1) lays down the approved breath testing device as the Lion Alcometer Model DS-190 with dual screen and memory for 500 tests. Similarly, the Drager Alcotest 7110 with 3 automatic printouts is the approved breath analysing instrument for breath analysis.
   
6. The facts are that:-
   

"On the 27th day of December, 2014 at about 0050hrs at Muasara Beach Side Road, Sigatoka, Caitanya Dass (Accused) aged 22 years, Auditor of Hideaway Resort drove motor vehicle Reg. No: ES523 under the influence of liquor an exceeded the prescribed limit.

On the above date, time and place ASP Samisoni Naqica (PW1) Officer in Charge of Sigatoka Police Station was conduction operation around Sigatoka area in Flet 49 with the Operation Team consisting of PC 4360 Apakuki and PC 4702 Asaeli and was patrolling along Muasara Seaside when PW1 saw the Accused's vehicle parking at the far end of the tar sealed road at Muasara. Whilst approaching the Accused's vehicle the passengers boarded the vehicle and Accused drove away. PW1 then confronted the Accused and managed to stop him by parking in front of Accused's vehicle. PW1 approached Accused and ordered him to come outside the vehicle. The Accused was heavily smelt of liquor and was arrested at the scene and escorted to Sigatoka Police Station.

At Sigatoka Police Station PC 1639 Praneel Gounder conducted breath test of the Accused and the result was 74 micrograms of alcohol per 100 milliliters of breath which was multiplied by 2.2 in accordance with Regulation 3 (3) of Breath Test and Analysis Regulation 2000 and the result was 162.8 milligrams of alcohol which was in excess of prescribed limit.

Upon receipt of the report PC 3780 Tevor (C-1) was appointed the investigating officer whereby Accused was caution, interviewed, charged and bail to appear Sigatoka M.C. on 10/02/15"

7. The maximum penalty for this offence is a fine of $2,000/2 years and mandatory disqualification from 3 months to 2 years, for a first offending. . This alone is indicative of how seriously the legislature had intended this offence to be treated by the Courts. I give effect to the intention of the legislature, and adopt Winter J's dicta in Lal v The State [2004] FJHC 106; HAA0038.2004 (19th May, 2004), wherein His Lordship stated:
   

"This scheme of penalties is indicative of Parliament's view and quite rightly so that drink driving is unacceptable. The increasing range of penalties is there to remind citizens that if they drink and drive and accept that risk, then they can expect increasingly harsh and stern sentences."

8. Mitigating Factors
   
   • Early guilty plea,
   • First time offender,
   • 23 years old, single,
   • Employed as a Resort Auditor for Hideway Resort;
   • Earn $220.00 per fortnight,
   • Ask for D/L not to be cancelled.
   • No one was injured, and no one else's property was damaged
     
9. Aggravating Factors
   

I find that by driving whilst under the influence of alcohol, you placed the lives of other motorists and pedestrians at peril. I treat this as an aggravating factor. There are just too many accidents on our roads owing to the reckless attitude of drivers like you who do not realise, often until it is too late, that alcohol and driving do not mix. They are a deadly combination.

10. Your sentence should therefore reflect the concern of the lawmakers and of the public in respect of drivers who drink alcohol and drive.
    
11. On the facts of this case, I hereby fine you in the sum of $1,000.00. You are also disqualified from holding or obtaining a driver's licence on any groups for 12 months.
    
12. I have considered your income, and pursuant to s. 34 of the Sentencing and Penalties Decree of 2009, I order that you pay the fine of $1,000, over 3 months, in 3 instalments: two instalments of $350 each and one instalment of $300.00.
    
13. The first payment of $350.00 is payable in a month's time from to date, which means you will need to pay it by 16/03/15. The second payment of $350.00 should be paid by 13/04/15, and with the balance of $300.00 payable by 18/05/15.
    
14. Default in the payment of each penalty unit ($100) or a part thereof, will incur 10 days imprisonment; i.e. the court totals the imprisonment default term at any default monthly payment to twenty five (25) days imprisonment each.
    

28 days to appeal

...................................
Mr Tomasi Bainivalu
Resident Magistrate
Sigatoka.

Distributions
:- Accused person-copy
:- Prosecution copy
:-File copy (C/No.224/15