State v Wong [2016] FJMC 28; Traffic Case 314.2015 (7 March 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Traffic Case No: - 314/2015

STATE

V

ANTHONY ILIAKIN WONG

For the Prosecution: -PC Shaw
For the Accused : - Mr.Tuifagalele
Date of Sentence: 07th of March 2016

SENTENCE

1. ANTHONY ILIAKIN WONG, you were charged with one count of Dangerous Driving Causing Death contrary to sections 97(2) ( c ) and 114 of the Land Transport Act and 2 counts of Dangerous Driving Causing Bodily Harm contrary to sections 97(4) ( c ) and 114 of the Land Transport Act.
   
2. You pleaded guilty for this charge and also admitted the following summary of facts.
   

On 11/0/2015, 1500hrs a traffic accident took place along Princess Rd near James Store, Fiji School of Nursing, Tamavua.

Anthony Iliakini Wong (Accused) was driving vehicle registration number LR 2999 from Delainavesi to Cunningham through Princess Road with Vereniki Nailolo (Decreased) 54 years Dock Worker of Lot 1 Naiqila Rd, Caubati Housing, Apete Dabea (PW-1) 22 yrs USP Student of Lot 1, Naiqila Rd, Caubati and Paul Vuetaki (PW-2), FNU Student of Lot 39, Kaudamu Rd, Delainavesi.

Accused and his crew were returning from a funeral in Delainavesi and were heading to Caubati to drop the (deceased).

Upon reaching Fiji School of Nursing, Tamavua, Accused suddenly fall asleep and the vehicle veered off the road and hit an open culvert on left the side of the road causing extensive damage to the vehicle.

PC 4729 Suliano (PW-6) and PC 2805 Senibici (PW-7) attended the scene of accident, take measurement and draw rough sketch plan.

The deceased and (PW-1) were seriously injured; (PW-2) received minor injuries on the nose area whilst (accused) was uninjured.

(PW-1) who broke his right leg was taken down to Sigatoka on 13/02/15 where he was treated by a traditional physician and taken back to Suva by Ambulance.

On 16/02/15 the deceased was transferred to ICU from Acute Surgical after falling to a state of Comma. On 20/02/15 the deceased passed away.

P.M was conducted on 24/02/15 with PM result attached in the DR docket and cause of Death listed.

(Accused) was interviewed by I.O on 28/03/15 and released.

Post-mortem report was released by Dr. Avikali on 08/09/15 and on 19/09/15 the Accused was charged for one (1) count of Dangerous Driving Occassioning Death and two(2) count of Dangerous Occasioning Bodily Harm by WPC 3811 Sulueti (PW-10).

3. I am satisfied that your plea was made on your free will and convict you for this charge.
   

The Law and Tariff

4. The maximum penalty for Dangerous Driving Causing Death is imprisonment for 10 years and a fine of $10,000 with the minimum being a fine of $1,000 and minimum disqualification for 6 months and maximum up to life.
   
5. In Sharma v The State [2005] FJHC 464; HAA0097J.2005S her Ladyship Justice Shameem said:
   

"In 1998 Parliament passed the Land Transport Authority Act, and increased penalty for causing death by dangerous driving to 10 years imprisonment. There can be no clearer Parliamentary intention as to sufficiency of penalty. To reflect such Parliamentary intention, I held in Iowane Waqairatavo that the tariff for such offences must increase to 2 to 4 years imprisonment".

6. In Kumar v State [2014] FJHC 775; Criminal Appeal 172.2014 (27 October 2014) his Lordship Justice Madigan observed:
   

"There is no doubt then that the tariff is still now 2-4 years and the "momentary inattention" mitigating factor is not available under the harsher penalty of the Land Transport Act."

7. The prescribed penalty for Dangerous Driving causing Bodily Harm is $2000/2 years imprisonment and disqualification up to 12 months.
   
8. Considering the gravity of offending I select 02 years as the starting point for Dangerous Driving Causing death.
   

Aggravating Factors

9. Apart from facts that fall to elements of the offences I do not find any facts that would aggravate this offence and therefore would not enhance your sentence.
   

Mitigating Factors

10. The learned defence counsel submitted following mitigating factors:
    
    1. 25 years old;
    2. Single and tertiary student of FNU;
    100. Co-operated with the police;
    4. First offender.
       
11. For the above mitigating factors I deduct 06 months to reach 18 months imprisonment.
    

Early Guilty Plea

12. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed:
    

" ...where there is a guilty plea, this should be discounted for separately from the mitigating factors in a case".

13. In UK sentencing Guidelines for the first available opportunity it has been recommended 1/3 deduction and this has been followed in Fiji too.
    
14. Therefore for pleading guilty at the first available opportunity I deduct 1/3 to reach 12 months imprisonment.
    
15. For the 2 counts of Dangerous Driving causing Bodily Harm I sentenced you to 09 months imprisonment concurrent to this sentence.
    
16. The learned defence counsel submitted this is a proper case for non-custodial sentence and cited the State v William Apted FJHC 653 (11 September 2015) where after a review the High Court found special circumstances to agree with the decision of the magistrate court to suspend a sentence for similar offence.
    
17. Careful perusal of the decision of State v William Apted(supra) shows that the family background of the accused( eldest daughter succumbing to cancer and other children also suffering from cancer ) was sufficient for the High Court to find special circumstances to upheld the suspended sentence from lower court.
    
18. But in this case I do not find any of these to justify a suspending this sentence. Even though the defence counsel submitted that a court should keep young first offenders out of prison when an offence is serious a court has to consider the public interest also.
    
19. Main considerations in sentencing a person for the offence of Dangerous Driving causing Death should be to denounce his behavior as well as to deter future offenders.
    
20. Therefore I sentenced you to 12 months imprisonment for this charge. Also I disqualify you from driving for 03 years.
    
21. When a court is giving a sentence below the tariff it has to give reasons. And in this case mitigating factors and early guilty plea has compelled this Court to come below the applicable tariff for the Dangerous Driving Causing Death.
    
22. 28 days to appeal.
    

Shageeth Somaratne
Resident Magistrate, Suva