State v Nasara - Sentence [2018] FJMC 117; Criminal Case 35 of 2018 (20 August 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 35 - 2018

STATE
-v-
SAVENACA NASARA

For Prosecution: Sgt Samy [ Police Prosecution ]

Accused: In person, waived right to counsel

Date of Sentence: 20^th day of August 2018

SENTENCE

1. SAVENACA NASARA, you have pleading guilty to the following charge:
   

Statement of Offence

DANGEROUS DRIVING OCCASIONING BODILY HARM: Contrary to section 97 ( 3 ) ( 4 ) ( c ) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

SAVENACA NASARA, on the 10^th day of May, 2018 at Tavua in the Western Division drove motor vehicle registration number ED 474 at Kings Road, Tavua in a dangerous manner and caused an accident thereby causing injuries to a pedestrian namely SHIU NARAYAN.

2. I am satisfied that your guilty plea is voluntary and that you understand the consequences of your plea.
   
3. I have found you guilty accordingly.
   
4. You admitted the facts which reveal that you bumped the 51 year old victim when he was using a zebra crossing. The victim was already crossing and was around the middle point of the zebra crossing. You were speeding and I am satisfied that if you were paying attention, you would have realized that you were approaching a zebra crossing and not only that, you would have seen the victim walking on that crossing and slowed down. But you didn’t and you bumped him. A reasonable, prudent and experienced driver would have been aware and would have slowed down before approaching the zebra crossing whether or not a pedestrian was using the zebra crossing at the time or not. You caused the dangerous situation..
   
5. Amongst other things, your manner of driving caused the victim to sustain severe multiple injuries to his spine, head and his shoulder was dislocated. The medical report indicates that he also sustained a fracture to his tricep.
   
6. He is now in a stable condition. His wounds will heal in 2 – 3 weeks and the fracture will heal in 2 – 3 months according to the medical officer who examined the victim.
   
7. When you were questioned by police in relation to the incident, you said that you had driven the vehicle from Nadi the night earlier. You had driven onto the main road at Tavua where the zebra crossing was after travelling through the Tavua back road. You said that you saw the victim about 7 meters away when he was crossing on the main road . You said that you were travelling within the speed limit and that your break did not work and so you drove or swerved the vehicle but it still hit the victim. You admitted that you would have left the scene if it were not for the police who were there coincidentally too and who then told you to come to the police station.
   
8. I have no doubt that the breaking system of the car was working fine at the time. Otherwise you would not have been able to drive the vehicle from Nadi to Tavua and you would not have been able to drive to the main road where the incident happened and you would not have been able to drive thereafter to the Tavua Police Station. Besides, even if I accept that it was not working as you claimed, by that admission, you are driving dangerously knowing that the brake system was not working and continued to drive.
   
9. I find that you lied to the police.
   
10. You have admitted the facts proposed in court to you on the day you pleaded guilty. You admitted that you were speeding.
    
11. You have been rightly convicted.
    
12. You have previous convictions for larceny, damaging property and being found in possession of illicit drugs. Although these were convictions in the late 1990’s, I will not disregard them or consider them irrelevant.
    
13. For instance, larceny involves an element of dishonesty.
    
14. In this traffic case, I find that you have lied to police claiming that the braking system was not working on that day when you bumped the victim on that zebra crossing.
    
15. Lying to police is also dishonest.
    
16. I don’t accept that you have learnt from your past.
    
17. I will also not regard you as a person having a good history.
    
18. When you appeared in this traffic case, you were remanded for approximately 14 days and then released on bail. After being released, you were then taken back into custody on the 28^th day of May 2018 charged with absconding bail in Tavua CF 159 – 18. You have been in custody since then. I will only consider the 14 days you have spent as time in remand and I will disregard the rest as that is for a different or for the subsequent allegation of absconding bail.
    
19. In your mitigation you seek forgiveness and promise not to re-offend. You are farming but you say that you will still be able to pay a fine. You support your wife and 2 children.
    

MAXIMUM SENTENCE

20. The maximum sentence a court can impose for aggravated dangerous driving occasioning actual bodily harm is a $5,000 fine or up to 5 years imprisonment or to both a fine and imprisonment and disqualification from driving for up to 2 years.
    

SENTENCING RANGE or SENTENCING TARIFF

21. Fines and or a suspended term and even up to 12 months imprisonment are acceptable sentences for this type of offence [ Taslim A Ali v The State Criminal Case HAA 51 of 2016 ].
    

Starting Point

22. In your case Mr Nasara, I select a starting point of 5 months imprisonment.
    

Aggravating Factor

23. You bumped the victim, a pedestrian rightly using a zebra crossing.
    
24. Pedestrians need to feel secure when using this public convenience.
    
25. You lied to the police when you were interviewed and claimed that the brake system of the vehicle was not working.
    
26. You would have left the scene if it were not for the police who reacted immediately.
    
27. Your sentence is increased by 3 months because of all these.
    
28. Your interim sentence is 8 months imprisonment.
    

Mitigating Factors

29. You will receive no discount or reduction as you don’t have a good history.
    
30. You will receive no reduction as you did not cooperate with the police.
    
31. You have a family to look after and this I will take into account as mitigation.
    
32. Your sentence is reduced by 1 month only.
    
33. Your interim sentence now sits at 7 months imprisonment.
    

Time In Remand / Custody

34. 14 days will be deducted further from your sentence for the time you have been in remand.
    
35. Your sentence is 6 months and 14 days imprisonment.
    

Guilty Plea

36. You have pleaded guilty early, surely this deserves recognition.
    
37. Your sentence is further reduced by 2 months because of this.
    
38. This brings your interim sentence to 4 months and 14 days imprisonment.
    

Suspended Term.

39. I can suspend your sentence whether in whole or in part pursuant to section 26 ( 1 ) and ( 2 ) ( b ) of the Sentencing and Penalties Act 2009, if your sentence is below 2 years imprisonment.
    
40. Considering the circumstance of your case, the injury caused, your manner of driving, the location where you bumped the victim which was at a zebra crossing, your reaction after that, I’m inclined to suspend your sentence but only in part.
    

SUMMARY

41. Your final sentence is this:
    

4 months and 14 days imprisonment.

From this, you will serve 1 month and 14 days imprisonment immediately.

Your remaining 3 months imprisonment term will be suspended for the next 18 months or 1 year 6 months.

42. Commit any other offence in the next 18 months and your suspended term may be activated.
    

[ suspended term explained to the defendant ]

43. 28 days to appeal.
    

.........................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at TAVUA this 24^th day of August, 2018.