State v Chetty - Sentence [2018] FJMC 133; Traffic Criminal Case 20 of 2018 (29 October 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Traffic Criminal Case No: 20 - 2018

STATE
-v-
AVINESH RAM CHETTY

For Prosecution: Inspector Lenaitasi [ Police Prosecution ]

Accused: Mr Samy [ Legal Aid Commission ]

Date of Sentence: 29^th day of October 2018

SENTENCE

1. AVINESH RAM CHETTY, you have pleading guilty to the following charge:
   

Statement of Offence

Driving Motor Vehicle Whilst There Was Presence [ sic ] in the Blood a Concentration of Alcohol In Excess Of The Prescribed Limit: Contrary to section 103 ( 1 ) ( a ) and 114 of Land Transport Breathe Test and Analysis Regulation 2000.

Particulars of Offence

AVINESH RAM CHETTY, on the 4^th day of December, 2017 at Tavua in the Western Division drove motor vehicle registration number EL 330 on Kings Road, Natawa whilst there was present in 100 millilitres of his blood a concentration of 154 milligrams of alcohol which was in excess of the prescribed limit.

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 revealed that police were behind you on the road. The vehicle driven by you was being driven in a ‘zig zag’ manner. When you stopped, you were approached by police and questioned. There was a heavy smell of liquor emanating from you. You were then escorted to the Police Station to be tested using a dragger machine.
   
5. You were tested on dragger alcotest 7110. There was 70 microgrammes of alcohol per 100 millilitres of your breath.
   
   6. The prescribed concentration of alcohol or legal limit is 80 milligrams of alcohol in 100 millilitres of blood.
      
   7. The reading on a breath analysing instrument in microgrammes of alcohol per 100 millilitres of breath is to be multiplied by 2.3 in order to arrive at the number of milligrams of alcohol in 100 millilitres of blood [ section 3 of the Land Transport ( Breath Tests and Analyses ) Regulations 2000.
      
8. After calculation, you exceeded the legal limit by approximately 81 milligrams.
   
9. When you were questioned by police in relation to the incident, you said that you were driving your cousin and aunty at the time. You drank beer earlier. You said you drank 6 bottles. After you were stopped by police, you were then brought to the police station, tested and then locked in the cell.
   
10. You have no previous conviction.
    
11. You spent 1 night in police custody.
    
12. In your mitigation you promise not to re-offend. You are 32 years old. You are a farmer and the sole breadwinner. You support your wife.
    

MAXIMUM SENTENCE

13. The law allows a court to impose a fine on you which can be up to $2,000 and or you can be imprisoned up to 2 years and being mandatorily disqualified from driving between 3 months even up to 2 years.
    

SENTENCING RANGE or SENTENCING TARIFF

14. The courts have not set any sentencing preference or tariff for this type of offence and so the final sentence in each case will be determined by the circumstance of each case.
    

Starting Point

15. In your case, I select a starting point of 2 months imprisonment.
    

Aggravating Factor

16. You exceeded the prescribed limit by approximately 81 milligrams.
    
17. There were passengers in the car when you were driving and your manner of driving is potentially dangerous to them and the public.
    
18. Your sentence is increased to 4 months imprisonment.
    

Mitigating Factors

19. You have no previous conviction.
    
20. You will receive some reduction for cooperating with the police when they questioned you.
    
21. I don’t consider your family circumstance to be of any value in mitigation. You should have thought about that before driving under the influence.
    
22. Your sentence is reduced to 2 months imprisonment.
    

Time In Remand / Custody

23. I will not consider the 1 night you spent in police custody as time served. This was necessary, especially for the protection of other road users and to allow police to complete their investigation. The situation was created by you.
    
24. You have not spent any time in remand and so no time will be deducted for this.
    

Guilty Plea

25. You have pleaded guilty early.
    
26. Your sentence is reduced to a 1 month imprisonment term.
    

Suspended Term and Disqualification

27. 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.
    
28. Considering the circumstance of your case, I will suspend your sentence in whole.
    
29. I will still impose a fine on you.
    
30. Your sentence is aimed at deterrence, is to punish you and also to give you a chance to prove yourself.
    
31. The length of time a person can be disqualified from driving can be determined by assessing the standard of driving shown, any previous traffic violations, the need to protect the public from dangerous or drunk drivers, good character of the defendant and whether there is any serious hardship to the family and whether driving is a source of income [ State v Joel Sahai Case No. HAAR 002 of 2017 (29^th August 2017)].
    

SUMMARY

32. Your final sentence is this:
    

Your 1 month imprisonment term is suspended for the next 1 year.

Commit any other offence in the next 1 year and this 1 month imprisonment term held in waiting maybe activated.

You are fined $250 to be paid in 28 days. In default, 10 days imprisonment.

You are disqualified from driving for 3 months effective from today.

[ surrender your license ]

33. 28 days to appeal.

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

Dated at TAVUA this 29^th day of October, 2018.