State v Saunokonoko - Sentence [2018] FJMC 135; Traffic Criminal Case 30 of 2018 (29 October 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Traffic Criminal Case No: 30 - 2018

STATE
-v-
AKARIVA SAUNOKONOKO

For Prosecution: WPC Chand [ Police Prosecution ]

Accused: In Person, Waived the right to Counsel

Date of Sentence: 29^th day of October 2018

SENTENCE

1. AKARIVA SAUNOKONOKO, you have pleading guilty to the following counts:
   

Count 1

Statement of Offence

Driving Motor Vehicle Whilst There Was Presence in the Blood a Concentration of Alcohol In Excess Of The Prescribed Limit: Contrary to section 105 ( 1 ) ( a ) and 114 of Land Transport Breathe Test and Analysis Regulation 2000.

Particulars of Offence

AKARIVA SAUNOKONOKO, on the 11^th day of March, 2018 at Tavua in the Western Division being a provisional license holder drove a motor vehicle registration number HU 353 on Kings Road Tavua town whilst there was present in 100 millilitres of his blood a concentration of 215.6 milligrams of alcohol which was in excess of zero limit.

Count 2

Statement of Offence

Driving Motor Vehicle Without Being A Holder Of A Valid Driving License: Contrary to section 56 ( 3 ) ( a ) ( 6 ) and 114 of the Land Transport Act 1998.

Particulars of Offence

AKARIVA SAUNOKONOKO, on the 11^th day of March, 2018 at Tavua in the Western Division drove a motor vehicle registration number HU 353 on Kings Road, Tavua without being a holder of a valid driving license in respect of the said motor vehicle with the driver’s license expired on 15-05-14.

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 on both counts.
   
4. You admitted the facts which revealed that police tried to stop you when you were driving. You were followed onto a nearby road and which is where they managed to stop you. When you were approached by police, the heavy smell of liquor was noticed on you. You were arrested and taken to the police station for testing.
   
5. You were tested on dragger alcotest 7110. There was 98 micrograms of alcohol per 100 millilitres of your breath.
   
6. You exceeded the legal limit by 225.4 milligrams.
   
7. When you were questioned by police, you said that you came to town to do some shopping. Some of your friends were drinking beer and so you joined them. You then dropped some of them later. Police were behind you at one point and they stopped you and asked you to disembark from the vehicle as you were drunk. You said that you drove because there was no one else to drive the vehicle. You admitted that you didn’t have a valid driving license and that it had expired.
   
8. You have no previous conviction.
   
9. You spent 1 night in police custody and you have not spent any time in remand.
   
10. In your mitigation you promise not to re-offend. You are 28 years old. You have pleaded guilty early. You have 2 children and you are the sole breadwinner. You said that you did not have the money to renew your license and that you drove the vehicle because you were the only driver.
    

MAXIMUM SENTENCE

11. For driving a vehicle whilst there was alcohol in your breath above the prescribed limit, 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.
    
12. For driving without a license, it can be a fine of up to $200 and or 30 days imprisonment.
    

SENTENCING RANGE or SENTENCING TARIFF

13. The courts have not set any sentencing preference or tariff for both offences and so the final sentence in each case will be determined by the circumstance of each case.
    

Starting Point

14. For the 1^st count, I select a starting point of 3 months imprisonment.
    
15. For the 2^nd count, I select 2 weeks imprisonment.
    

Aggravating Factor

16. You exceeded the prescribed limit by approximately by 225 milligrams.
    
17. This was excessive.
    
18. You were also driving around the town area and driving others around. This was potentially dangerous to them and other members of the public.
    
19. You also did not stop when requested by the police.
    
20. The sentence for the 1^st count is increased to 5 months imprisonment.
    
21. I don’t see any aggravating factor for the 2^nd count and so it will remain at 2 weeks imprisonment.
    

Mitigating Factors

22. You have no previous conviction.
    
23. You will receive some reduction for cooperating with the police when they questioned you.
    
24. I don’t consider your family circumstance to be of any value in mitigation. Your actions tell me that you don’t care about your family. Your family will not be used as a tool when it is convenient.
    
25. Your sentence for the 1^st count is reduced to 4 months imprisonment.
    
26. Your sentence for the 2^nd count is reduced to 10 days imprisonment.
    

Time In Remand / Custody

27. 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.
    
28. You have not spent any time in remand and so no time will be deducted for this.
    

Guilty Plea

29. You have pleaded guilty early.
    
30. The sentence for the 1^st count is reduced to 3 months imprisonment.
    
31. The sentence for the 2^nd count is reduced to 7 days imprisonment.
    

Suspended Term and Disqualification

32. 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.
    
33. Your sentence is aimed at deterrence, is to punish you and also to give you a chance to serve your sentence outside prison or to prove yourself.
    
34. 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

35. Your final sentence is this:
    

1^st count for breaching zero alcohol limit whilst being a provisional license holder

3 months imprisonment.

This will only be suspended in part.

You will serve 1 month imprisonment immediately.

Your remaining 2 months will be suspended for the next 2 years.

Commit any other offence in the next 2 years and this remaining term may be activated.

You are also disqualified from driving for the next 1 year, effective from today.

[ surrender your license, if you have a valid one at the moment ]

2^nd count for driving without a valid driving license

7 days imprisonment.

I refuse to suspend this sentence.

It will be made consecutive to your sentence received for the 1^st count.

In my opinion, ordering a consecutive sentence is not oppressive and does not breach the totality principle. If it is made concurrent, you will escape punishment for knowingly driving without a license.

Therefore, for both counts you will serve a total of 1 month and 7 days imprisonment immediately.

You still have 2 months imprisonment remaining for the 1^st count and that will be suspended as I have already explained above.

36. 28 days to appeal.
    

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

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