State v Ratu - Sentence [2018] FJMC 136; Traffic Criminal Case 45 of 2018 (29 October 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Traffic Criminal Case No: 45 - 2018

STATE
-v-
VARINAVA RATU

For Prosecution: Inspector Lenaitasi [ Police Prosecution ]

Accused : Ms Henao as Duty Solicitor [ Legal Aid Commission ]

Date of Sentence: 29^th day of October 2018

SENTENCE

1. VARINAVA RATU, you have pleading guilty to the following charge:
   

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 103 ( 1 ) ( a ) and 114 of Land Transport Breathe Test and Analysis Regulation 2000.

Particulars of Offence

VARINAVA RATU, on the 28^th day of June, 2018 at Tavua in the Western Division drove a motor vehicle registration number LR 2948 on Tavualevu Road, Tavua whilst there was present in your breath 68 micrograms of alcohol which is equivalent to 149.6 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 stopped you after receiving a report that the vehicle you were driving was being driven by a person under the influence of liquor. After you were stopped by police, the heavy smell of liquor was noticeable on you and you had blood shot eyes. You were then taken to the Tavua Police Station to be tested.
   
5. You were tested on dragger alcotest 7110. There was 68 micrograms 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 76 milligrams.
   
9. When you were questioned by police in relation to the incident, you said that you were drinking rum since that morning. You were driving home when police stopped you.
   
10. You have no previous conviction.
    
11. You spent 8 hours in police custody and you have not spent any time in remand.
    
12. In your mitigation you promise not to re-offend. You are 25 years old. You have pleaded guilty early. You cooperated with police.
    

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 76 milligrams.
    
17. Your sentence is increased to 3 months imprisonment.
    

Mitigating Factors

18. You are young and you have no previous conviction.
    
19. You will receive some reduction for cooperating with the police when they questioned you.
    
20. Your sentence is reduced to 2 months imprisonment.
    

Time In Remand / Custody

21. I will not consider the 8 hours 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.
    
22. You have not spent any time in remand and so no time will be deducted for this.
    

Guilty Plea

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

Suspended Term and Disqualification

25. 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.
    
26. Considering the circumstance of your case, I will suspend your sentence in whole.
    
27. I will still impose a fine on you.
    
28. Your sentence is aimed at deterrence, is to punish you and also to give you a chance to serve your sentence outside prison to prove yourself.
    
29. 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

30. 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 $200 to be paid in 28 days. In default, 7 days imprisonment.

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

[ surrender your license ]

31. 28 days to appeal.

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

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