Director of Public Prosecutions v Reddy [1977] FJSC 135; Criminal Appeal 7 of 1977 (25 August 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Labasa Criminal Appeal No. 7 of 1977

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

AND

PRADIP CHANDRA REDDY
s/o Subramani Reddy
Respondent

JUDGMENT

This is an appeal by the Director of Public Prosecutions against the sentence of a fine of $50 or two months' imprisonment in default imposed by the Labasa Magistrate's Court on the respondent following his conviction on 12th April, 1977 for the offence of wrongful confinement contrary to section 288 of the Penal Code.

The Director appeals on the ground that the sentence is manifestly lenient having regard to the nature and circumstances of the offence.

The particulars of the offence were that on 26th November, 1976 at Naduri, Labasa, the respondent wrongfully confined Taraivini Wane, Mere Vakacegu and Latila Lakai.

The basic facts were as follows. On the night of 26th November last the respondent drove to the Naduri jetty in his van with two other men. There they drank liquor and had some meal. Afterwards whilst they were about to leave in the van, three young girls ran up to them from the nearby village of Naduri. One of the girls asked the respondent on their behalf for a lift in his van to Nasoso village along the way. The respondent agreed and thereupon the girls got onto the back of the van. As the van approached the point on the road where the girls wanted to get off they shouted to the respondent to stop but he ignored the shouts to stop and increased the speed with which van was travelling. One of them banged on the roof of the van and as the respondent did not stop she slapped his face but the van continued travelling at high speed. The girls became very frightened and were in a panic. Each of them decided to jump off the speeding van and did so, one after the other with dire results. Two of them died almost immediately from injuries received whilst the third survived the severe injuries she sustained.

In this case the issue of sentence seems to have presented a great deal of difficulty to the learned trial Magistrate. It is clear from the record that he gave it the most anxious consideration.

The learned trial Magistrate put the matter clearly and concisely when he stated in his judgment -

"In this case this young accused through his wrongful confinement of these three young girls caused them to panic and to jump out of his moving vehicle. As a result two were killed and one injured."

(Underlining mine)

He also correctly formed the view that the respondent ought not to be punished for the resulting deaths for he could not have known that the girls would act as they did. He erred, however, in my view, when he said -

"If say, the accused had taken these girls on an agreed journey and had wrongfully confined them for 10 minutes and then stopped his vehicle and told them it was only a practical joke and had then returned them to their agreed stopping place and the girls had reported the matter to the police, what would have been the appropriate sentence then?"

There was no evidence of any practical joke, or even inadvertence, on the respondent's part. In his judgment the learned trial Magistrate had found -

"I do not believe that either the accused or P.W.4 did not hear screaming coming from a matter of feet, if not inches, behind them, which screaming could be heard by P. W.5 not less than two chains away and possibly even five chains distance. I am satisfied beyond a reasonable doubt that the accused did hear that tapping on his cab roof and did know it was an urgent signal for him to stop; that he did have is face slapped; that he did hear the screaming and inspite of his knowing that he had gone past the agreed stopping point and his female passengers, at the very least, were anxious about this he continued to drive ......."

It is clear from this that the learned trial Magistrate did find that the respondent had acted as he did quite deliberately knowing the frightened condition of the girls. When he finally came to assess the sentence, however, he seemed to have ignored the element of aggravation involved in the circumstances of the offence. The respondent knew that the girls were in a state of panic and fright when he did not stop his van where the girls wanted to get off. What he did instead was to drive on regardless and with increased speed. The clear inference from all this is that the respondent had other motives on the girls and which accounted for his disgraceful conduct.

I am satisfied that the learned trial Magistrate erred in his assessment of the proper sentence to be imposed on the respondent in not giving due and sufficient weight to the aggravating circumstances of the offence. This error has caused him to impose a sentence which conspicuously ill-befitted the offence committed by the respondent.

This is not the first time I have had to deal with a case of this nature. Last year a young girl died in similar circumstances to the present case. She was given a lift in a truck with two other girls and when the driver did not stop at the place she wanted to get off she jumped from the truck to her death. In that case (Lautoka Criminal Case No. 14 of 1976) I sentenced the accused to 12 months' imprisonment on each of two counts of wrongful confinement. In passing judgment I issued a warning against the growing number of similar cases coming before the courts and the need for potential offenders to take heed. This Court can find little sympathy for motorists carrying passengers beyond the point of agreed destination against their will and for ulterior motives.

In my opinion a fine of $50 in the circumstances disclosed by this case is manifestly lenient and cannot be sustained. The respondent by his act exposed three innocent young girls to the risk of grave danger to limb and health. A deterrent sentence was clearly called for.

The appeal is allowed. The sentence imposed in the court below is set aside and in lieu thereof the respondent is sentenced to 9 months' imprisonment.

Sgd. T.U. Tuivaga
JUDGE

Labasa,
25th August, 1977.