Bulamaibau v Reginam [1977] FJSC 17; Criminal Appeal 023 of 1977 (1 April 1977)

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 23 OF 1977

BETWEEN:

:

LAISIASA BULAMAIBAU

AND:

REGINAM

JUDGMENT

e 21st February 1977 at Suvt Suva Magistrates Court the appellant was convicted after trial of driving a motor vehicle whilst under tfluence of drink to such an extent as to be incapable of haof having proper control of the vehicle contrary to section 39(1) of the Traffic Ordinance and was sentenced to a fine of $300 in default six months' imprisonment and was disqualified from holding or obtaining a driving licence for three years.

The appellant has appealed against sentence upon the ground that it is too severe in view of the circumstances of the case.

The circumstances of the case are that during the early hours of the morning of the 22nd July 1976 a mobile police patrol attended the scene of an accident at Kings Road and found that the appellant had driven his car off the road onto the grass verge and into a drain. He smelled heavily of liquor, was unsteady on his feet and had to support himself by leaning on his car. He was medically examined at the Colonial War Memorial Hospital, and was found to be totally drunk, out of control and utterly incapable of driving. A sample of his blood was taken and analysed and it was ascertained that his blood-alcohol level was 356 milligrams/100 millilitres. This is an extremely high blood-alcohol level, most of the recorded cases of death arising from over-consumption of alcohol being in the 350-500 milligrams/100 millilitres range. It is over the danger limit and only an habitually heavy drinker would be able to sustain such a level without passing out.

For a person to attempt to drive a motor vehicle in this condition shews such a culpable disregard for the safety of other road users as to justify a sentence of imprisonment. In 1974 this Court in R. v. Deo Narayan (Crim.App. No. 97/74) substituted a fine for a sentence of imprisonment in a case where the blood-alcohol level was 230 milligrams/100 millilitres, but went on to state-

"It may well be that the time will come when, due to the prevalence of this offence, the courts will feel bound to sentence every offender to imprisonment. For a man to drive when under the influence of alcohol to such an extent as to be incapable of properly controlling a motor vehicle shews a culpable disregard for the safety of others, places road users at risk, and is certainly not a matter to be treated lightly. However at present it is not the practice, except in the most reprehensible circumstances, to send to prison a first offender."

To drive after having consumed a very considerable quantity of alcohol is a "reprehensible circumstance". In England, in R. v. Tupa (1974) Crim.L.R. 58 in a case where a motorist was convicted of driving a motor car with a blood-alcohol level of 289 milligrams/100 millilitres and was sentenced to a fine of £250, the Court of Criminal Appeal made it clear that where such an amount of alcohol has been consumed a custodial sentence would, in many cases, be entirely appropriate and ought not to be interfered with on appeal.

When passing sentence in the present case the trial Magistrate rightly stated-

"I cannot imagine many things more irresponsible than driving a motor vehicle on a road whilst totally drunk. It is an action where consequences could be as lethal as wandering the streets with a loaded firearm whilst similarly intoxicated. This offence is one which is encountered with alarming regularity in these Courts. It is an offence, I am perfectly sure, that the Courts must do their utmost to discourage. It is true there was no accident involving injury or damage in this case. This can only be attributable to good luck and not to action on the part of the accused. It appears to me high time that the Courts reflected a more serious attitude by imposing greater penalties."

As the trial Magistrate after taking all the circumstances into account saw fit to impose a substantial fine, I shall refrain from substituting a sentence of imprisonment.

There is no merit in the appeal which is dismissed.

Clifford H. Grant
Chief Justice

Suva,
1st April 1977.