Director of Public Prosecutions v Osali [1978] FJSC 41; Criminal Appeal 039 of 1978 (31 July 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No. 39 of 1978

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

and

JONE OSALI

JUDGMENT

On the 10th April 1978 at Suva Magistrates Court the respondent was convicted on his own plea of driving a motor vehicle under the influence of drink contrary to section 39(1) of the Traffic Ordinance (hereinafter called count 1) and of dangerous driving contrary to section 38(1) of the Traffic Ordinance (hereinafter called count 2), both offences arising from the same set of facts. On count 1 he was sentenced to a fine of $50 and disqualified from driving for three months, and on count 2 he was granted as absolute discharge.

The Crown has appealed on the grounds that the fine is inadequate, that the respondent should have been disqualified for at least twelve months, and that it was wrong in principle to grant an absolute discharge on count 2.

As I pointed out earlier today (in R. v. Mohammed Iqbal Cr. App. 45/78) too many drivers are disregarding the responsibility they owe to others, resulting in unnecessary suffering and waste of human life. To drive when under the influence of liquor to such an extent as to be incapable of properly controlling a motor vehicle is a reprehensible and prevalent offence and warrants severe punishment. In R. v. Laisiasa Bulamaibau Cr. App. No. 23/77 I stated that:

"For a person to attempt to drive a motor vehicle in this condition shows such a culpable disregard for the safety of other road users as to justify a sentence of imprisonment".

In that case the evidence revealed that the blood alcohol level of the driver was 356 milligrams/100 millilitres. In the present case the blood alcohol level of the respondent is not known, as at the present time the Royal Fiji Police, who are responsible for ensuring safety on the roads, have no power to require a suspected drunken driver to give a blood sample. This deficiency in the law hampers the preventive action of the police, and is of benefit only to drunken drivers many of whom, although they are a menace on the roads, cannot be brought to justice.

The respondent who is a truck driver by occupation earning $78 a week, was seen to be driving a light goods vehicle along Edinburgh Drive at 7.30 p.m. in a zig-zag manner, ending up on the wrong side of the road after nearly colliding with an approaching bus; and on being examined at hospital was found to be too drunk to properly control a motor vehicle.

If a person drives a motor vehicle while so drunk as to be incapable of properly controlling it, and in so doing causes a dangerous situation by failing to exercise the prudence and care of a competent and experienced driver, it is perfectly in order for him to be charged both with drunken driving and dangerous driving (R. v. McBride (1961) 45 Cr.App.R. 262; R. v. Sohan Ram Suva Cr. App. No. 138 of 1977); and in such circumstances the fact that the offender not only drove when drunk, but also drove dangerously should be reflected in the sentences imposed.

By virtue of section 38(1) of the Penal Code, a prerequisite to ordering an accused to be absolutely discharged is that, having regard to the circumstances including the nature of the offence and the character of the offender, it is inexpedient to inflict punishment - a prerequisite that has no application to the circumstances of this case.

As to disqualification, section 39(2) of the Traffic Ordinance provides that if a person is convicted of drunken driving he shall be disqualified for a period of not less than twelve months, unless the court for special reasons thinks fit to order otherwise. A "special reason" within the subsection is one which is special to the facts of the particular case, that is, special to the facts which constitute the offence. It is in other words a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, but directly connected with the commission of the offence and one which a court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender, as distinguished from the offence, is not a "special reason" within the subsection. No consideration of financial hardship, or of the offender being before the court for the first time, can be regarded as a special reason (Whittal v Kirby (1996) 2 All E.R. 552: cf. R. v. Gokul Singh Suva Cr. App. 19/75). Further, if special reasons are being raised by the defence it is not sufficient for the accused or his counsel simply to submit them in an address in mitigation. The proper procedure was laid down in R. v. Lundt-Smith (1964) 2 W.L.R. 1063, namely that evidence on oath should be given by the accused of the circumstances put forward as special reason for not ordering disqualification (R. v. Indar Naicker Suva Review 4/78).

In the case before me these requirements were not met, as counsel for the appellant simply submitted to the trial Magistrate in mitigation that the respondent was a truck driver by occupation and could not earn a living in any other way - a factor irrelevant to disqualification.

As to count 1, in substitution for the three months' disqualification ordered by the trial Magistrate I order that the respondent be disqualified from holding or obtaining a driving licence for a period of twelve months.

As to count 2, the order of the trial Magistrate that the respondent be absolutely discharged is set aside and in substitution therefor, taking into account the respondent's means and the fine imposed on count 1, the respondent is fined $50.

Clifford H. Grant
Chief Justice

Suva,
31st July 1970.