Talau v Reginam [1978] FJSC 8; Criminal Appeal 143 of 1977 (10 March 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 143 OF 1977

NEMANI TALAU
Appellant

v.

REGINAM
Respondent

JUDGMENT

The appellant was on the 30th November, 1977 convicted of Dangerous Driving contrary to section 38(1) of the Traffic Ordinance. He was sentenced to nine months' imprisonment and disqualified from holding a driving licence for a period of two years from the date of conviction.

He appeals against sentence.

The manner in which the appellant drove his vehicle on the night in question appears from the findings of facts by the learned Magistrate. He stated in his judgment:

"(1) He drove without headlights.

(2) He drove in a zig zag manner and nearly collided with a taxi.

(3) On no less than 3 occasions he ignored lawful and clear orders to stop from uniformed police officers and on the latter occasion the police officers trying to stop him had to jump aside to save themselves from injury or death. I have no doubt that the accused deliberately ignored the officers' order, as is evidenced by that part of his interview underlined above."

In his interview with the police the appellant stated:

"I was driving up and I saw 2 policemen in the middle of the road. I then blew my horn for them to clear the road and I drove through. That is not their road for them to stand in the middle of the road."

The learned Magistrate was of the view that the case was the worst case of dangerous driving he had had to deal with in Fiji and considered a deterrent sentence was necessary.

Counsel for the Crown did not support the sentence imprisonment and suggested that a substantial fine was appropriate. In view of the Crown's attitude and the fact the appellant has no prior convictions the sentence imprisonment was set aside and a fine of $150 was imposed default six months' imprisonment. The disqualification by the learned Magistrate was confirmed. I indicated I would give reasons for allowing the appeal and varying the sentence.

As a general rule a Court tends to avoid sentences imprisonment in motoring offences unless there are aggravating factors.

Mr. Lateef referred to a number of cases of dangerous driving and dangerous driving causing death where the Court imposed fines for quite serious offences. These cases, which I will no need to refer to in this judgment, did not contain one factor which is present in the instant case and that is the deliberate action by the appellant in driving at the policemen.

The appellants driving went beyond recklessness and involved the element of intentionally driving at the policemen thereby creating an exceptionally higher degree of risk.

Where a person drives in the manner that the appellant drove on the night in question a deterrent sentence is usually an appropriate one. In R. v. Lambert 1962 Crim. L.R. page 645 a Court upheld a sentence of three months' imprisonment where the accused d continued to escape in his car by driving backwards and forwards thereby injuring two officers though of seriously in the process.

In R. v Krilarsky 1964 Crim. L.R. page 330 the accused in seeking to escape drove at a police officer on point duty. A sentence of 9 months' imprisonment was increased to 18 months. In R. v. O'Rexton 1983 Crim.L.R. page 737 the accused drove his car so that a police officer who was questioning him was dragged along the road and suffered minor injuries.

In all of these three cases referred to above the accused either had previous convictions or a police officer was injured as a result of the dangerous driving.

While no one was injured as a result of the appellant's dangerous driving and he has no previous convictions there is nothing wrong in principle in imposing a deterrent sentence, for driving in the manner in which the appellant drove his car that night. The learned Magistrate was very conscious of the fact that the appellant offered no explanation or showed any remorse for driving in the manner that he did. It would appear that had the appellant done so the learned Magistrate may have been inclined to be more lenient.

While I find myself entirely in agreement with views expressed by the learned Magistrate and in particular what on the facts before him a deterrent sentence was appropriate I cannot ignore the considered opinion of Crown Counsel that a fine would be more appropriate.

I am only convinced that a fine would be appropriate because of the appellant's previous good character and because I consider two years disqualification is in itself a punitive as well as being a deterrent measure.

The fine I have imposed is a substantial one and together with confirmation of the two years' disqualification from driving a motor vehicle indicates that this Court considers the instant case to be a very bad case of dangerous driving.

The cases I have quoted are sufficient to correct the mistaken view held by some counsel that deterrent sentences are not imposed for offences of dangerous driving.

R.G. Kermode
JUDGE

Suva,
10th March, 1978.