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Regina v Deo [1979] FJSC 38; Criminal Appeal 51 of 1979 (15 August 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction


Criminal Appeal No. 51 of 1979


BETWEEN


REGINA
Appellant


AND


SAHA DEO
s/o Jodha
Respondent


Mr. D. Williams, Counsel for the Appellant
Mr. C. Gordon, Counsel for the Respondent


JUDGMENT


For convenience I shall deal with Criminal Appeals No. 49 and 51 of 1979 together. They both concern the offence of careless driving. They concern the offence of careless driving, they were both dealt with by the same magistrate on the same day. After initially pleading not guilty both accused changed their pleas and pleaded guilty. In C.A. 49/79 the accused, a bus driver, drove his bus straight across a main road without regard to the complaint's car being driven along the main road, and an accident was prevented only because the complainant braked violently. In C.A. 51/79 the accused turned straight across in front of the complainant (who was driving in the opposite direction on the same road) to turn into a side road, and an accident resulted. Careless driving can range from an error of judgment to dangerous driving, and in both cases the accused are perhaps lucky not to have been charged with dangerous driving.


Both accused were first offenders, both had many years of driving behind them, and the magistrate in C.A. 49/79 conditionally discharged the accused, and in C.A. 51/79 convicted him and discharged him under section 38 of the Penal Code.


The Crown appeals against both orders of the magistrate on the grounds that the sentences are manifestly inadequate and wrong in principle.


In C.A. 49/79 the magistrate seemed to give as one of his reasons for his sentence that there had been no accident, but this was due only to violent braking by the complainant and was really nothing in favour of the accused. In C.A. 51/79 the magistrate reasoned that no one was injured - again no thanks to the accused - and said that people considered "Waterfront as the major road. There is no signs on the road to obviate this confusion". Considering the sketch plan submitted and lack of other evidence before the court, there was no basis for the magistrate's remarks. The fact that there were no signs at the junction, far from favouring the accused, makes it clear that there was no basis for assuming that he had any right of way, and cannot in any way excuse his action in turning right across in front of the complainant in a dangerous manner.


The question of whether and in what circumstances it is appropriate to use Section 38 of the Penal Code, was dealt with at some length by Stuart J. in the case of R v Paras Ram C.A. No. 21 of 1977 and in a number of other cases dealt with by him at the same time. He relied fairly heavily on Cross on the "English Sentencing System" (1971). Cross was referring mainly to absolute discharge, but the reasoning can be applied equally well to any order under section 38 of the Penal Code. It is clear that the powers granted under section 38 should be exercised relatively rarely and certainly not in cases like the present cases where there was clear evidence of bad careless driving on the part of the accused.


I therefore set aside the sentences in both cases, convict both accused of the offences charged and fine them each $25 or 2 weeks imprisonment in lieu.


The Crown also asks for costs against the accused, but there is nothing to indicate that these were asked for in the magistrate's court and in the absence of any such request, I decline at this stage to order costs.


Sgd. (G.O.L. DYKE)
JUDGE


LAUTOKA
15 August, 1979


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