Republic of Nauru v Tuani [2023] NRDC 4; Criminal Case 53 of 2022 (9 January 2023)

IN THE DISTRICT COURT OF NAURU
Criminal Jurisdiction
Criminal Case No. 53/2022

THE REPUBLIC OF NAURU

-v-

ISSAC TUANI

Before: RM. Neil Rupasinghe
Prosecutor: Ms K Isimerea
Defence: Mr Thomson Lee

Date of Sentence: 9^th January 2023

SENTENCE

Catchword: Sentence— Driving under the influence of liquor contrary to section 69(1) & (2)(a) Read with section 81 of the Motor Traffic Act 2014.

1. The accused pleaded guilty to one count of driving under the influence of liquor contrary to sections 69(1) & (2)(a) of the Motor Traffic Act 2014 after the charge was read, explained and understood by him.
   
2. Summary of Facts suggested that Issac Tuani, on the 12^th day of January 2021, at Denig District, drove a Black and White truck registration AAB830 on a public highway while intoxicated. The proportion of alcohol count in his breath was 0.262 grams which exceeded the prescribed limit of 0.0525 grams of alcohol per 210 litres of breath.
   
3. Based on the plea of guilt, this court formally convicts the accused for the charge of driving under the influence of liquor contrary to sections 69(1) & (2)(a) of the Motor Traffic Act 2014.
   
4. This court prefers to mention Section 79 of the Motor Traffic Act 2014, which has described the Penalties for the relevant offence and which provides as follows: -

"(1) Any person who is convicted of an offence under Section 69(2) is liable to:

(a) for a first offence: (i) mandatory suspension of his or her driver's licence for 6 months; and (ii) a maximum fine of $1,000; or (iii) imprisonment for 6 months;
(b) for a second offence: (i) mandatory suspension of his or her driver's licence for 12 months; or (ii) a maximum fine of $3,000; or (iii) imprisonment for 12 months; and
(c) for a third offence: (i) mandatory suspension of his or her driver's licence for 5 years; and (ii) a maximum fine of $10,000; or (iii) imprisonment for 3 years."

5. No mitigation filed by the Defendant. There is no harm or damage to the general public by Defendant's conduct as the cause of action is a police booking. Nevertheless, on the other hand, this court would not simplify the Defendant's behaviour due to the threat he created to himself and the lives of the general public who use the road facilities simultaneously.
   
6. Further, I am mindful that the convict has aided in minimising the use of the Court's resources by pleading guilty at the very first opportunity, which is an excellent deal over public tax monies.
   
7. The Defendant cooperated with the police during the investigation by undergoing a breathalyser test and detention at the police station. This court would consider his conduct during the investigation as a sign of remorsefulness over the offence.
   
8. On the other hand, this court noticed that the level of alcohol in the Defendant's body was, amounting to 0.262 grams of alcohol per 210 litres of breath. However, these courts will not consider mere intoxication as aggravating fact as it is itself an element of the offence but the level of intoxication or alcohol at the time of the offence.in this case, it is almost five times the prescribed limit, which is aggravating.
   
9. Further, even though there is no recorded harm crime, this court is mindful of the threat created by the defendant’s conduct, which is aggravating, especially to children who play and move by the roadside without giving much attention to vehicles. And the defendant took the risk of driving a truck, a large car that also aggravated and attracted the high end of the fines.
   
10. In the matter of R v Baylon Cook, the Defendant was convicted and fined $700 by the court after the Defendant's plea on a count of driving intoxication. He had cooperated with the police and pleaded guilty at the first opportunity.
    
11. This court observes that the Nauruan magistrate courts have attempted to form a rational connection between the amount of alcohol and recklessness. Accordingly, for higher amounts of alcohol in the offence of driving under the influence of liquor, contrary to sections 69(1) & (2)(a) of the Motor Traffic Act 2014, the court imposed higher fines.
    
12. In R v Menke[2021] NRDC 31; Criminal Case 31/2021, the court imposed a $ 700 fine and mandatory suspension of driving licence for six months. This court is more interested in the judicial dicta describing the legal concern over drinking and driving. In Para 5 and 6, the court has stated;
    

"That this was a reckless act. You knew you had been drinking and you decided to drive, and you were reckless as to whether the alcohol content in your breath was under the prescribed limit or not. There was no harm caused to anyone by this offence, so the measure of the harm is not the harm caused but the harm that could have been caused by your driving whilst under the influence. The more a person is intoxicated, the more dangerous he becomes to himself and others. The level of alcohol in your breath is 61% higher than the prescribed amount of alcohol. I would rate your offending therefore at the serious end of the scale."

13. The stance mentioned above has been justified by section 277 of the crimes act 2016 and which provides as follows;

"Kind of Sentences
Sec: 277.

Where a court finds a person guilty of an offence, it may, subject to any particular provision relating to the offence and subject to this act, do any of the followings;

(a) record a conviction and order that the offender serve a term of imprisonment;
(b) with or without recording a conviction, order the offender to pay a fine;
(c) record a conviction and order the discharge of the offender;
(d) without recording a conviction, ordering the dismissal of the charge for the offence; or
(e) imposed any other sentence or make any order that is authorised by this or any other written law of Nauru"

14. This court is mindful of rehabilitating a convict, and the public's safety is crucial; these two factors are two sides of the same coin. However, Rehabilitation does not have meaning when public safety is in danger. There is no public safety if the judiciary fails to rehabilitate the convict. They are also part of the same society.
    
15. This court strictly believes that the judiciary should not allow or facilitate the perpetrators to buy mercy or leniency by way of fines but should always impose a sentence that bears the condition of deterrent and rehabilitation that is applicable and possible. Further, it differs from the formal imprisonment provided in the penalty sections.
    
16. Therefore, conclude that imposing suspended imprisonment always would not conflict with the penalty section as the court is issuing a prescribed fine and extra condition under Sections 279 and 277 of the Crimes Act 2016.

Section 279 (i) of the crimes act 2016 of Nauru has provided as follows;

"Sec: 279. Sentencing considerations-general

(I) In deciding the sentence to be passed, or the order to be made, in relation to a person for an offence against a law of Nauru, a court shall impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence."

17. Therefore, after referring to the norms, principles & aspirations of sentencing, the personal interest of the convict and the general public's safety, this court concludes that suspended imprisonment and a fine would be adequate for absolute determination of all the sentencing concerns.
    

The Sentence

18. This court has considered the seriousness of this offence, the aggravating factors and the mitigating factors, and imposed;
    
    • (1) $ 800 fine. In default, to be imprisoned for a term not exceeding the lower of (a)one day for every 80 cents of the fine remaining unpaid OR (b) 6 months. Eighty (80) days to pay the fine.
      
    • (2) Further, the driving licence of the convict will be suspended for six (06) months from today.
      
19. The convict has 21 days to appeal.
    

Neil Rupasinghe
(Resident Magistrate)