Amos v Public Prosecutor [2001] VUSC 9; Criminal Appeal Case 005 of 2000 (20 February 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Appellate Jurisdiction)

Appeal Case No.5 of 2000

BETWEEN:

p class="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> SOLIP AMOS

Appellant

AND:

THE PUBLIC PROSECUTOR

Respondent

Coram: Before Mr Justice Oliver A.ak

Ms Cynthia Thomas – Clerk

Mr Saling N. Stephens for the Appellant

1"> Ms Kayleen Tavoa for the Respondent

JUDGEMENT

ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1"> The appellant was convicted in the Senior trate’s Court sitting in Santo on 13^th October ber 2000. He was charged with careless driving contrary to section 14 and with drunk driving under section 16 of the Road Traffic Act CAP.29. The trial of the matter took place in Lakatoro, Malekula. The Appellant was fined VT15,000 or in default to imprisonment for 4 months on the first count. On the second count the Appellant was fined VT50,000 or in default to imprisonment for 10 months. In addition to those fines the Appellant was disqualified from driving for a period of 2 years. The Appellant appeals against those sentences on the grounds that they were manifestly excessive.

<

The maximum penalty under section 14 of the Act is VT50,000 fine prisonment not exceeding 6 ng 6 months or to both. As regards the penalty under section 16 of the Act it was submitted to me that as no penalty was provided under that section that the Court should have applied section 36(3) of the Interpretation Act [CAP.132]. It reads:-

“Where an Act of Parliament omits to prescribe a penalty f offence created by the Acte Act or for a contravention of a provision of the Act the penalty shall be a fine of VT5,000 or imprisonment for 1 year or both”.

But I draw attention of both counsels to section 53(3) of the Act which reads:an>

“Any person convicted by a competent court of offences against sections 16, 41(1), 51 or 52 shall be liable to a fine of not exceeding VT100,000 or imprisonment not exceeding 1 year, or to both such fine and imprisonment.”

It is clear to me that that is the provision used by the Senior Magistrate. Section 36(3) of the Interpretation Act is therefore irrelevant.

The Appellant is an Inspector in the Vanuatu Police Force. A character reference waduced on his behalf balf by Major J. S. Aru, Acting Commander of Northern District, Police. At the time of the accident the Appellant was Head of Traffic Section. This in my opinion weighed heavily against the Appellant so much so that the Senior Magistrate saw fit to award up to half of the maximum fine for drunk drive offence under section 16 of the Act. It is common knowledge that the Police have from time to time, over and over again advised the general public against driving whilst under the influence of alcoholic liquor. These advices have often come from the Traffic Section of the Police. For the Northern region, the Appellant being the Head of that section. If despite those advices the Police themselves go and do likewise, as here, the Head of the section itself, then a high degree of responsibility has to be imposed so as to deter others from doing the same thing.

For those reasons I see nothing excessive about the fine ipect of the careless drivinriving charge. Further I see nothing manifestly excessive about the fine imposed in respect of the drunk and drive offence under section 16 of the Act. I accordingly uphold those fines and the period fixed in the event of default.

However, it is my opinion that the additional penalty of suspension of driving licence for a period of 2 years is excessive. For a first offender like the Appellant it was improper to impose this penalty. It is common knowledge that for the Police to carry out its duties effectively they have to be mobile. That involves driving of vehicles.

For this reason I allow the appeal and accordingly I vacate the additional penalty of suspension of licence of the Appellant.

<

I further order that the fines imposed by the Court below be paid within three (3) months from the date of the Appellant' re-instatement to police duties.

DATED at Luganville this 20^th day of Febru2001.

lass="MsoNoMsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> BY THE COURT

p class="Mss="MsoNormal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> OLIVER A. SAKSAK

Judge