| Fiji Islands - Jiten Kumar v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction
CRIMINAL APPEAL NO. 0016 OF 1996
Between:
JITEN KUMAR
s/o Arendra Nath
Appellant
AND:
THE STATE
Respondent
Mr. A. Kohli for Appellant
Ms. L. Laveti for Respondent
REASONS FOR DECISION
On the 4th of April 1996 the appellant's appeal against sentence was allowed in an interim judgment delivered orally by the Court. I now provide written reasons
for allowing the appeal.
On the 11th of March, 1996 the appellant was convicted in the Savusavu Magistrate Court after he pleaded guilty to an offence of Driving Whilst Under the Influence of Drinks and a second count of Careless Driving.
Upon his conviction, the trial magistrate sentenced the appellant to 12 months imprisonment on Count 1 and fined him $20.00 on Count 2.
The brief facts of the case are that the appellant who is a taxi-driver from Seaqaqa, had gone with some friends to spend a night in Savusavu on what might be considered a private jaunt. That night whilst driving in Savusavu Town after having had some drinks he missed his motel turn-off and on executing a 'U' turn in the road the appellant's taxi was struck from behind by a passing vehicle. The appellant was later examined by a hospital
doctor and certified incapable of driving.
The trial magistrate in sentencing the appellant said:
"The accused is a taxi driver. A taxi driver driving while drunk is a serious thing. The accused is a first offender. But drunken
driving has to be dealt with deterrent punishment."
The appellant appealed against the severity of the sentence of imprisonment imposed, on the ground firstly, that it was wholly disproportionate to the gravity of the offence having regard to all the circumstances, and secondly, was wrong in principle in so far as it was inconsistent with sentences for similar offences imposed by the same Court during the
same period.
As to the former ground, learned counsel for the appellant submitted that the trial magistrate had misconstrued the circumstances
of the offence, and been unduly influenced by the fact that the appellant was a taxi-driver by occupation.
With that submission I entirely agree. There is not the slightest suggestion that the appellant was at the material time performing
his professional duty as a taxi-driver carrying paying passengers. Nor is it suggested that anyone was hurt in the accident that
occurred. What's more the alcohol content of the appellant's blood and urine was not disclosed to the trial magistrate although samples
were apparently taken at the time.
Needless to say any sentence imposed upon an offender must bear some relationship to the facts of the case and not be out of proportion
to the gravity of the offence.
As for the second ground of appeal, counsel referred to sentences passed by the Labasa Magistrate Court in 4 similar cases over the preceding 12 months, for offences of Driving Under the Influence of Drinks and in which, in each instance, a suspended sentence of imprisonment was imposed together with a fine and a short period of disqualification.
Counsel also drew the Court's attention to the judgment in Michael Parma Nand v. R. 12 F.L.R. 45 where Knox-Mawer P.J. in reducing the sentence imposed in that case said at p.46:
"It is desirable that the Supreme Court, through its appellate jurisdiction, should, whenever feasible, ensure that there is
some measure of uniformity in the sentences imposed in the Court below."
State Counsel for her part conceded that an immediate custodial sentence was not warranted for a first offender with an unblemished
driving record and having regard to the circumstances of the offence.
Accordingly the appeal was allowed, the sentence of 1 year's imprisonment was quashed and in substitution therefor a sentence of 9 months imprisonment suspended for 2 years was imposed. The fine and disqualification not being challenged were ordered to remain unchanged.
D.V. Fatiaki
JUDGE
At Labasa,
22nd May, 1996.
Haa0016j.96s
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