| Fiji Islands - Director of Public Prosecutions v Nadralevu - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. HAA0082J.00S
BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUT/span>
Appellant
AND:
PITA NADR
Respondent
JUDGMENT
This is an appeal by the Director of Public Prosecutions from the sentences passed by Suva MagistrCourt on 15th November 1999 for
the following offences:
ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> FIRST COUNT
Statement of Offence
CARELESS DRIVING: Contrary to sections 37 and 85 of the Traffic Act, Cap 176.
Particulars of Offence
PITA NADRALEVU on the 22nd day of Augus98 at Suva in the Central Division drove a motor vheicle onle on Rodwell Road without due care and attention.
SECOND COUNT
Statement of Offence
DRIVING UNLICENSED MOTOR VEHICLE:
Particulars of Offence
PITA NADRALEVU on the 22nd day of August, 1998 at Suva in the Central Division drove a motor vehicle on Rodwell Road when the said vehicle was not
duly licensed.
THIRD COUNT
Statement of Offence
DRIVING UNINSURED MOTOR VEHICLE: Contrary to sectionstions 4(1) and 4(2) of the Motor Vehicles (Third Party Insurance) Act, Cap 177.
Particulars of Offence
PITA NADRALEVU on the 22y of August, 1998 at Suva in the Central Division drove a me a motor vehicle on Rodwell Road when there was not in force
in relation to the use of the said motor vehicle a policy of insurance in respect of the Third Party Policy risks which complies
with the provisions of this Act.
FOURTH COUNT
Statement of Offence
FAIL TO PRODUCE DRIVING LICENCE: Contrary to sections 23(5) and 85 of the Traffic Act, Cap 176.
Particulars of Offence
PITA NADRALEVU on the 22nd day of August, 1998 at Suva in the Central Division being the driver of a motor vehicle on Rodwell Road did fail to produce
the driving licence to a Police Officer, PC 2552 Ramendra Prasad at the time or within 5 days at a Police Station.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The Learned Magistrate sentenced the Respondentis pleas of guilty as follows:
1: &nnsp;&&nsp;; aspine ff $35f $35.00 in defaultfault 35 days imprisonment.
Count 2: ; &nnsp;&; bspischdischarge urge under section 44 of the Penal Code.span>
Count 3: p; &nsp; a arge under section 44 of44 of the Penal Code.
Count 4: & p; &nsp;&nbssp;&ssp; a fi $35. defaudefault 35 t 35 days imprisoprisonment.
The grounds of appeal are that:
1.&nbssp; &nnsp;&&nsp;&nbp;;&nbpp;&nbp;
; 2. &nnsp;&&nsp;;&nspp;&nssp;&nsp;
&nGB>
3. &nnbsp; &nbs;&nnbsp; &nbbsp; Tpan>That the Learned Magistrate should have imposed a fine priso undetion of thor Ves (Tharty ance)Cap 1s7.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The grounds of appeal are in respect of the sentence on count three that is of driving an uninsured motor vehicle. The facts which
were outlined in the Magistrates Court, were that on 22nd August 1998, the complainant drove her vehicle to the city along Forster
Road. As she negotiated the roundabout, the Respondent drove past her and collided with the front side of her vehicle. On investigation,
it was found that the Appellant’s licence had expired on 19th July, and that the insurance policy had also expired on the same day.
The Respondent was told to produce a driving licence within five days but failed to do so.
The Respondent admitted these facts, and was convicted on all counts. In mitigation the Respondent said he was thyears old and worked
for thor the Nadroga Provincial Council as the driver. He also gave evidence of special reasons as follows:
p class=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “I’m only the driver and there is a Clerk in our office whob description is to see that the vehicle belonging to the the Council
is licensed and insured. We’ve only one driver and that is me.”
The Learned Magistrate considered the plea of guilty, the mitigation, an special reasons and decided not to impose the mandatory disqualification
under section 4 on 4 of the Motor Vehicle (Third Party Insurance) Act Cap 177. Instead he discharged the Respondent absolutely on both counts two and three.
Special Reasons
Section 4(1) of the Motor Vehicles (Third Party Insurance) Act states that:
“no person shall use, or cause or permit any other person to use, a motor vehicle unless there is in force in relation to the use
of that motor vehicle by such person or other person, as the case may be such policy of insurance in respect of the third party risks
as complies with the provisions of this Act.”
Section 4(2) states that:
“Any person acting in contravention of this section is guilty of an offence hall be liable to a fine not exceeding $400.00 or to imprismprisonment
for a term not exceeding one year or to both such fine and imprisonment and a person convicted of an offence under this section shall
(unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer
period of disqualification to be disqualified from holding or obtaining a driving licence for a period of 12 months from the date
of conviction.”
The provisions of these sections are clear in their intention. Once a person is convicted of an offence undction 4(2) of the Act,
the the Magistrate must disqualify him or her for at least 12 months unless there are special reasons not to. Clearly the Legislation intends to protect innocent victims from drivers who may
be involved in accidents but who have no means to compensate the injured. The Motor Vehicles (Third Party Insurance) Act provides for a system of compulsory third party insurance, and provides for mandatory disqualification if drivers disobey the provisions of the law.
To fulfil the same legislative purpose, special reasons are not easy to prove. In JonesEnglish (1951) 2 ALL ER 853, it was held that the othe onus of showing special reasons, is on the accused. In the oft-cited case of Whittal -v- Kirby (1946) 2 ALL ER 552, it was held that special reasons were reasons special to the offence and not to the offender, that they were not mitigating circumstances,
that they should not amount to a defence in law, and were those considerations which a court ought properly to take into account
for the purpose of sentencing.
One example of a special reason might be driving in a medical emergency. Another might be driving onad used rarely by others (See
Wilkinsons Road Traffic Ofic Offences p.664). The good character of the defendant, the hardship he might suffer as a result of the disqualifications, or the fact that
he would lose his job, are not special reasons (see Whittal -v- Kirby (supra). It was held in Rennison -v- Knowler (1947) 1 ALL ER 302, that an honest but mistaken belief that the vehicle was insured, was not a special reason. However where the driver has been misled who believing that the vehicle was insured, special reasons might exist.
In Kandasami -v- Reginam 10 FLR 206 the appellant was partner in a taxi company. The company owned four vehicles. One of the vehicles had been under repair
when the appellant drove it from one garage to another for further repairs. The insurance policy had lapsed 3 weeks before the appellant
drove the vehicle, but the appellant was unaware of this because another partner in the firm was responsible for renewing the insurance
policy. The partner was not aware that the appellant intended to drive the vehicle and had not renewed the policy because the car
was under repair.
The Magistrate disqualified the appellant from driving for twelve months. On appeal Mills-Owen C J said at page 207:
“The authorities.... establish that two matters have to be borne in mind when consng the question of special reasons, namely whether
such reah reasons exist as a matter of law, and if so, but only if so how the discretion of the court should be exercised in the
particular circumstances of the case.”
His Lordship referred to the decision of the Divisional Court in Knowler -v- Rennison (supra), which heat:
“The question whether on the facts found by the trourt it is open to be held that special reasons exist, is one of law; belief however
honestonest, could not be regarded as a special reason unless based on reasonable grounds.”
Mills-Owens C.J. found that although the appellant honestly thought that the vehicle was insured, he had taken no steps to ensure
that the management of the firm had been conducted properly in insurance matters, and that as a partner he had an equal responsibility
in this respect. The appeal was dismissed.
On the basis of these authorities, it seems clear that the ndent did not give evidence of a special reason when he referred to the
fact that he would ould lose his employment and suffer hardship if he was disqualified from driving.
What of the evidence that the person responsible was a clerk who failed to do his job? In Kandasami (supra) the decision might have been different if the appellant had been a mere employee who had no authority to check on insurance
matters. In this case the Respondent was employed as a driver and was in no position of authority at all. It was reasonable to believe
that the clerk (whose responsibility it was to insure the vehicle) had done his job. I find therefore on the evidence of the Respondent
in the court record that the Learned Magistrate correctly decided that special reasons existed because the Respondent’s belief that
the vehicle was insured was both honest and reasonable. This was particularly so because as a mere driver employee the Respondent
was in no position of authority over the clerk to check whether all insurance matters had been conducted satisfactorily.
For these reasons I find that the Learned Magistrate did not err in finding special reasons in respect of count 2 of targe sheet.
The absolute discharge
The State submits that it was not open to the Learned Magistrate to discharge the Respondent absolutely.
Section 44(1) of the Penal Code provides:
“Where a court by or before which a person is found guilty of an offence, not being an offence for whifixed sentence is prescribecribed by law of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is
inexpedient to inflict punishment and that a probation order ...... is not appropriate, the court may, with or without proceeding
to conviction, make an order discharging him absolutely, or if the court thinks fit, discharging him subject to the condition that
he commits no offence during such period, not exceeding twelve months from the date of the order ............”
Does section 4(2) of the Motor Vehicles (Thirdy Insurance) Act prescribe a sentence “fixed by law”?
The various decisions of the High Court on whether section 44 of the Penal Code can be used for any offence, regardless of whether or not the sentence is in mandatory form, provided a conviction has not been entered,
is of some relevance in this case, although the Learned Magistrate entered a conviction, and discharged the Respondent absolutely
after conviction.
What is a sentence “fixed by law”? Fatiaki J in the State -v- Kishore Kumar Revision No. 5 of 199id it is a sentence which gich gives no discretion at all to the sentence to give less or more than the sentence
prescribed. He suggested that offences providing for a discretion not to disqualify if special reasons existed, were not offences
for which sentences were fixed by law.
Pain J in State -v- Alifereti Nakau Togainal Appeal No. HAA.130 of 1997 held that the words “shall be sentenced to imprisonment in t in accordance with the Third Schedule
of this Act” under section 8 of the Dangerous Drugs Act created a sentence which was fixed by law.
A discretion to dismiss the charge under the Probation of Offenders Act 1907 was upheld on a charge of drian uninsured vehicle with
aith a “special reasons” provision, in Quelch -v- Collett (1948) 1 KB 478. This decision was referred to and relied upon, by Fatiaki J in Kishore Kumar (supra) (at page 8).
The real issue is whether the sentencer has a discretion given by the legislation not to give tndatory sentence, but instead to give
an alternative. It apIt appears that section 4(2) does give the court that discretion. Although the discretion must be based on legal
principle, in finding special reasons, it is nevertheless a discretion not to disqualify, and as such the sentence under section
4(2) is not a sentence fixed by law.
Of course with or without disqualification, the court must consider whether a fine or imprisonment should be imposed. It is inect
of this limb of sectionction 4(2) that section 44 of the Penal Code may be considered. It is undeniable that there is a discretion to impose either fine or imprisonment, and a discretion to adjust
the amount of the fine, or the length of the imprisonment. That discretion has not been removed by the Legislature. As such in principle
a Magistrate may with or without disqualification, consider a discharge on sentencing for a section 4(2) offence.
It would therefore appear, prima facie, that it is open, in law to order an absolute discharge for an offence committed under section
4(2).
The question of whether a section 44 discharge was appropriate in all the circumes is a different one. The offence is one of some
seriousneousness, and the maximum sentence of $400 fine or imprisonment for a maximum term of one year, is high compared with other
traffic offences.
However, in this case the Learned Magistrate thought that the wrong person had been charged and that the Respondent was in no way
respon for the offence. He clearllearly thought that it was unjust to inflict any punishment and decided to discharge the Respondent
absolutely. I do not think that he erred in principle, or that the discharge was wrong in law. Section 4(2) imposes a two-step sentencing
process. Firstly the Magistrate must impose the mandatory disqualification unless there is evidence of special reasons and secondly
he/she consider whether a sentence of a fine or imprisonment should be imposed. In considering the second step the Magistrate may
consider whether punishment should be inflicted, and if not whether a section 44 discharge might be appropriate.
There are a number of authorities dealing with the sorts ofations where a discharge might be appropriate. In O’Toole (1971) Cr App R 206 an absn absolute discharge was held to be justified where the accused was “morally blameless”. In Smedleys Ltd -v- Breed (1974) K C 839, it was held to be appropriate where the offence was trivial and the public interest was not served by inflicting
punishment on the offender. Absolute discharges are however to be given in exceptional circumstances. As Scott J said in Commissioner of Inland Revenue -v- Atunaisa Druavesi Criminal Appeal No. HAA012 of 1997, the powers conferred by section 44(1) of the Penal Code should be exercised sparingly and after balancing all public interest considerations.
I consider that the Learned Magistrate did not err in exercising his discretion to grant an absolute discharge and in deciding not
tose a fine or imprisonment, ent, on count 2.
This appeal is therefore dismissed.
NAZHAT SHAMEEM
PUISNE JUDGE
At Suva
21 November 2000
HAA0082j.00s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2000/122.html
