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State v Prasad [2003] FJHC 146; HAA0038J.2003S (16 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0038 OF 2003S

Between:

STATE
Appellant

And:

JITESH PRASAD
Respondent

Counsel: Mr. P. Bulamainaivalu for State
Mr. V. Nathan for Respondent

Hearing: 3rd October 2003
Judgment: 16th October 2003

JUDGMENT

The Respondent was charged with the following offence:

Statement of Offence

Driving Motor vehicle whilst there is present in the blood a concentration of alcohol in excess of a prescribed limit: Contrary to Sections 103(1)(a) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

JITESH PRASAD s/o Lachman Prasad on the 6th day of June, 2003 at Nasinu in the Central Division, drove a motor vehicle registration number EC 441 on Nokonoko Road whilst there was present in 100 millilitres of his blood a concentration of 112.2 micrograms of alcohol which was in excess of the prescribed limit.

He pleaded guilty and was sentenced to a fine of $300.00 and a “partial disqualification” from holding or obtaining a driving licence for 3 months. The State now appeals against the order for disqualification.

The case was called on the 9th of July 2003. The Respondent pleaded guilty and the facts were outlined. They were that on 6th June 2003 at 1.15am a police officer stopped the Respondent and tested his breath for alcohol. At the time the Respondent had been driving his taxi at the Nokonoko Road. The test result was that he had 7410.53 micrograms of alcohol in his breath sample. His blood was tested at the police station and found to contain 112.2 micrograms of alcohol. Both tests revealed that the Respondent had consumed alcohol in excess of the prescribed limit. He was charged. He accepted these facts, and four previous convictions, none of which were for driving offences.

In mitigation, he expressed remorse, and said that he was supporting his family by driving his taxi. The learned Magistrate sentenced as follows:

“1. Accused is given a fine of $300.00 in default 30 days imprisonment.

2. Fine to be paid within 30 days.

3. The accused is given a partial disqualification for holding and obtaining a driving licence for the next 3 months on the condition that he can only drive taxi from 6.00am to 6pm daily to help support his family.”

The petition of appeal of the Director of Public Prosecutions sets out the following grounds of appeal:

“(a) That the learned Magistrate erred in law and in fact when he ordered a partial disqualification, when any disqualification must be mandatory under section 114 of the Land Transport Act No. 35 of 1998.

(b) That the learned Magistrate erred in law and in fact when he failed to consider that the Respondent had breached the order binding him over in the sum of $100.00 to keep the peace and be of good behaviour for twelve (12) months, in the case dated 23/8/2002.”

At the hearing of this appeal, the Respondent was represented by counsel. However he said he was not ready to argue the appeal, and I gave him time to make written submissions ordering him to file them by 9th October 2003. No submissions were filed, and I have proceeded to judgment without them.

The disqualification

Section 103(1)(a) of the Land Transport Act 1998 provides:

“A person who ... drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his blood ... commits an offence.”

Section 114 of the Act provides that the schedule to the Act fixes the penalties in respect of the offences created by the Act. The schedule to the Act provides, in respect of an offence under section 103(1)(a) of the Act.

Section Offence Prescribed Penalty

S.103(1)(a) (a) first offence $2000/2 years and

mandatory disqualification from 3

months to 2 years.

In State –v- Kameli Ratuvou Crim. App. No. HAA0060 of 2002, I made the following (obiter) remarks about these penalty provisions:

“Section 114(2) of the Act provides that “the court may impose a fine up to the maximum amount shown or a term of imprisonment or both such fine and imprisonment.” The word “may” creates a discretion. This discretion may be exercised by imposing a fine in any sum up to the maximum, but may also be exercised by not imposing either fine or a period of imprisonment. What is mandatory is a period of disqualification. The minimum mandatory term of disqualification (on first conviction) is 3 months. The Magistrate has a discretion to impose more than 3 months but may not impose less.”

The legislature has provided for no power to order partial disqualification. This is logical. The order for disqualification is a sentence which acknowledges that a driver is a safety risk for other road users. By allowing him/her to use the road during some hours of the day, how is the safety of other road users protected? In this case, the learned Magistrate ordered that the Respondent could drive between 6am and 6pm daily, the very hours the roads are busiest!

The courts do not have powers to order disqualification between certain hours of the day. They do not have powers to disqualify from driving certain classes of vehicle. When a person is disqualified from driving, he is taken off the roads for the period of time specified.

The length of disqualification depends on the following factors:

1. The standard of driving shown in the offending.
   
2. Any previous convictions for traffic offences.
   
3. The need to protect the public from dangerous/careless/drunk drivers.
   
4. Good character.
   
5. Serious hardship to the family.
   
6. Driving providing the source of livelihood for the offender.
   

(R –v- Thomas (K) 78 Cr. App. R. 44, R –v- Hart; R –v-Jackson (1970) RTR 165; Reynolds –v- Roche (1972) RTR 282).

These factors will determine the length of disqualification.

In the case on appeal, there were extenuating factors which justified the order of the shortest term of disqualification possible. However the learned Magistrate had no powers to order that the Respondent could drive during the day. The order for “partial” disqualification is quashed. The Respondent is disqualified from driving from today (16/10/03) for a period of 3 months. He may not drive at any time during the 3 month period.

Binding Over

On 23rd August 2002, the Respondent was bound over to keep the peace for 12 months, in the sum of $100. The State submits that because the Respondent re-offended within the 12 months, the $100 must now be forfeited.

Section 41(1) of the Penal Code provides:

“A person convicted of an offence not punishable with death may, instead of or in addition to any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the court, not exceeding two years, and may be ordered to be imprisoned until such recognizance, with sureties if so directed, is entered into; for a term longer than six months:

Provided that no order shall be made under this section where the person convicted has been sentenced to a term of imprisonment of more than six months.”

The power to bind over to keep the peace is a very old power, contained in the English Justices of the Peace Act 1361, and, more recently in the Justices of the Peace Act 1968 (U.K.). The power at common law did not depend upon a conviction. However the Penal Code power requires a conviction to be entered before a binding over order is made under section 41(1). The common law does however provide that the recognizance is forfeit where it is proved on a balance of probabilities that the offender has not kept the peace. (R –v- Marlow JJ ex p O’Sullivan (1984) QB 381.)

In this case there is no doubt at all that the Respondent, by driving whilst drunk, was in breach of the order. It is unfortunate that the prosecutor in the Magistrate’s Court did not bring the breach to the attention of the presiding Magistrate. However, under section 116 of the Criminal Procedure Code, the Respondent is entitled to appear before the Magistrates’ Court at a date to be notified by the Court, to show cause why the court should not order payment of the penalty.

Result

This appeal succeeds. The order for disqualification is quashed and substituted with disqualification from holding or obtaining a driving licence for a period of 3 months from 16/10/03.

The case is remitted to the Magistrates’ Court to consider forfeiture of the recognizance of $100 in the binding over order of 23/08/02.

Nazhat Shameem
JUDGE

At Suva
16th October 2003