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Lal v The State [2004] FJHC 102; HAA0038.2004 (19 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No. HAA0038 of 2004

BETWEEN:

AGEET LAL
f/n Shiu Bali
Appellant

AND:

STATE
Respondent

Counsel for Appellant - Mr. G. O’Driscoll
Counsel for State - Ms. L. Chandra

Date of Hearing: 19th May, 2004
Date of Judgment: 19th May, 2004

EX TEMPORE JUDGMENT

The appellant was convicted on one count of driving a motor vehicle with excess blood alcohol on the 1st of January, 2004. This was his second offence. The maximum penalty is a fine of up to $5,000.00, 5 years imprisonment and disqualification from 6 months to 4 years. He was sentenced on the 3rd of February, 2004 to a fine of $3,000.00 (in default 12 months imprisonment) and disqualified from driving for 18 months.

He now appeals sentence. The grounds of appeal are brief. He claimed that the sentence is excessive and unduly harsh. In many respects the State concedes that to be so.

I note there is a need for a tariff decision on drunk driving but this is not the occasion to do so. The appellant acknowledges his offending, wants to pay a fine, serve a disqualification period and move on in his life putting these matters behind him. Accordingly despite the State’s invitation to consider the range of available sentences and a collateral issue concerning the suspending of sentences pending appeal, I decline to do so. This is not a State’s appeal. The appellant’s views of disposal of his case must take precedence on this occasion. However, I invite the DPP to consider another more suitable occasion when these issues can be addressed.

The Law

Penalties for drunk driving in Fiji are detailed in the Land Transport Act and in accordance with a schedule:

For a first offence the penalty is $2,000.00, 2 years and a mandatory disqualification between 3 months to 2 years.

For a second offence $5,000.00, 5 years and a mandatory disqualification between 6 months to 4 years.

For an offence of 2 or more convictions within the 5 years preceding the instant offence the penalty is $10,000.00, 10 years and a mandatory disqualification between 12 months to 5 years.

This scheme of penalties is indicative of Parliament’s view and quite rightly so that drink driving is unacceptable. The increasing range of penalties is there to remind citizens that if they drink and drive and accept that risk then they can expect increasingly harsh and stern sentences.

When will the message sink in. Alcohol and driving don’t mix. To quote the New Zealand vernacular from a drink driving campaign if you drink and drive you’re a bloody idiot.

That must be especially so in a city with such a good and cheap taxi system.

However, I must apply the law. For a second offence the penalties are $5,000.00, 5 years imprisonment and mandatory disqualification between 6 months to 4 years.

I must disqualify you. However, unlike other jurisdictions Fiji has no statutory scheme of avoiding mandatory disqualification or ameliorating its harsher aspects by granting work related temporary licences. As my sister Justice Shameem observes in State v Prasad HAA0038 of 2003 is:

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

In my view these factors will determine the appropriate length of disqualification. In his sentencing the learned Magistrate imposed a fine for a second offence of $3,000.00. This was in stark contrast to the fine for the first offence of $100.00. In addition the appellant was disqualified for 18 months. This is in contra distinction to his first disqualification of 3 months back in February of 2000.

While an inevitable increase in penalty is to be expected for a second and subsequent offending, in my view there is a stark and unacceptable increase in the range of penalties between the first and second offending. Further in my view the penalties given for the first offending were far too light. In my view they should have been closer to a fine of between 500 and a $1,000.00 and a disqualification for a six month period.

However, the learned Magistrate did not consider proper principles. His sentence is understandably brief. In its brevity and lack of reasoning it is wrong. It is unbalanced. It is this error in principle that results in an excessive and harsh penalty.

You are a second offender. You went out and partied on new year’s eve. You drank. You chose to drive. When you do that you not only put your own life at risk but that of other road users. You also put at risk your family's livelihood and your job. You must learn the lesson. From now on if you choose to drink take a taxi.

In accordance with the principles detailed in Prasad:

1. There was no criticism in your standard of driving. This was a stop at a random check-point.

2. Apart from your drink driving offence in November of 2000 you have otherwise good character.

3. You are in good employment. Driving provides for your livelihood within that employment.

4. Because you are in employment you can afford to pay a fine.

Conclusion

The sentence in the Court below is quashed. It is substituted with:

1. A fine of $1,000.00.

2. Disqualification from holding, obtaining or using a driver’s licence for a period of 10 months commencing now. In that regard I note I would have imposed a 12 months’ disqualification period but you have served approximately 1½ months of your original disqualification.

3. In default of payment of the fine 6 months imprisonment.

I am also going to ask that the file be marked final warning. What that means is that if you offend again and drive with access blood alcohol you must expect a sentence of imprisonment to be the most likely outcome. Don’t drink and drive again.

Gerard Winter
JUDGE

At Suva
20th May, 2004