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Sharma v The State [2005] FJHC 226; HAM0049D.2005S (15 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM0049 of 2005S

Between:

SHELVIN SHARMA
Applicant

And:

THE STATE
Respondent

Hearing: 11th August 2005
Ruling: 15th August 2005

Counsel: Ms P. Narayan for Applicant
Mr. A. Ravindra-Singh for State

RULING ON BAIL

The Applicant applies for bail pending appeal. His appeal, which is now listed for hearing on September 23rd 2005, is in relation to his convictions on one count of dangerous driving causing death, one count of dangerous driving causing grievous bodily harm, one count of driving without a driving licence, and one count of driving without Third Party Insurance. He was sentenced to a total of 2 years imprisonment, of which he has served approximately one and a half months.

The application for bail is made by motion and affidavit. In his affidavit, the Applicant says that by the time his appeal is heard, he would have served at least one of his sentences (one for 30 days for driving without a licence) and that a refusal to grant bail would render his appeal nugatory. He says that he will remain at his uncle’s house until his appeal is heard, and that the appeal has a good chance of success.

The State opposes the appeal, saying that the Applicant has failed to show any exceptional grounds. Counsel says that the appeal is a month away, and that only a small portion of the sentence will have been served when it is heard.

The Applicant pleaded guilty on all counts in the Magistrates’ Court. The summary of facts tendered by the prosecution in the lower court, stated that on the 1st of January 2005, one Shered Sharma drove a motor vehicle to Wailoku. The Applicant and one other passenger, were also in the car. On the way the Applicant and the driver got into an argument. The driver got off and the Applicant drove instead. He drove at a high speed and on approaching a bridge, saw three people on it. One was crossing the bridge. The Applicant applied his brakes to avoid hitting the pedestrian, and hit the railings of the bridge which caused the vehicle to swerve to the right and hit the deceased and the third pedestrian. The deceased was thrown under the bridge. The other pedestrian lay on the side of the bridge. Although the Applicant and Shered Sharma (who is a nurse) tried to help the deceased, the local villagers started to assault him. When the deceased was finally taken to hospital, she was found to be dead on arrival. The injured pedestrian was admitted to the CWM Hospital where she was found to have a fracture of the right femur. The Applicant did not have a driving licence. The deceased died of head injuries.

The Applicant was a first offender. His counsel mitigated in writing, pointing to the early guilty plea, his youth, good character and the circumstances of the offending.

Sentencing remarks were delivered on the 21st of June 2005. The learned Magistrate pointed out that the maximum penalty of death by dangerous driving had been increased by Parliament to 10 years imprisonment. She took into account the Applicant’s good character, the fact that he had apologised traditionally to the family of the deceased, and his prompt guilty plea. She picked 3½ years imprisonment as her starting point, but reduced it to 2 years for his age, guilty plea, remorse, apology and good character. She sentenced him to 2 years on Count 1, 12 months imprisonment for dangerous driving causing grievous harm, 30 days imprisonment for driving without a licence and 12 months imprisonment for driving without insurance. She also disqualified him from driving for 3 years.

The Applicant now appeals against the total sentence saying it is harsh and excessive.

The principles of bail pending appeal are well-established. There is no right to bail once the offender is convicted. Bail should only be granted in exceptional circumstances, and in particular where there is a clear chance of success of the appeal, or where a substantial part of the sentence will have been served when the appeal is heard.

A substantial part of the Applicant’s sentence will not have been heard when the appeal is heard on the 23rd of September. Although he only received 30 days imprisonment for one count, he is concurrently serving his two year term on another count and the quashing of the 30 day term would not automatically decrease his total sentence. In effect therefore, a substantial portion of his sentence will be left to be served after his appeal is heard, and if his appeal fails. If it succeeds, he will only have served 2 months of the 2 year term.

The Applicant’s counsel says that the learned Magistrate failed to consider the fact that the Applicant committed the accident whilst trying to avoid a collision with another pedestrian, that he was only a learner driver and that this was a case not of recklessness but of a momentary inattention. Therefore, she said, under the guidelines in Boswell (1984) 79 Cr. App. R (cited in Sefanaia Marau v. The State Crim. App. 79 of 1990) the Applicant should have received a fine with disqualification.

Whether or not this was a case of momentary inattention as opposed to a bad example of reckless driving, is a matter which must be properly considered at the hearing of the appeal. However, given the facts as outlined by the prosecution, and the facts as accepted by the learned Magistrate, I see nothing obviously unprincipled in the learned Magistrate’s approach. Custodial sentences for death by dangerous driving cases are now the norm, since the passing of the Land Transport Act, and since the delivery of several guideline judgments of the High Court. The Applicant certainly has an arguable appeal that he deserved a non-custodial sentence. But his appeal is not bound to succeed.

The Applicant has not satisfied me that there are exceptional grounds to justify the grant of bail. This application is dismissed.

Nazhat Shameem
JUDGE

At Suva
15th August 2005