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Serutanoa v State [2012] FJHC 1134; HAA007.2012 (31 May 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA007 of 2012

BETWEEN:

ORISI SERUTANOA
Appellant

AND:

THE STATE
Respondent

BEFORE : Mr. Justice Paul Madigan
COUNSEL : Mr. K. Marawai for the Appellant
Ms. M.Fong for the Respondent

Dates of Hearing : 3, 10 and 25 May 2012
Date of Judgment : 31 May 2012

JUDGMENT

1. In the Magistrates Court held at Savusavu on the 16th November 2011 the appellant was convicted after trial of two offences, being driving a motor vehicle with excess alcohol in the blood, contrary to sections 103(1) and 114 of the Land Transport Act 1998 and secondly of careless driving, contrary to section 99(1) of that Act. He was sentenced on the 15th December 2011 to a fine of $1000 and 16 months' imprisonment with a disqualification from driving for 12 months on the first charge and a fine of $400 and two months' imprisonment on the second charge. The aggregate sentence of 18 months was suspended for three years.
   
2. The appellant has filed a timely appeal against both conviction and sentence.
   
3. In his appeal against conviction he submits that:
   

   (i) The learned Magistrate erred in fact and law in entering a conviction considering all the circumstances of the case and the evidence adduced in Court.

   (ii) The Magistrate failed to properly analyse the evidence and did not take into consideration the corroborative evidence of the defence witnesses.

   (iii) The Magistrate accepted and placed undue weight on the prosecution evidence rather on the defence evidence.

4. In his appeal against sentence, he submits;

(i) The sentence is harsh and excessive

(ii) The Magistrate failed to take into consideration the mitigating fact that the appellant had been suspended from his employment as a Secondary School Principal since June 2010

(iii) The sentence is inconsistent with sentences passed on offenders

facing the same charges.

Both the appellant and the State were ordered to file written submissions on the appeal by 24 May 2012. Neither the appellant nor the State complied with the order. Both parties addressed me orally on the appeal.

Brief Facts

5. The appellant was at the time of the offence the Principal Education Officer for Cakaudrove responsible for all 77 schools in the Province. A meeting of teachers on the 11th June 2010 had ended with a grog session for a couple of hours. The appellant says that he then took a group of teachers to the Tavern in Savusavu, bought them a round of drinks and then went home where he had two glasses of wine. Prosecution witnesses attest to him being at the tavern "coming in and out" all evening. At 1.00 am the noise of a traffic incident alerted a Police Officer who came to the scene. He found the accused in the driving seat of a Government vehicle having reversed that vehicle over the edge of a sea wall, immobilising the vehicle. Whether he was surrounded by teachers carrying beer bottles or not is in dispute. The police officer being of the opinion that the appellant, in control of the vehicle, was drunk seized the keys of the vehicle and arrested the appellant. He had him sent to the Savusavu Police Station for testing to determine his level of intoxication. He was tested and found to have a concentration of 121 milligrams of alcohol in 100 millilitres of his blood in excess of the prescribed limit of 80 milligrams.
   
6. The accused further attests that he had returned to the Tavern at 1am in response to a telephone call for help from one of the teachers who were ill and needed medical attention.
   

The Hearing

7. The prosecution called four Police witnesses who testified as to what occurred at the scene in the early hours of that day and as to what transpired subsequently at the Police Station, including producing the test results and a statement that the appellant made under caution.
   
8. In his defence case, the appellant gave evidence and called five witnesses to attest that he was not drinking, that one of the teachers was ill, and that the appellant had returned to help the ill teacher.
   

Analysis

9. The thrust of the appeal against conviction appears to be that the learned Magistrate preferred the Prosecution's one Police witness at the scene in contrast to the appellant's five witnesses present that night.
   
10. Such a position however ignores the reality of the factual situation. It

    matters not whether the appellant had two glasses of wine or a lot of beer, it matters not whether he had been at home that evening or not; the facts are that on his own admission he was in control of a vehicle (and a government one at that), he was found to be drunk after unchallenged tests, and he had driven carelessly off the road over the sea wall. No additional evidence or excuses can dilute those compelling facts.

11. The learned Magistrate in a very careful and analytical judgment dealt with

    all the evidence both for the Prosecution and Defence and came to the conclusion that he believed the Policemen but did not believe the defence witnesses. This is a legitimate factual finding that an appellate Court would be reluctant to interfere with; the Magistrate hearing the evidence viva voce and being in the best position to decide where the truth lies. As counsel for the appellant well knows, cases are not decided on the number of witnesses for each side; they are decided on strength of the evidence and the Magistrate, quite properly in this Court's view, found that the prosecution evidence was unassailable.

12. The appeal against conviction has no merit; it is frivolous and is dismissed.
    

Sentence

13. The penalty for a first offence of drunken driving is a maximum fine of

    $2000 and/or a term of imprisonment up to 2 years together with a mandatory disqualification of any period between 3 and 24 months.

14. The learned magistrate quite properly regarded the offence as serious, and

    in particular had regard to the fact the appellant was driving a Government vehicle carelessly and drunk at 1am. He had regard to the fact that the Appellant is 46 years old and a first offender and that he had been suspended from his senior Government post for more than 6 months pending trial.

15. The maximum penalty for a first offence of careless driving is a fine of $500,

    three months imprisonment and 3 demerit points.

16. The sentences passed by the Magistrate were well within his authority, well

    considered and not wrong in law. This Court can see no reason to interfere with them. If anything they would err on the lenient side given the circumstances of the offending. The appeal against sentence is also meritless and frivolous and is dismissed.

Paul K. Madigan
Judge

At Labasa
31 May 2012