IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

High Court Review Case HAR 002 of 2015

BETWEEN:

STATE

AND:

WILLIAM WALSH APTED
Respondent

Counsel: Mr. M. Delaney for State
Mr. N. Barnes and Ms. M. Fong for Accused

Date of hearing: 16 July and 8 September, 2015
Date of Judgment: 11 September, 2015

JUDGMENT

1.	On the 31st March 2015 the respondent entered early pleas of guilty in the Magistrates' Court at Suva to one charge of dangerous driving occasioning death, contrary to s.97(2)(c), 5(c) and 114 of the Land Transport Act 35 of 1998 and to two distinct counts of dangerous driving occasioning grievous harm contrary to s.97((4)(c), 5(c) and 114 of the said Act. On that same day he admitted a set of facts and was thereafter convicted of all three charges by the Magistrate.

2.	On the 8th June, 2015 the respondent was sentenced by the learned Magistrate as follows:

1.	Dangerous driving causing death – a fine of 30 penalty units.
2.	Dangerous driving causing grievous harm – a fine of 15 penalty units.
3.	Dangerous driving causing grievous harm – a fine of 15 penalty units.

He was in addition disqualified from driving a motor vehicle for 2 years from the date of sentence. The fine of $6,000 was paid and the licence surrendered.

3.	Pursuant to section 260 of the Criminal Procedure Decree 2009 this Court has called for the record of proceedings in the Court below in order to assess the correctness or propriety of the sentences passed on the respondent, in this Court's supervisory role imposed on it by s.100(b) of the Constitution of the Republic of Fiji 2013. That role is to ensure that "justice is duly administered by the Magistrates Court".

4.	As with all matters undertaken in its revisional jurisdiction, this Court will not necessarily make any variation or orders made in the Court below, but should it find on revision that there has been injustice occasioned to either the respondent or the prosecution, or that the interest of the public have not been served, then after hearing the parties the Court will make variation orders that would appear to serve the interests of justice.

5.	The terms of s.263 of the Criminal Procedure Decree preclude this Court from making any order to the prejudice of an accused unless he, either personally or by his counsel, has had the opportunity of being heard in his defence. Before making any determination on the propriety of sentence passed below, this Court took pains to afford both the DPP and the respondent the right to be heard in full. Both parties took the opportunity to address the Court orally and to make full and comprehensive written submissions to advance their respective opinions on the issue. I am grateful for their most helpful asstance.

Facts

6.	The facts presented in the Court below and agreed to by the accused present a superficial overview and rather inadequate summary of the events of the day. Mr. Barnes for the respondent is quite correct in his submission that it is not for this Court on review to conduct a rehearing of the plea, and that this Court must of necessity review the case on the matters available to the Magistrate at the time. For this reason the facts agreed to are rehearsed here, but this Court in calling for additional help received agreed sketch plans and agreed photographs which assisted in explaining the facts used for sentencing. I am grateful to counsel for their agreement and for quite properly resisting my initial invitation to provide more detailed facts.

7.	The facts agreed to below and made use of by this Court on review are as follows:

On 2nd February 2014, Mr. Anthony Leighton Work [35 years of age] with his wife Mrs. June Gloria Work [33 years of age] and their children Ms. Georgina Work [4 years of age] and Mr. (sic) Audrey Work [6 years of age] attended the Catholic Church at Varani Street. [Audrey Work is in fact a young girl].

Mr. William Walsh Apted [83 years of age], drove a white Toyata, Parado (sic), Registration Number FE 465 to attend the church service. When Mr. Apted drove his vehicle to the Catholic Church, the brakes in his car were responding well and the brakes were working.

The church service finished at about 10am.

Mr. Work with his wife and their children, Ms. Georgina Work and Mr. (sic) Audrey Work then walked towards their car which was parked at Varani Street. Mr. Anthony Work was holding Mr. (sic) Audrey with his left hand and was walking on the right hand side of the Catholic Church driveway, whereas Mrs. June Work was holding Ms. Georgina with her left hand towards the left hand side of the Catholic Church driveway.

Mr. Apted then drove his FE 465 and proceeded down the Catholic Church driveway.

Mr. and Mrs. Work were about to reach the edge of the Catholic Church Driveway when they heard people screaming. Mr. and Mrs. Work both turned and were suddenly bumped by FE 465 which was driven by Mr. Apted.

The brakes in FE 465 at the time of the accident were working, however Mr. Apted failed to apply the brakes which resulted in an accident. Mr. Apted also failed to apply the handbrakes.

Due to the impact Mrs. Work flew and landed on Varani Street. Mr. and Mrs. Work and Ms. Georgina Work were dragged together with FE 465 until the vehicle stopped after colliding with HH 579 which was parked opposite the Catholic Church Driveway at Varani Street. Mr. and Mrs. Work, Ms. Georgina Work and Mr. (sic) Audrey Work were then rushed to CWM Hospital.

FE 465 was then reversed by PC 4390 Manoa and driven to the tow truck. PC 4390 Manoa while driving Fe 465 applied the brakes and fund that the brakes were working. The vehicle was examined by Mr. Patrick Vatuwaqa on 3rd February, 2014 and according to him, there were no mechanical defects found in FE 465 that could have contributed towards the accident.

Ms. Georgina Work died on the same day. A post mortem was conducted by Dr. J. Kalougivaki on the 3rd of February 2014 on the deceased. According to the post mortem report the cause of death noted was as follows:

-	Severe subdural and subarachnoid hemorrhage
-	Base of skull fracture
-	Multiple traumatic injuries
-	Fatal road accident [pedestrian]

Mr. Anthony Work was examined by Doctor Esala V. and according to the Medical Report the following injuries were noted:

-	Left peri orbital ecchymosis
-	Left ankle bruising
-	Chest pain
-	Multiple fracture on the right (sic)

Mrs. June Work was examined by Doctor Esala and according to the Medical Report the following injuries were noted:

-	3cm scalp laceration
-	Degloving injury to the left ear.
-	Bilateral knee abrasion
-	Dorsal right foot laceration.

Mr. Apted is charged for one count of Dangerous Driving Occasioning Death contrary to section 97(2)(c) and 5(c), and 2 counts of Dangerous Driving Occasioning Grievous Bodily Harm contrary to section 97(4)(c) and 5(c) of the Land Transport Act. Mr. Apted is a first offender.

The Law

8.	The present offence of dangerous driving occasioning death is enacted by the Land Transport Act of 1998. It was previously an offence under the Penal Code, Cap 17 (now repealed). Section 238 of the Code provided for the offence of causing death by reckless or dangerous driving of motor vehicle and the maximum penalty was a penalty of five years' imprisonment. The Land Transport Act ("the Act") in 1998 provided for the enforcement of traffic laws and in doing so repealed the provisions of section 238 (supra).

9.	Section 97 of the Act provides for this offence which the respondent has been charged with, and by s.114 of the Act increased the maximum penalty to 10 years imprisonment, with a maximum fine of $10,000 and disqualification of licence for any period of up to whole of life.

10.	In the case of Sharma HAA 97 of 2005S, Shameem J in assessing the impact of this doubling of the maximum term of imprisonment said this:

"In 1998 Parliament passed the Land Transport Authority Act and increased penalty for causing death by dangerous driving to 10 years imprisonment. There can be no clearer Parliamentary intention as to sufficiency of penalty. To reflect such ….intention, I held in Waqaraitavo that the tariff for such offences must increase to 2 to 4 years imprisonment".

11.	This new tariff imposed by Shameem J, has subsequently been followed by the High Court in Kumar CA 172 of 2014, and Bulivorovoro HAA 11 of 2014.

12.	It has been decided by Shameem J and by this Court that the earlier defence of "momentary inattention" which was available under the old Penal Code offence is no longer applicable to this Land Transport Act offence and in addition that suspended sentences will only be passed in truly exceptional circumstances. As Shameem J said in Waqairatavo HAA 127 of 2004S.

"a non custodial sentence for this offence must be the exception rather than the rule. Indeed, a starting point should be picked from between 2 years and 4 years imprisonment depending on the gravity of the offending. The gravity of the offending is to be assessed on circumstances such as the numbers of death, and the seriousness of the fault, which led to the offending".

13.	In the case of Kumar CA 172/2014Ltk, this Court endorsed the words of Shameem J (supra) and furthermore said:

"there is no doubt that the tariff is still now 2 to 4 years and the "momentary inattention" mitigating factor is not available under the harsher penalty of the Land Transport Act".

14.	Defence counsel, being obviously aware of the settled tariff, submits very strongly that any sentence that this Court might pass be suspended. He relies on the recent English case of Cooksley [2003]3All ER 40 where the Court of Appeal set out aggravating factors for this very same offence (with the same maximum penalty). In addressing sentence that Court said (at para 21) 

"As in the cases for sentencing for any offence a sentence of imprisonment should only be imposed if necessary and then for no longer than necessary. In these cases an immediate custodial sentence will generally be necessary". 

and then at paragraph 22

"….in order to avoid a custodial sentence there have to be exceptional mitigating features".

Mr. Delaney also relies on this case, because it obviously provides authority for both parties.

Proceedings at First Instance

15.	The respondent entered a plea of guilty to all three charges at the earliest possible opportunity. At a subsequent hearing he agreed the facts produced by the prosecution and was convicted. Counsel for both the prosecution and the respondent filed comprehensive written submissions on sentence. Both referred to the tariff of immediate custodial terms of 2-4 years and provided the Court with appropriate and some inappropriate authorities.

16.	Mr. Apted called 4 "eminent" persons as character witnesses. They were:

i.	Mr. Daryl Tarte
ii.	Mr. Ikbal Jannif
iii.	Ratu Jone Madraiwiwi
iv.	Pio Bosco Tikoisuva

All gave laudatory testimony of the respondent's contribution to society and of his devotion to the Catholic church.

17.	Medical evidence was presented from a medical officer at CWM Hospital who saw the respondent on the night of the "event", and from Dr. Theresa Yee Chief his long time family physician.

The Sentence

18.	The learned Magistrate in sentencing the respondent referred first to the history of the case, and then outlined in summary the proceedings before him, including referring to the medical evidence concerning the respondent and then to the character evidence from the 4 "eminent" Fijian acquaintances of the respondent. He continued to make reference to the tragedy of the accident and to the resultant impact on the respondent's health. In dealing with personal mitigation, reference was made to the profoundly sad family circumstances suffered by the respondent and his wife in having lost one adult child to cancer and the prospect of losing two more.

19.	The Magistrate correctly identified the tariffs for the two offences concerned and directed himself correctly that the usual penalty is a sentence of imprisonment and that a sentence would be suspended only on the most exceptional circumstances. He referred to the State's sentencing submissions and their submission that it was an aggravating factor that "three members of a single family had been adversely affected by your actions".

20.	The Magistrate then proceeded to deal with his "analysis" of the situation. He referred to the unequivocal early plea of guilty and then refers to the case of Marau (1990) FJHC 114 in which Fatiaki J (as he then was) adopted the English Court of Appeal's sentencing guidelines for this offence in the case of Guilfoyle (1973) 57 C App R 549.

21.	The Magistrate then concluded that there were no aggravating circumstances in this instant case and that the injuries occasioned to the other family members of the deceased were "subsumed in the offences for which you have been convicted". He stressed the mitigating factors of the plea of guilty, good character and clean driving record with no previous traffic offences or other convictions.

22.	The Magistrate then went on to adopt a principle enunciated in the Guilfoyle case (supra) in which the English Court of Appeal had said that a driver with a good driving record who had been convicted because of momentary inattention on judgment should normally be fined and disqualified from driving. 

23.	The Magistrate in the instant case then went on by saying the following:

"This is a case of momentary inattention and the facts bear that out. There was no mechanical fault with the vehicle and the fault lay entirely with you. You acknowledge that and no doubt that lies heavily with you as you have torn apart a young girl from the warm embrace of her family with your negligence. You have to live with that knowledge in the remaining years of your life".

He concluded by saying:

"To further impose a sentence of imprisonment would not be appropriate having regard to all the circumstances set out above. This sentence will only be applicable to this case bearing in mind its own peculiar tragic facts and will not in any way affect the settled tariffs set out for these offences".

Discussion

24.	The proceedings and sentence in this case display a lack of balance in many respects.

25.	While much emphasis have been placed on the trauma occasioned to the respondent and on the strong mitigating factors appertaining to him, little regard has been given to the horrific consequences of his driving.

26.	The offence of dangerous driving occasioning death is an offence of two components - the driving and the consequences (i.e death). The result of the dangerous driving is of equal importance to the driving and regard must be had to this in balancing the two components. Whatever the circumstances of the driving (and I will return to that issue), the outcome was calamitous. A four year old girl was killed and her mother and father rather seriously injured. The agreed facts disclose that the mother had laceration to the scalp and a degloving injury to the left ear. She had been thrown in the air (she "flew" to Varani Street) and then dragged by the vehicle until it collided with another vehicle. The deceased and her father were too dragged by the vehicle, presumably on the road surface, although the facts don't say.

27.	The father was examined and found to have injuries to his left eye, his ankle, and multiple fractures on his right??? Unfortunately the seriously inadequate facts do not disclose where the multiple fractures were.

28.	Such injuries occasioned after flying through the air and being "dragged" do not suggest a trivial collision. Although there is no evidence of speed, the results are indicative of fast and heavy impact. This Court does not agree that this outcome is not seriously aggravating because the injuries are "subsumed in the offences for which you have been convicted" as the Magistrate said. If the Magistrate was of that view, he perhaps should have looked at the sentences for the other 2 charges (driving causing grievous bodily harm) far more seriously.

29.	Even if charges in respect of persons injured are laid, it does not make the dangerous driving causing death any less serious. The offence must be regarded in isolation as to how serious it is. For example an errant driver killing one pedestrian but injuring 10 others in the process must be regarded as being a more serious offender than a driver killing one pedestrian and injuring just 2 others in the process. The injuries to the parents of the deceased are a serious aggravating feature of this case, irrespective of whether he is charged with injuring them or not.

30.	This is the first lack of balance this Court believes is demonstrated in the sentence passed below.

31.	The Constitution by section 26(i) specifically provides for the right to equality before the law. This right exists not only to protect the underprivileged and give them the access and respect before the Courts that anybody else would expect but it exists in balance to ensure that the privileged or notable members of our community do not have additional advantages, treatment or benefits that would be denied the ordinary man or woman.

32.	This principle was clearly and emphatically made by Gates C.J. in Batiratu HAR 001/2012 in February 2012.

33.	Whilst this Court would with alacrity accept that the respondent is an extremely well respected member of this community and a man of good character and virtue, his standing in the community cannot afford him any special treatment. He had come to Court with references from four fellow citizens, whom the Magistrate had stated were "eminent persons" and this Court would not deny their sincerity in the character evidence they gave. It should be noted however that not every driver who has been accused of driving dangerously can bring to Court four persons of such stature, and it is not for a Court, as this Magistrate seems to have done, to be in awe of such evidence because of the status of the witnesses.

34.	The explanation for the driving by the respondent is sparse. The State's facts disclose that there was no mechanical defect in the vehicle and a Police Officer had tested the brakes immediately after the event and found them working. The facts make no mention of any explanation given by the respondent. When pressed on this matter, counsel for the respondent tells me that his explanation is that he thought "he was applying the brakes and on the steep drive as it was he had no time to react by applying the handbrake or driving off the path".

35.	This Court cannot accept the respondent's counsel's submission that the culpability of his client is at the lower end of the tariff. The driving was dangerous by negligence; it was a serious omission not to take particular care in a situation where the path was steep and pedestrians leaving the church were on the path. It was not a matter of "momentary inattention" - a panacea too long available to dangerous drivers which now has no application in our law.

36.	There was in the Court below an obvious imbalance in the authorities relied upon by the learned Magistrate. Great emphasis was laid on the authorities provided by the defence, authorities which predated the Act of 1998 whilst no reference was made to the recent Fiji authorities which were directly relevant such as Sharma (supra), Waqairatavo (supra) and Kumar (supra). These cases would have provided a greater balance to the cases that were relied upon by the learned Magistrate. They were indeed before him.

37.	In the offence of driving causing death, the facts relating to the actual driving must take precedence over the facts that relate to the driver himself. There is a further imbalance in the sentence passed below where the learned Magistrate in analyzing the offences devotes all of his remarks to the driver himself and very little to the driving. He has however in the paragraph quoted above at paragraph 23 said that it was "momentary inattention" but in the next sentence he contradicts himself by making reference to the respondent's "negligence".

38.	With the greatest respect to the Magistrate, this Court does not agree that this case is so special or "peculiar" as the Magistrate states that it does not warrant the imposition of a term of imprisonment. The Magistrate bore in mind this case's "own peculiarly tragic facts", however, I am sure that any accused killing another in the course of driving would think that his case was tragic and that there were special reasons for him not to be held culpable.

39.	There being no reason why the tariff penalties should not have been imposed, the Court sets aside the sentences passed below and would sentence afresh pursuant to sections 262(1)(a) and 256 of the Criminal Procedure Decree 2009.

40.	For the offence of dangerous driving causing death I take a starting point of two years. For the aggravating feature of the horrific outcome of the dangerous driving I add 12 months, leading to an interim total of 3 years imprisonment. For the driver's good character and clear criminal (and traffic) record, I deduct 12 months meaning he will serve a sentence of two years for the offence. In addition I impose a fine of 50 penalty units.

41.	For the offence of dangerous driving occasioning grievous harm, I sentence the respondent to a term of nine months' imprisonment. This term will be applied to each of the two offences and are terms to be served concurrently with each other and concurrently with the term for the first causing death sentence.

42.	For each of the two offences of driving occasioning grievous harm I impose a fine of 25 penalty units.

43.	The total fine payable is 100 units (F$10,000). $6,000 having already been paid, the respondent is to pay a further $4,000.

44.	Having passed a sentence of imprisonment on the respondent, I now turn to consider how that term should be served.

45.	The respondent comes before the Court with strong mitigation. He is 85 years old and has been driving for 60-65 years without any traffic infringement. He is of undoubted good character and entered a plea of guilty as soon as the charges were settled. His remorse is undeniably and painfully evident. He has made abject apologies to the family and I am told has offered whatever assistance they might need in their grief.

46.	As if the respondent needs no more tragedy in his life, I am told that his eldest daughter recently succumbed to cancer, his eldest son is in the final stages of a battle with cancer and a younger daughter has too recently been diagnosed with cancer.

47.	In the premises, whilst I do not think the offending did bring with it "special circumstances" as argued by defence counsel, the mitigation does indeed bring before the Court special circumstances enough to allow me to suspend the sentences passed for a period of three years.

48.	Having suspended the sentences, I address the question of disqualification. The medical evidence is such that the respondent may never recover mentally nor physically from this ordeal. As such, any driving he may undertake could well be dangerous to others abroad and I therefore order that he be disqualified from driving for the remainder of his life.

49.	For completeness the final sentence imposed by this Court in lieu of the sentences passed below is a term of two years imprisonment suspended for three years. He is to pay an additional fine of 40 penalty units on or before 30th September 2015 and he is disqualified from driving for life.

P.K. Madigan
Judge

At Suva
11 September, 2015