IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA04 of 2016
[Magistrates’ Court Case No.85 of 2008)

BETWEEN

THE STATE

Appellant

AND

MANOA PIO

Respondent

Coram		:	Hon. Mr Justice Daniel Goundar

Counsel	:	Mr L Fotofili for the Appellant
			Mr I Rakaria for the Respondent

Date of Hearing	: 21 February 2017

Date of Judgment	: 1 March 2017

JUDGMENT

[1]	This is an appeal by the State against the sentence imposed on the respondent in the Magistrates’ Court at Savusavu for offences under the Land Transport Act 1998.  The sentence was imposed 21 April 2015. The State filed the appeal on 18 May 2015. The appeal is timely. The State’s right of appeal is governed by section 246(1) & (6) of the Criminal Procedure Decree 2009.

[2]	Initially, the respondent was charged with one count each of aggravated dangerous driving occasioning death, aggravating dangerous driving occasioning grievous harm, driving a motor vehicle without a driving licence and driving a motor vehicle in contravention of third party policy risk. On 12 August 2008, the charge of aggravating driving occasioning grievous harm was amended after the victim on that count died. On 10 June 2009, further amendments were made to the charges. The respondent was tried on two counts of dangerous driving occasioning death contrary to sections 97(2)(c) and 114 of the Land Transport Act 1998 and one count of driving a motor vehicle without a driver’s licence contrary to sections 97(1), 56(3) and 114 of the Land Transport Act 1998. 

[3]	At trial, the respondent did not dispute that he was the driver of the vehicle that was involved in an impact. The impact occurred on 9 February 2008 along the Hibiscus Highway. In his evidence, the respondent admitted driving a motor vehicle without a licence. He said he had been driving for 3 years without a licence and never had an accident.  When his friend, David Fisher offered his vehicle for driving, he agreed. 

[4]	The prosecution led evidence from witnesses who said the respondent and the passengers in the vehicle were drunk and immediately before the impact, the vehicle was being driven very fast. Two witnesses gave evidence that they had to get out of the way to avoid being hit by the vehicle while walking on the roadside. One of them described the vehicle being driven in a ‘zigzag’ manner. Another witness described the vehicle being driven on the wrong side of the road before tumbling three times. This witness saw passengers being thrown out of the vehicle when it lost control.

[5]	Evidence was led from a police officer who attended the scene immediately after the impact. The officer observed that the road was tar sealed and there was a slight drizzle on that day. He took the measurements and drew a sketch plan of the accident. He observed a 21.2 meter tyre track and that the vehicle was dragged for 1.7 meters sideways. He said that the vehicle swerved for more than 120 meters before tumbling. 

[6]	The caution interview of the respondent was tendered with his consent. In his interview, the respondent admitted to drinking 1 carton of beer and 40 ounce of rum with others within 45 minutes. He admitted driving without a licence. He blamed David Fisher for causing him to lose control of the vehicle. He said David Fisher touched the steering wheel and the vehicle swerved to the right. In response, the respondent swerved the vehicle back to the left, changed gear and then applied the foot brakes, which caused the vehicle to tumble. He said his speed at the time was 50 to 60 km/h. The respondent gave evidence consistent with his caution interview. 

[7]	David Fisher died shortly after the impact. The pathologist gave evidence that David Fisher died due to the external and internal injuries sustained in a motor vehicle accident. Another passenger, David Chute died on 20 March 2008 at Labasa Hospital. At trial, the prosecution did not lead evidence of the cause of death of David Chute. 

[8]	The judgment convicting the respondent of all three counts was delivered on 7 November 2012.  But before the respondent was sentenced, the trial Magistrate left the office and the sentence was delivered by another Magistrate after two years from the date of conviction. The respondent was sentenced to a head sentence of 2 ½ years (30 months) for dangerous driving occasioning death suspended for three years. He was also ordered to pay a fine of $1000.00 within 6 months in default 6 months imprisonment. For driving without a licence, the respondent was ordered to pay a fine of $200.00 within 30 days in default 30 days imprisonment. If the respondent had obtained a driving licence, the licence was suspended for 2 years. 

[9]	The appeal is against the sentence imposed for the offences of dangerous driving occasioning death. The grounds of appeal are:

(a)	That the learned Magistrate erred in law, fact and principle when suspending the sentence of the Respondent in circumstances where the Magistrate included in the aggravating factors:
(i)	That two persons were killed.
(ii)	The Defendant was drunk at the time of driving.
(iii)	 The Defendant was incapable of taking effective action due to inexperience.
(iv)	 Was driving without a licence.

(b)	That the sentence was manifestly and unduly lenient in all circumstances of the case. 

[10]	At the hearing, counsel for the State fairly brought to the attention of this Court that there was no evidence led at the trial of the cause of death of the deceased on count one, David Chute. To prove the charge of dangerous driving occasioning death, the prosecution was required to prove that the respondent drove a vehicle in a dangerous manner occasioning death of the victim. While the prosecution led evidence of the cause of death of David Fisher (the deceased on count 2), they did not lead any evidence of the cause of death of David Chute (the deceased on count 1). David Chute survived the impact and died after a month at the hospital. There was no evidence led as to what caused his death. I accept the State’s submission that there was no evidence of an essential element of the offence on count 1 and that the respondent should have been acquitted of that count at the no case to answer stage. The conviction on count 1 is quashed. The State argues that this concession has no bearing on the merits of the State’s appeal against the sentence imposed on the respondent. 

 [11]	In his sentencing remarks, the learned Magistrate referred to the maximum penalty that the Parliament had prescribed for the offence of dangerous driving occasioning death – 10 years imprisonment/$10,000.00 fine and disqualification for any period up to life. He referred to the case of State v Benjamin Padarath Cr Case No. HAC13 of 2004S and said the tariff for the offence was between 2 to 4 years’ imprisonment. He also referred to a number of local and English cases to identify the principles that applied to sentencing for dangerous driving occasioning death. Some of the principles are worth mentioning here:

(i)	Drivers who showed a selfish disregard for the safety of other road users were to be given custodial sentences at the higher range of the tariff.
(ii)	Non-custodial sentences or very shot custodial sentences were reserved for cases where death was caused as a result of momentary inattention and there were not aggravating factors.
(iii)	A starting point should be picked up from between 2 years and 4 years imprisonment, depending on the gravity of the offending, assessed on the  the seriousness of the fault. 

[12]	In the present case, the respondent drove the vehicle that was involved in an impact after consuming a significant amount of alcohol. He drove when he knew he did not have a licence to drive. Witnesses gave evidence that the vehicle was travelling very fast before the impact. It went on the other side of the road and almost hit the pedestrians on the roadside. When the vehicle tumbled the passengers were thrown out. These were serious aggravating factors.  The only compelling mitigating factors were that the appellant was a first time offender and the case had been hanging over his head for nearly 7 years before it was concluded. The delay was systematic. 

[13]	The final term that the learned Magistrate arrived at after adjusting for the mitigating and aggravating factors was 2 ½ years’ imprisonment. The term of 2 ½ years is within the tariff for the offence of dangerous driving occasioning death. After arriving at the term of 2 ½ years, the learned Magistrate directed his mind to the suspension of sentence. He suspended the sentence. His reasons were that the respondent’s culpability fell within momentary inattention category and that he was a first time offender. He also referred to section 15(3) of the Sentencing and Penalties Decree 2009 that states that a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4 and imprisonment should be regarded as the sanction of last resort. 

[14]	In my judgment, the learned Magistrate fell in error when he suspended the sentence. This was not case of momentary inattention. The facts clearly showed that the respondent showed a selfish disregard to others by driving a vehicle without a licence and after consuming a significant amount of alcohol. He created a dangerous situation and was at fault. The objectives of punishment were denunciation and deterrence, both special and general. A human life was lost due to the respondent’s conduct. Not only the suspension was wrong in principle, the learned Magistrate did not have jurisdiction to suspend the term of 2 ½ years’ imprisonment. 

[15]	Section 26(2) of the Sentencing and Penalties Decree 2009 is clear. It provides:

A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate’s Court.

[16]	The term of imprisonment in the present case exceeded 2 years. The discretion to suspend was not available to the learned Magistrate. The suspension was unlawful. 

[17]	It was brought to the attention of this Court that the appellant had served his default sentence of 6 months imprisonment after he was not able to pay his fine within the ordered timeframe. In these circumstances, a just result can be achieved by quashing the suspension order for want of jurisdiction and not enhancing the term of imprisonment. For dangerous driving causing death of David Fisher (count 2), the respondent is sentenced to 2 ½ years imprisonment. Due to the systematic delay in concluding the case, the Court declines to fix a non-parole period. 

Result
[18]	Conviction on count 1 is quashed.
	The State’s appeal is allowed.
	The suspension order is set aside
On count 2, the respondent is sentenced to 2 ½ years’ imprisonment. The Court declines to fix a non-parole period. 

......................................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Respondent