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State v Rokosuka [2013] FJMC 334; Criminal Case 19.2010 (3 July 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 19/2010

STATE
-v-

ATUNAISA KORORUA ROKOSUKA

Police Constable Ravi Narayan for the Prosecution
Ms. Talei Kean (LAC) for the accused

SENTENCE

01] The accused is charged with following offence namely;

CHARGE:

FIRST COUNT

Statement of Offence [a]

RECKLESS AND NEGLIGENT ACT: Contrary to Section 237 (a) of the Penal Code Act 17.

Particulars of Offence [b]

ATUNAISA KORORUA ROKOSUKA, on the 5th day of May 2009 at Nasinu in the Central Division being in charge of motor vehicle number LT 4430 drove the said motor vehicle in a reckless and negligent manner as to endanger the life on RUPENI RAVONU.

02] He pleaded not guilty to the charge and the trial was heard on 18th May 2012. You have been convicted for said offence after full hearing on 18th September 2012. Then, you asked date to file written mitigation. Then, you were absent and Bench warrant issued against you. You surrendered with Legal Aid Counsel and they filed written mitigation. I am mindful of that.

03] PW1 Rupeni Ravonu said that on 05th June 2009, he attended night function in Marist Club, flagstaff he took the accused's LT 4430 to go to Maqbool Road. He got off from Reba Circle as he wanted to see a friend. When he was going towards to see his friend the accused reversed the vehicle deliberately and hit him. His left leg was underneath the taxi. He was stuck under the taxi, he was taken to the hospital. There was an open fracture wound and he was hospitalized for two months as inward patient. Medical tendered as EX-1.

04] The accused is charged with section 237(a) of Penal Code.

"237. Any person who, in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person-

(a) drives any vehicle or rides on any public way; or

(b) navigates, or takes part in the navigation or working of, any vessel; or

(c) does any act with fire or any combustible matter, or omits to take precautions against any probable danger from any fire or any combustible matter in his possession; or

(d) omits to take precautions against any probable danger from any animal in his possession; or

(e) gives medical or surgical treatment to any person whom he has undertaken to treat; or

(f) dispenses, supplies, sells, administers or gives away any medicine poisonous or dangerous matter; or

(g) does any act with respect to, or omits to take proper precautions against any probable danger from, any machinery of which he is solely or partly in charge; or

(h) does any act with respect to, or omits to take proper precautions against any probable danger from, any explosive in his possession,

is guilty of a misdemeanour."

05] According to the interpretation Section of the Penal Code Act "misdemeanor" means any offence which is not treason or a felony.

06] "Felony" means an offence which is declared by law to be a felony or, if not declared to be a misdemeanor, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more.

07] Thus maximum sentence for this offence would be imprisonment for three years.

08] The accused in written mitigation said that:

1. He is willing to apologize to the complainant and in addition to this the accused has also asked for forgiveness from the complainant's wife who has accepted his apology.
   
2. He acknowledges that the offence he is charged with is a serious offence and he is remorseful for what he has done and seeks the Court's forgiveness.
   

100. He fully cooperated with Police during the investigation stage. He was being truthful and honest and he told the Police everything of what happened on the day of the commission of the offending.
     

4. He also understands that driving and injuring another person with his vehicle is wrong and he could've handled the situation differently like calling the Police. But he states that his intention at the time of the offence was not to cause injury towards the complainant or cause harm but rather to get closer to the complainant and apprehend him so that he could get what was owed to him as taxi fare.
   
5. He is the sole breadwinner for his family and has 3 children who are all married but nonetheless he solely supports his wife who is elderly and unemployed and his two grandchildren who are aged 5 and 7 years respectively and who both attend primary school. He solely provides and takes care of them as children the children's father had passed away in 2010 and their mother has since moved on with another man.
   
6. He seeks for forgiveness from this Honorable Court and promises that he will not re-offend. He is also willing to reform should he be given an opportunity.
   
7. Although the complainant had sustained injuries it was not that serious as the complainant who then sent right after being treated to the hospital.
   

09] The accused said that he thought the victim was trying to escape without paying his taxi fare. He said that the victim had done previously one occasion. So, he suddenly reversed the vehicle to prevent victim being escaped from him. While vehicle was in action, he stood on the brakes to stop the vehicle but the vehicle did not stop, since it was on the grass and grass was wet and eventually vehicle bumped onto the victim. But it seems that the accused has deliberately done and taken law into his hand. It that sense, he attracts custodial sentence. This is the aggravation factor.

10] I pick one year imprisonment and for aggravating factor, I increase 6 months and for his mitigation, I reduce 6 months. His sentence is 1 year imprisonment. Considering, since he is a first offender, I suspend the same for 3 years. In addition the accused should pay $200 as compensation to the victim, in default 20 days in prison.

11] 28 days to appeal

Delivered in open court,

On 03rd July 2013 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu