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State v Matau [2016] FJMC 104; Criminal Case 121.2016 (1 August 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 121/16

STATE

-v-

SOLOMONI MATAU

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

DRIVING MOTOR VEHICLE WHILST THERE IS PRESENT IN THE BLOOD A CONCENTRATION OF ALCOHOL IN THE PRESCRIBED LIMIT: Contrary to Section 103(1)(a) and 114 of the Land Transport Act No. 35 of 1998.

Particulars of Offence

SOLOMONI MATAU on the 19th day of February 2016 at Suva in the Central Division drove a motor vehicle registration number CATHAN at TotogoPolice Station Yard whilst there was present in 100 milliliters of his blood a concentration of 103.4 miligrammes of alcohol which was in excess of the prescribed limit.

2] Summary of facts that you have admitted is reproduced here;

➢ On the 19th day of February 2016 at about 2300hours PC Vilikesa PW1 was conducting Random Breath Test Operation along Thurston Street notice a motor vehicle registration number CATHAN driven by Raijieli Bale the husband of SolomoniMatau (Accused).

➢ PC Rajnil Roy arrested the driver of vehicle registration number CATHAN whilst arresting the husband (Accused) approach the Police on duty to relese the wife and later the Police warned him not to interfere.

➢ PC Rajnil Roy escorted the wife to Totogo Police Station for further test.

➢ At Totogo Police Station Yard (Accused) drove the same vehicle registration number CATHAN.

➢ PW1 tested the Accused on the Alcotest 7410 and the reading was 66mg/00ml where accused was arrested and handed over to PC 2662 Shiu (PW2) for further test on Dragger Alcotest 7110 and the reading was 74mg/100ml which was over the prescribed limit.

3] Maximum sentence for First offence is $2,000 fine /2 years and mandatory disqualification for from 3 months to 2 years.There is no tariff for the offence.

5] I shall now proceed to consider your sentence to be consistent with mitigatingfactors and the prescribed penalty. There is no aggravating factor in this case.

6] You have pleaded guilty at the first available opportunity and you have no previous convictions. These are valid mitigating factors that have to be considered under Sec 4(2) of the Sentencing and Penalties Decree 2009.

7] Further you have submitted the following factors for this court to consider awarding demerit point on your Driver’s Licence instead of disqualification for any period.

➢ Runs his own IT business located Nikuatu Street in Lami
➢ Opens his IT business at Lami at 7.30am every morning
➢ Drops his children at school every morning before he opens up his business
➢ Picks up his son from kindergarten at 11.30am every day and drops him at home
➢ IT business involves servicing clients on their IT issues at their offices around Suva/Nadi/Nausori
➢ Needs to be able to drive so that he can continue to look after his business and his family
➢ He has a clean drivers licence

Section 15 of the Sentencing and Penalties Decree 2009 provides that

(2) All courts may impose the sentences stated in sub-section (1) notwithstanding that a law may state that a penalty is to be imposed upon the conviction of an offender.

(3) As a general principle of sentencing , 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 sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part.

There are no exceptional circumstances in this case to seek the above provisions and deviate from the prescribed penalty under the Land Transport Act. The court cannot without a valid ground consider an alternative sentence. Your family commitments and nature of profession are not valid grounds to deviate from the prescribed penalty.

On the other hand demerit points cannot be awarded under SeC.103 of the Land Transport Act as the disqualification is mandatory. Disqualification has been made part of the sentence in order to give a severe penalty for drunken driving. Therefore unless the court seeks above mentioned provisions of the Sentencing and Penalties Decree 2009 in exceptional circumstances no alternative sentence cannot be considered under the Land Transport Act

Accordingly $ 350 fine and 30 days imprisonment in default is imposed.

In addition your Driver’s Licence is suspended for 3 months

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

1/8/2016