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State v Rasilawale - Sentence [2016] FJMC 136; Traffic Case 1650.2011 (11 January 2016)

IN THE RESIDENT MAGISTRATE'S COURT
AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS

Traffic Case No: 1650/11

STATE

V

JOSAIA RASILAWALE

Prosecution : Cpl Rao - Police Prosecution.
Accused : Present – In Person

SENTENCE

Josaia Rasilawale was charged as follows:
Refusing to undergo breath analysis when required to do so by a Police Officer: Contrary to section 103 (1) (b) and 114 of Land Transport Act No. 35 of 1998.

Particulars of the Offence [b]

Josaia Rasilawale on the 15^th day of January, 2011 at Nausori in the Central Division upon being required by a police officer namely CPL 2846 Paulino refused to undergo that breath analysis with the direction of the said Cpl 2846 Paulino.

Following a hearing the accused was found guilty and convicted of the offence

The Law and the Penalty

The relevant sections and provisions of the Land Transport Act 1998 that the prosecution relied upon in charging the accused is as follows:

"103. - (1) A person who -

(a) drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his blood; or

(b) fails or refuses to undergo a breath test or breath analysis when required to do so by a police officer, commits an offence.

(2) A person who is convicted of an offence under subsection (1) is liable to the prescribed penalty.

114. - (1) The penalties prescribed in the third column of the Schedule are prescribed as the maximum penalties for offences against the sections of the Act respectively mentioned.

(2) Where the prescribed penalty is shown by "$..../..... months" or similar, the court may impose a fine up to the maximum amount shown or a term of imprisonment up to the maximum period shown or both such fine and such imprisonment.

(3) Where the prescribed penalty includes disqualification, subsections (2) and (3) of section 59 apply.

(4) Where the prescribed penalty includes demerit points, subsections (2) and (3) of section 88 apply."

The Court has noted the mitigation of the accused, which is that he is 58 years old, married with 2 children, a driver, earning $80/week, sole-breadwinner, supporting family and seeking forgiveness and leniency.

The Court has noted the penalty and the tariff of the offence and in addition the mitigating factors. The Court has noted that in 2009 the accused was charged for drunk driving and fined $250 and disqualified for 3 months. The Court notes that the accused has been sentenced and done time for that offence. However, the Law allows the Court to look at previous offence under the Land Transport Act in relation to drink drive offences and as a result with the Law has stated first, second and 2 or more convictions for similar offence within the 5 years preceding the offence and different penalties. This Court has noted this provision of the law.

Having considered all matters this Court fines the accused $1000.00, imposes Court Cost of $250 and disqualifies the accused from driving for 2 years. The accused is given 3 months to pay his fine and Court Costs.

Summary of Sentence:

Fine – $1000.00

Court Costs - $250.00

Disqualification from driving for 2 years.

3 months to pay fine/ id 125 days.

The Court will call the file on 13^th April 2016 to review payments of fine and Court Costs.

Chaitanya Lakshman

Resident Magistrate

11^th January 2016