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Regina v Usman [1979] FJSC 34; Criminal Appeal No. 60 OF 1979 (23 October 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT IAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL No. 60 of 1979

Between

REGINA
Appellant

And

MOHAMMED FARUK USMAN ALI KHAN
s/o MOHAMMED SAFIQ KHAN
Respondent

Mr. D. Williams, Counsel for the Appellant
Mr. N. Tappoo for Messrs. Koya & Co., Counsel for the Respondent

JUDGMENT

The accused was the driver of a heavy goods vehicle which was involved in an accident where two small children standing beside the road were struck by the vehicle and killed. He was charged with causing death by dangerous driving contrary to section 269 of the Penal Code. He pleaded not guilty but after the court had heard the evidence of three witnesses, including an eye witness, the accused changed his plea to guilty, he was convicted of the offence charged and fined $500 or 9 months imprisonment in default and he was disqualified from driving heavy goods vehicles for 5 years.

Against this sentence and disqualification the Crown have appealed. The first ground of appeal was that the sentence was wrong in principal, there being an aggravating factor, namely excessive speed, necessitating a custodial sentence.

The eye witness said that the accused was driving at a high speed, and the vehicle left a brake mark on the gravel road 94 feet long, but the magistrate and the prosecution seemed to accept that the accused was not driving at an excessive speed. Brake marks of 94 feet on a gravel surface do not indicate excessive speed, but then the vehicle did not stop in 94 feet, after 94 feet the vehicle was apparently going out of control so that the accused had stopped braking hard and the vehicle then carried on and finished in a cane field off the road on the right side of the road some distance beyond. So the brake marks were not a true indication of the vehicles' speed. The accused himself said that he was travelling at 35 miles per hour, but there again 35 miles per hour in certain circumstances, e.g. a heavy goods vehicle on a gravel road 25 feet wide between sugar cane, hedges and shops or houses and passing on omnibus, can be too great a speed. The magistrate in passing sentence added the following remark,

"I fine it difficult to understand how anyone knowing the condition of Fiji roads allows a 6-wheel 16½- ton vehicle to be driven by a person who is not specifically trained, tested and licensed to drive such a vehicle."

It is correct that under the Ordinance exactly the same qualifications apply in Fiji for a licence to drive a Mini, as for the heaviest goods vehicle or bus - the only added qualification in respect of a public service vehicle is some knowledge of the routes to be driven on. I would add that I think that nobody who has driven on the roads of Fiji can be other than concerned and frightened by the standard of driving, the lack of courtesy, the lack of consideration and downright bad judgment generally and particularly (or perhaps more frighteningly) exhibited by heavy vehicles, frequently grossly overloaded, and frequently travelling very much in excess of the 60 kph sign written on the back of the vehicle.

This is the second case appearing before me today in which heavy goods vehicles have knocked down and killed children. Of course not every such accident is the fault of the driver, and there may be considerable differences in the degree of blame-worthiness in different cases. But it is not good enough for drivers just to say they were not exceeding the speed limit. Every driver must realise that his vehicle is a potentially lethal weapon and should take steps to ensure that he minimises the danger to others. A proper driver, a reasonable driver, anticipates a dangerous situation, or recognises one as soon as it manifests itself, he even anticipates foolishness or errors in others, and takes precautions particularly where children are involved, and does not expect everyone else to look out for themselves.

In this case the two children were standing beside the road, they did not suddenly appear nor did they run out into the road, and the accused said he did not see them because he was crossing a bus at the time on this narrow gravel road. If the situation was such that the accused could not keep a proper look out because he had to concentrate on the oncoming bus, the answer was plain. He should slow right down so he could see the road ahead and the oncoming bus.

I have made these remarks purposely because although the Crown later decided not to press for a custodial sentence, since it was said that there was no real evidence of speed, I think the circumstances were bad enough for more than serious consideration to be given to a custodial sentence. After all the punishment provided under Section 269 of the Penal Code is imprisonment for up to 5 years, and although a court is entitled where it considers the circumstances warrant it to pass a sentence of fine in lieu of a sentence of imprisonment. I question whether there were such circumstances in this case. The magistrate in passing the sentence said these children waiting to cross the road "were just, and only just hit by the left front light of the vehicle and killed, as if this were some mitigating factor, and later said there was no evidence of selfish disregard for the safety of other road users or a degree of recklessness. I must confess that I am unable to understand this view of the case or to agree with it. If two children standing beside the road are struck by a vehicle which comes too far over to that side of the road, a vehicle driven by a man who says he doesn't see them, then it matters not that they are only just hit the "only just" is too much, and "only just" just as certainly killed them.

However the Crown has not pursued its request for a custodial sentence so the sentence of $500 fine or 9 months imprisonment in default must stand. But what I have already said is relevant to the second ground of the Crown's appeal, namely in respect of the 5 year disqualification ordered by the magistrate. For some reason that is not clear from the record this disqualification was limited to heavy goods vehicles. That means that the accused is free to drive any other type of vehicle, including presumably heavy public service vehicles. This is surely nonsensical. A magistrate has a discretion under Section 29 of the Traffic Ordinance, where he thinks fit, to limit a disqualification to any particular class of vehicle, but there must be some valid reason for such a limitation. Here I can see none whatsoever. It was not so mach the accused's driving of a heavy goods vehicle that was inadequate, but his ability as a driver of any vehicle, so that this was not a proper exercise of the magistrate's discretion. The accused had two previous convictions under the Traffic Ordinance, one of which was for speeding, though neither perhaps was a serious offence. However the accused's record was not exactly in his favour. Incidentally it is of interest that before his conviction for this offence the accused was convicted of a second offence of speeding. Alt1ough this speeding offence was apparently committed after the instant offence, and so should not be taken into account as a previous conviction, it does show that inspite of the accused's involvement with a double fatality he was still showing disregard of the provisions of the Traffic Ordinance.

The Crown's appeal is upheld on ground 2, and the magistrate's order is varied so that the disqualification
for 5 years will apply in respect of all classes of vehicles.

(Sgd.) G.O.L. Dyke
JUDGE

Lautoka
23rd October, 1979.