Download State v Jitesh Prasad HAA038J.03S - Law Fiji

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA038 OF 2003S
Between : STATE
And : JITESH PRASAD
Appellant
Respondent
Counsel: Mr. P. Bulamainaivalu for State
Mr. V. Nathan for Respondent
Hearing: 3 rd October 2003
Judgment: 16 th October 2003
J U D G M E N T
The Respondent was charged with the following offence:
Statement of Offence
Driving Motor vehicle whilst there is present
in the blood a concentration of alcohol in
excess of a prescribed limit: Contrary to
Sections 103(1)(a) and 114 of the Land
Transport Act No. 35 of 1998.
Particulars of Offence
JITESH PRASAD s/o Lachman Prasad on the 6 th day
of June, 2003 at Nasinu in the Central
Division, drove a motor vehicle registration
number EC 441 on Nokonoko Road whilst there
was present in 100 millilitres of his blood a
concentration of 112.2 micrograms of alcohol
which was in excess of the prescribed limit.

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He pleaded guilty and was sentenced to a fine of
$300.00 and a “partial disqualification” from holding or
obtaining a driving licence for 3 months. The State now
appeals against the order for disqualification.
The case was called on the 9 th of July 2003. The
Respondent pleaded guilty and the facts were outlined.
They were that on 6 th June 2003 at 1.15am a police officer
stopped the Respondent and tested his breath for alcohol.
At the time the Respondent had been driving his taxi at the
Nokonoko Road. The test result was that he had 7410.53
micrograms of alcohol in his breath sample. His blood was
tested at the police station and found to contain 112.2
micrograms of alcohol. Both tests revealed that the
Respondent had consumed alcohol in excess of the prescribed
limit. He was charged. He accepted these facts, and four
previous convictions, none of which were for driving
offences.
In mitigation, he expressed remorse, and said that he
was supporting his family by driving his taxi. The learned
Magistrate sentenced as follows:
“1. Accused is given a fine of $300.00 in
default 30 days imprisonment.
2. Fine to be paid within 30 days.
3. The accused is given a partial
disqualification for holding and obtaining a
driving licence for the next 3 months on the
condition that he can only drive taxi from
6.00am to 6pm daily to help support his
family.”

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The petition of appeal of the Director of Public
Prosecutions sets out the following grounds of appeal:
“(a) That the learned Magistrate erred in law
and in fact when he ordered a partial
disqualification, when any disqualification
must be mandatory under section 114 of the
Land Transport Act No. 35 of 1998.
(b) That the learned Magistrate erred in law
and in fact when he failed to consider that
the Respondent had breached the order binding
him over in the sum of $100.00 to keep the
peace and be of good behaviour for twelve (12)
months, in the case dated 23/8/2002.”
At the hearing of this appeal, the Respondent was
represented by counsel. However he said he was not ready
to argue the appeal, and I gave him time to make written
submissions ordering him to file them by 9 th October 2003.
No submissions were filed, and I have proceeded to judgment
without them.
The disqualification
provides:
Section 103(1)(a) of the Land Transport Act 1998
“A person who … 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 … commits an offence.”

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Section 114 of the Act provides that the schedule to
the Act fixes the penalties in respect of the offences
created by the Act. The schedule to the Act provides, in
respect of an offence under section 103(1)(a) of the Act.
Section Offence Prescribed Penalty
S.103(1)(a)
(a) first offence
$2000/2 years and
mandatory
disqualification from 3
months to 2 years.
In State –v- Kameli Ratuvou Crim. App. No. HAA060 of
2002, I made the following (obiter) remarks about these
penalty provisions:
“Section 114(2) of the Act provides that “the
court may impose a fine up to the maximum
amount shown or a term of imprisonment or both
such fine and imprisonment.” The word “may”
creates a discretion. This discretion may be
exercised by imposing a fine in any sum up to
the maximum, but may also be exercised by not
imposing either fine or a period of
imprisonment. What is mandatory is a period
of disqualification. The minimum mandatory
term of disqualification (on first conviction)
is 3 months. The Magistrate has a discretion
to impose more than 3 months but may not
impose less.”
The legislature has provided for no power to order
partial disqualification. This is logical. The order for
disqualification is a sentence which acknowledges that a
driver is a safety risk for other road users. By allowing
him/her to use the road during some hours of the day, how
is the safety of other road users protected? In this case,

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the learned Magistrate ordered that the Respondent could
drive between 6am and 6pm daily, the very hours the roads
are busiest!
The courts do not have powers to order
disqualification between certain hours of the day. They do
not have powers to disqualify from driving certain classes
of vehicle. When a person is disqualified from driving, he
is taken off the roads for the period of time specified.
The length of disqualification depends on the
following factors:
1. The standard of driving shown in the
offending.
2. Any previous convictions for traffic
offences.
3. The need to protect the public from
dangerous/careless/drunk drivers.
4. Good character.
5. Serious hardship to the family.
6. Driving providing the source of livelihood
for the offender.
(R –v- Thomas (K) 78 Cr. App. R. 44, R –v-
Hart; R –v-Jackson (1970) RTR 165; Reynolds –v-
Roche (1972) RTR 282).
These factors will determine the length of
disqualification.

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In the case on appeal, there were extenuating factors
which justified the order of the shortest term of
disqualification possible. However the learned Magistrate
had no powers to order that the Respondent could drive
during the day. The order for “partial” disqualification
is quashed. The Respondent is disqualified from driving
from today (16/10/03) for a period of 3 months. He may not
drive at any time during the 3 month period.
Binding Over
On 23 rd August 2002, the Respondent was bound over to
keep the peace for 12 months, in the sum of $100. The
State submits that because the Respondent re-offended
within the 12 months, the $100 must now be forfeited.
Section 41(1) of the Penal Code provides:
“A person convicted of an offence not
punishable with death may, instead of or in
addition to any punishment to which he is
liable, be ordered to enter into his own
recognizance, with or without sureties, in
such amount as the court thinks fit,
conditioned that he shall keep the peace and
be of good behaviour for a time to be fixed by
the court, not exceeding two years, and may be
ordered to be imprisoned until such
recognizance, with sureties if so directed, is
entered into; for a term longer than six
months:
Provided that no order shall be made under
this section where the person convicted has
been sentenced to a term of imprisonment of
more than six months.”

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The power to bind over to keep the peace is a very old
power, contained in the English Justices of the Peace Act
1361, and, more recently in the Justices of the Peace Act
1968 (U.K.). The power at common law did not depend upon a
conviction. However the Penal Code power requires a
conviction to be entered before a binding over order is
made under section 41(1). The common law does however
provide that the recognizance is forfeit where it is proved
on a balance of probabilities that the offender has not
kept the peace. (R –v- Marlow JJ ex p O’Sullivan (1984) QB
381.)
In this case there is no doubt at all that the
Respondent, by driving whilst drunk, was in breach of the
order. It is unfortunate that the prosecutor in the
Magistrate’s Court did not bring the breach to the
attention of the presiding Magistrate. However, under
section 116 of the Criminal Procedure Code, the Respondent
is entitled to appear before the Magistrates’ Court at a
date to be notified by the Court, to show cause why the
court should not order payment of the penalty.
Result
This appeal succeeds. The order for disqualification
is quashed and substituted with disqualification from
holding or obtaining a driving licence for a period of 3
months from 16/10/03.

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The case is remitted to the Magistrates’ Court to
consider forfeiture of the recognizance of $100 in the
binding over order of 23/08/02.
………………………………………………………
Nazhat Shameem
JUDGE
At Suva
16 th October 2003