SOBNATH S.K.

v THE STATE

2012 SCJ 274

Record No. 7971

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

S.K. Sobnath

Appellant

v.

The State

Respondent

JUDGMENT

This is an appeal against sentence only. Following a conviction for ‘driving

a motor vehicle with alcohol concentration above the prescribed limit’ in breach of section
123F(1)(a), (3) and (5) of the Road Traffic Act, the appellant was sentenced to pay a fine
of Rs 20,000 and to undergo 6 months’ imprisonment. His driving licence was cancelled
and endorsed. He was further disqualified from driving all types of vehicles for a period of
8 months.

It was submitted by learned Counsel for the appellant that the sentence, more
particularly the sentence of 6 months’ imprisonment, was manifestly harsh and
excessive. She added that there were no aggravating factors, in the absence of any
accident or any prejudice which could have been caused to any other person, to justify
the imposition of a custodial sentence. The appellant, who had been subjected to an
assault, had to drive his lorry to Plaine Magnien Police Station in order to report the case.
It was also submitted that the previous conviction of appellant was in respect of an
offence subsequent to the commission of the present offence and it ought not to have
been taken into consideration by the learned Magistrate in determining the sentence in
the present case.
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Section 123F(3) and (4) of the Road Traffic Act provide the following in relation
to the sentence under section 123F.

‘123F. (3) A person convicted of an offence under this section shall be

liable to a fine of not less than 10,000 rupees nor more than 25,000 rupees
and to imprisonment for a term not exceeding 6 months.

(4) In the case of a second or subsequent conviction, the offender

under subsection (1) shall be liable to a fine of not less than 20,000 rupees
nor more than 50,000 rupees together with imprisonment for a term of not less
than 6 months nor more than 12 months.’ (Emphasis added).

The legislation has therefore prescribed a mandatory minimum sentence of

6 months imprisonment coupled with a fine of Rs 20,000 in the case of a second or
subsequent conviction. Furthermore, section 123F(5) removes the possibility of a lesser
term of imprisonment and expressly provides that there can be no Probation or
Community Service Order.

The learned Magistrate did not specifically give any reason for the sentence.
There is, however, on record a previous conviction for a similar offence. There can be no
doubt that the learned Magistrate acted upon this previous conviction in order to impose
the mandatory minimum penalty prescribed in the case of a second or subsequent
conviction under section 123F(4) which is a fine of not less than Rs 20,000 together with
imprisonment for not less than 6 months. The learned Magistrate went on to make an
order for endorsement, disqualification and cancellation of the driving licence in
conformity with section 52 and the Second Schedule to the Act.

It is apposite to refer to the history and sequence of the events which led to the
conviction and sentence and which would inevitably raise serious questions as to the
constitutional legitimacy and propriety of the imposition of the mandatory minimum
sentence in such circumstances.

The offence was committed on 22 August 2004 and the appellant was convicted
nearly 6 years later on 29 June 2010. He had in fact been first acquitted by the District
Magistrate of Grand Port on 14 August 2008. The Director of Public Prosecutions, being
dissatisfied with the decision of the learned Magistrate, appealed to the Supreme Court.
The appeal was allowed and the case was remitted to the District Court on 3 May 2010.
The learned Magistrate convicted and sentence the appellant on 29 June 2010.
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She, however, took into account a previous conviction dated 12 November 2009 in
respect of a similar offence and which had been committed on 7 April 2008.

It is now nearly 8 years since the offence was committed on 22 August 2004. The
information was only lodged before the District Magistrate of Grand Port on 15 January
2007. The appellant was acquitted on 14 August 2008 and it was following the appeal
process initiated by the Director of Public Prosecutions that the appellant was eventually
convicted and sentenced by the District Magistrate on 29 June 2010 after the case had
been remitted by the Supreme Court. In view of the nature of the case which had no
inherent complexity and the hearing of which was relatively short, there has already been
an inordinate delay of 8 years since the commission of the offence. Furthermore, the
appellant, who had been acquitted by the trial Court in August 2008, has not in any way
been instrumental in causing or contributing to the delay. Such a delay would in the
circumstances constitute a breach of the reasonable time guarantee as contemplated by
section 10 of the Constitution. When the case was heard subsequently by the learned
Magistrate on 29 June 2010, the appellant was inops consilii and it does not appear from
the record that he was given an adequate opportunity to show that the sentence could in
the circumstances be disproportionate or inappropriate.

We consider that, in view of the foregoing and the following factors, there is a
justification for a reduction of the sentence which is disproportionately unfair and severe -

(1) The mandatory sentence has been imposed in view of the previous
conviction of the appellant. But the previous conviction is dated
12 November 2009 and is in respect of an offence which was committed
on 7 April 2008 whilst the initial offence, for which he was sentenced to
6 months imprisonment and to pay Rs 20,000, was committed much
earlier i.e. on 22 August 2004. The intention of the legislator in prescribing
a mandatory minimum of 6 months’ imprisonment for a second conviction
under section 123F(4) was clearly meant for those offenders who had not
learnt their lesson and went on to commit a similar offence subsequently
i.e. after they had been already convicted and sentenced on a first
occasion. Not only is this not the case here but this situation has been
brought about, independently of the will of the appellant. As a result of the
delay in the process, he has been subjected to a higher custodial
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sentence because in the meantime he has been convicted in November

2009 for an offence which he committed in 2008 i.e. 4 years after the
commission of the offence for which he is now being punished.

(2) Worse still, the previous conviction relied upon for imposing the mandatory
minimum sentence was not put to the appellant nor produced in conformity
with section 211 of the Criminal Procedure Act. ‘Section 211 of the
Criminal Procedure Act sets out the manner in which the previous
conviction of an accused must be proved. Not only must the certificate
containing the substance and effect of the charge and conviction signed
by the clerk or registrar be produced, but proof of the identity of the person
must also be established. These requisites obviously become superfluous
if the accused admits his previous conviction as set out in the previous
conviction certificate. But the accused must make such admission before
the requisites of proving his previous conviction can be dispensed with.
(Diouman v R. [1990 MR 312]). In this case there is nothing on record to
show that the certificate of previous conviction was read out to the
accused nor admitted by him.

(3) Moreover, the learned Magistrate, as rightly conceded by learned Counsel

for the respondent, failed to give an adequate opportunity to the appellant
to adduce evidence or to make any representations with regard to
sentence. The appellant was inops consilii. Although he was exposed to
a custodial sentence, the appellant was not given any opportunity to put
forward any reason which he might have had to show that such a
sentence would in his case, or in the circumstances, be disproportionate
or inappropriate.

In view of all the above factors, the mandatory penalty of 6 months’ imprisonment
imposed in view of a previous conviction would not be in order as it would bring harsh
and inequitable results which would undoubtedly be ‘startingly or disturbingly
inappropriate’ and accordingly disproportionate. (Philibert v The State [2007 SCJ 274]
and Bhinkah v The State [2009 MR 44]). The minimum sentence of 6 months’
imprisonment would, in the circumstances, not only be manifestly harsh and wrong in
principle but also ought to be reduced to mark the undoubted constitutional breach of the
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reasonable time guarantee which is essential to a fair hearing (Elaheebocus v The State
of Mauritius [2009 MR 323] and Moodoosoodun v The State [2010 MR 319]).

We cannot, however, overlook and fail to put into the balance the gravity of the
offence. Appellant had 143 milligrams Ethyl Alcohol per 100 millilitres of blood whilst the
permissible limit was only 50 milligrams as he drove his truck to a police station. We are
alive to the fact that in the absence of aggravating factors like e.g. an accident, offenders
have not very often in the past received a custodial sentence for a first offence. The
situation, however, has dramatically changed with the recent alarming increase in
accidents involving drunk driving. With the heavy increase in traffic on our roads,
offenders like the appellant represent a high security risk, seriously putting at stake not
only the personal life of passengers travelling in their vehicles and other vehicles but also
that of the more vulnerable users of our roads such as cyclists, motorcyclists and
pedestrians. Past sentencing policy consisting of substantial fines and disqualification
and cancellation orders, has utterly failed to prove effective as a deterrent. In view of the
number of such offences which is constantly on the increase and the serious threat which
the commission of such offences represent to the lives of other innocent and law-abiding
road users, nothing short of a custodial sentence is likely to act as a deterrent to potential
offenders. There must be a clear signal to potential offenders of that sort that they would
not be dealt with leniently by the Courts. The public interest in curbing such offences and
in protecting human life therefore eloquently require a custodial sentence even for a first
offender unless there exists any special mitigating reason which would justify a
non-custodial sentence. There is none of that sort in the present case.

In view of what we have stated above, we amend the sentence by reducing the
term of 6 months’ imprisonment to 2 months’ imprisonment so that the sentence imposed
would now be a fine of Rs 20,000 and a term of 2 months’ imprisonment. The appeal is
allowed to this extent only. The order for endorsing and cancelling the driving licence of
the appellant and for disqualifying him from driving all types of vehicles for a period of
8 months remain unchanged and is maintained.

A. Caunhye
Judge

N. Devat
30 July 2012 Judge
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Judgment delivered by Hon. A. Caunhye

For Appellant: Mrs. Attorney R. Brigemohane

Mrs. P. Balgobin-Bhoyrul, together with Ms. N. Ahmine,
of Counsel

For Respondent: Mrs. D. Dabeesing-Ramlugan, Senior State Attorney

Ms. K. Soochit, State Counsel