CURPEN S v THE STATE

2010 SCJ 256

Record No. 7604

IN THE SUPREME COURT OF MAURITIUS

In the matter of:-

Surendra Curpen
Appellant
v.

The State
Respondent

JUDGMENT

The appellant was prosecuted before the District Court of Rose Hill on three counts
of an information for having infringed the Road Traffic Act (the Act) by driving a motor vehicle
(i) whilst being under disqualification in breach of section 53 (1) 4(b), (c) and 52, (ii) with the
proportion of alcohol concentration above the prescribed limit, in breach of section
123F(1)(a)(3)(4) as amended by section 5 and 12 of the Road Traffic (amendment) Act 9/03
and 52 and (iii) without insurance contrary to section 55(1)(a)(2) as amended by section 4 of
Act 14/2006 and 52. He pleaded guilty to all three counts, and after conviction was
sentenced as follows:

(i) Count 1 - two weeks imprisonment.

(ii) Count 2 - a fine of Rs 10,000 and 6 months imprisonment.
(iii) Count 3 - a fine of Rs 2,000.

With respect to counts 2 and 3, the learned Magistrate further ordered that the appellant be
disqualified from holding and obtaining a driving licence in respect of all types of vehicle for a
period of eight and three months respectively, and that his licence be cancelled and
endorsed.

The appellant now challenges the custodial sentence imposed by the learned
Magistrate under the first and second counts. On the day of the hearing, learned Counsel
for the appellant abandoned the first ground of appeal questioning the two weeks
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imprisonment passed by the learned Magistrate under the first count. He however, invited
us, in the light of the pronouncement of the Judicial Committee of the Privy Council in
M.I. Callachand & Anor v The State [2008] UK PC 49, to amend the judgment by ordering
that the period of 13 days, spent on remand by the appellant prior to his release on bail
following his conviction and sentence, be deducted from his sentence of imprisonment.

As regards the second ground of appeal, it is the submission of learned Counsel that
the appellant, having been previously convicted of an offence under section 123F of the Act,
was accordingly a second or subsequent offender. Consequently, section 123F(4) of the Act
which provides for a fine of not less than Rs 20,000 and not more than Rs 50,000 together
with imprisonment for a term of not less than 6 months nor more than 12 months in the event
of a second or subsequent conviction, would become operative. It therefore follows, so
argued learned Counsel for the appellant, that the trial Court was bound to apply section
123F (4) in sentencing the appellant under count 2. However, by reason of the operation of
section 114 of the Courts Act which empowered the District Court to inflict a maximum fine of
Rs 10,000 and imprisonment not exceeding 2 years, the trial Court therefore had no
jurisdiction to try, convict and sentence the appellant under count 2 of the information.

In reply to the above, learned State Counsel submitted that section 123F (4) of the
Act would only apply to a previous conviction resulting from a prosecution under section
123F of the Act. The appellant’s previous conviction being one in respect of a section 123E
offence, namely that of driving under the influence of intoxicating liquor, the learned
Magistrate had accordingly, the jurisdiction to convict and sentence the appellant under
section 123F of the Act.

We note from the court record of the District Court that after a certificate of previous
conviction (Doc X) had been produced and admitted by the appellant, the learned Magistrate
made an observation to what she believed was a relevant previous conviction. On the
prosecutor confirming that the previous conviction of the appellant was one in respect of a
section 123F offence, the learned Magistrate, raised the question as to whether she was
empowered to pass the appropriate sentence under section 123F(4) of the Act by reason of
section 114 of the Courts Act. She accordingly invited the prosecution to take a stand on
that issue. After several postponements, the prosecution invited the trial Court to proceed
to sentence the appellant – which it did by imposing a fine of Rs 10,000 and 6 months
imprisonment.
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We have perused the court record of the District Court of Moka, the Court before
which the appellant was convicted and sentenced on a previous occasion for a drink driving
related offence. It is common ground that the appellant had been prosecuted before the
District Court of Moka under section 123E of the Act for the offence of driving under the
influence of liquor for which he was fined Rs 10,000 and disqualified from holding and
obtaining a driving licence in respect of auto cycle for a period of 8 months. He has no
previous conviction therefore in respect of any offence under section 123F of the Act.

We find it appropriate to set down the relevant provisions of sections 123 E and
123 F of the Road Traffic Act. Subsections (1) (a) and (2) of section 123E provide:

“(1) Any person who –

(a) when driving, or attempting to drive, a motor vehicle on a road or other
public place;
(b) …..

is unfit to drive by reason of his being under the influence of an intoxicating

drink or of a drug to such an extent as to be incapable of having proper
control of the vehicle, shall commit an offence and shall, on conviction, 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.

(2) 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.”

Subsections (1) (a) (3) and (4) of section 123F read:

“(1) Where a person –

(a) drives or attempts to drive a motor vehicle on a road or other public

place; or
(b) …..

after consuming so much alcohol that the proportion of it in his breath, blood
or urine exceeds the prescribed limit, he shall commit an offence.
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(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.”

As rightly pointed out by learned Counsel for the respondent, so that an offender may
be caught under section 123F(4) of the Act, his previous conviction must necessarily be one
in respect of the offence of driving with alcohol level above the prescribed limit contrary to
section 123F. It is then, and only then, that the trial Court is called upon to apply section
123F(4) of the Act in sentencing the offender for a section 123 F offence. In the present
instance, the appellant was convicted for the offence of driving whilst under the influence of
intoxicating drinks in breach of section 123E of the Act. It therefore follows that to all intents
and purposes the appellant was a first offender in so far as a section 123F offence is
concerned. The learned Magistrate was clearly misled in considering the appellant as a
second or subsequent offender for the purposes of sentencing him in respect of a section
123F offence, and to that extent only was wrong when passing sentence on the appellant.
We consider therefore, that it was open to the Magistrate to impose a fine of Rs 10,000 and
6 months imprisonment which she was empowered to do under the law (vide Adelaide G.
and Ah Yeung Chan Sow J. v. The State [2003 SCJ 159]).

Learned Counsel for the appellant however submitted before us that since the
learned Magistrate proceeded on the wrong premises and sentenced the appellant to a
custodial sentence which course she may not have adopted had she considered the
appellant as a first offender, we ought to exercise our discretionary powers to quash the
sentence of 6 months imprisonment and substitute it by a fine. It is our view that the specific
laws and severe penalties for offences linked to drink driving express the clear intent of the
legislature to take all strong measures towards reducing the number of road accidents and
loss of human lives, and from deterring drivers from using the road system while under the
influence of alcohol/or drugs. We find it appropriate to reproduce the views of this Court in
the case of Gunputh S.P. & Others v. The State [2007 SCJ 128], on section 123F of the
Act:
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“Section 123F of the Act was created by [Act No. 9 of 2003] which also
amended its Schedule. It is apparent from a reading of the debates of the
National Assembly on 27 May 2003 that drink driving has been a major
factor contributing to road accidents in Mauritius. The panoply of measures
introduced by the legislature including the reduction of the legal limit of
alcohol from the previous norm and the stiffening of penalties for drink
driving, was therefore meant to deter the commission of such offences which
often result in jeopardizing other people’s life, safety and security. We are of
the view that in present day Mauritius, the minimum penalty provided by the
new legislation of 2003 is perfectly in order and reasonable and is a far cry
from being disproportionate considering the potential seriousness of the
consequences of drink driving.”

We have not been persuaded by the arguments of learned Counsel that a custodial
sentence was not warranted in the circumstances of the case. The appellant was found to
have 102 milligrams of alcohol in his blood in excess of the prescribed amount of 50.
We cannot but take a serious view of the offence committed by the appellant. The appellant
flouted the law by partaking alcoholic drinks more than twice the permissible limit and drove
his vehicle in such a condition which represented a serious danger not only for his own
safety and but also for that of other road users. Furthermore, we find that the appellant
committed the present offence barely 4 months after his conviction on 26 November 2007 for
the offence of driving whilst under the influence of liquor for which he was fined and
disqualified from holding and obtaining a driving licence in respect of auto cycle for a period
of 8 months. In the circumstances, we find that a custodial sentence was fully warranted.
There should be a strong signal and deterrent to drivers like the appellant who might be
tempted to use our road system while under the influence of alcohol/or drugs and commit
road traffic related offences which are likely to jeopardise other people's safety and security.

We are nonetheless of the view that since the learned Magistrate acted on the wrong
premises when applying section 123F(4), as a result of which she sentenced the appellant
to a term of 6 months imprisonment, a modest reduction in the term of imprisonment will be
justified. We consider for the reasons given above, that the right balance would be struck by
granting the appellant a reduction of 2 months from the term of 6 months imprisonment. We
also agree with the submissions of learned Counsel for the appellant that in the light of
Callachand v The State (supra), the period spent on remand by him should be deducted
from his sentence. We therefore quash the term of six months imprisonment and substitute
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for it a term of four months imprisonment from which shall be deducted 13 days which is the
period spent in custody by the appellant pending his release on bail. All the other sentences
imposed by the learned Magistrate are maintained.

The appeal is otherwise dismissed with costs.

A. Caunhye
Judge

N. Devat
Judge

23 July 2010

Judgement delivered by Hon. N. Devat, Judge

For Appellant : Mr Attorney B. Rampoortab

Mr V. Rampoortab, of Counsel

For Respondent : State Attorney

State Counsel