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Hiram v Republic [1979] NRSC 3; [1969-1982] NLR (D) 80 (6 August 1979)

[1969-1982] NLR (D) 80

IN THE SUPREME COURT OF NAURU

Criminal Appeal No.12 of 1979

HIRAM

v

THE REPUBLIC OF NAURU

6th August, 1979.

Driving under the influence of intoxicating liquor - sentence - imprisonment other than in an exceptional case - what is an exceptional case.

Appeal against the sentences of one month's imprisonment and two months' imprisonment imposed upon conviction for two offences of driving a motor vehicle while under the influence of intoxicating liquor. Evidence was given of the appellant's exceptional record of hard work and devotion to duty, as a senior officer of the Nauru Phosphate Corporation, and of his exceptional family circumstances, in particular the need for him personally to look after one of his children who was blind. The respondent did not oppose the appeal.

Held: This was an exceptional case in which sentences of imprisonment need not be opposed. It was exceptional because the appellant's' previous conduct went well beyond being mere "previous good character", and his family circumstances were most unusual, so that imprisonment would have caused extreme hardship.

Appeal allowed; both sentences set aside and fines of $50 and $100 imposed in their place.

B. Dowiyogo for the appellant
P.A. Thorpe for the respondent

Thompson CJ:

This Court has made it known in many cases that, because of the prevalence of offences of driving while intoxicated and because of the heavy toll of life and limb which has been the result, deterrent sentences have to be imposed for such offences. That being so, the sentences imposed by the magistrate were neither wrong in principle nor harsh and excessive. Indeed only in an exceptional case can the Courts properly avoid imposing such a sentence for a second offence.

This Court is asked to decide that this is such an exceptional case. Mr. Thorpe, appearing; for the Republic, has agreed with Mr. Dowiyogo that it is. The relevant matters are the quite exceptional record of hard work and devotion to duty, of which the referees speak; that goes far beyond mere “previous good character”. Then there are the exceptional family circumstances of the appellant and the greater than usual hardship which will result to his family from the imprisonment of the appellant. Mr. Thorpe has accepted the factual accuracy of these matters; so this Court should also do so.

Taking these matters into account and the support given by Mr. Thorpe to the plea for leniency made by Mr. Dowiyogo and after some considerable hesitation - I have come to the conclusion that this is the sort of exceptional case in which it is proper for the Courts not to impose a sentence of imprisonment.

Accordingly the appeals are both allowed. The sentences imposed for both offences are set aside. In respect of the first offence the appellant must pay a fine of $50 and, in respect of the second offence a fine of $100.

The District Court had no discretion to do otherwise than to suspend the appellant’s driving licence for a least six months; nor has this Court. Nor does the Motor Traffic Act 1938-1972 give the Courts any power to limit suspension under section 21 (3) (a). In the past the District Court has assumed a power to do so where the suspension is ordered under section 21 (3) (b). I am by no means sure that it has that power. In any case, in view of the senior position held by the appellant, it would not be unreasonable to expect the Nauru Phosphate Corporation to provide a driver to drive him where he needs to go in the course of his work. Accordingly, no order will be made in respect of the suspension of the appellant’s driving licence. The orders made by the District Court will stand.