Stansilas Fabian Kester v Public Prosecutor

JudgeSundaresh Menon CJ
Judgment Date28 July 2017
Neutral Citation[2017] SGHC 185
Citation[2017] SGHC 185
Defendant CounselWong Woon Kwong (Attorney-General's Chambers)
Published date02 August 2017
Hearing Date27 April 2017
Plaintiff CounselK Muralidharan Pillai and Jonathan Lai (Rajah & Tann LLP)
Date28 July 2017
CourtHigh Court (Singapore)
Docket NumberMagistrate’s Appeal No 9320 of 2016/01
Subject MatterCriminal Procedure and Sentencing,Principles,Benchmark sentences,Sentencing,Drunk driving causing hurt or injury
Sundaresh Menon CJ:

This is an appeal against the sentence imposed on the appellant for the offence under s 67(1)(b) of the Road Traffic Act (Cap 276, 2004 Rev Ed) (“the RTA”), of driving a motor vehicle, having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit. The appellant accelerated toward a road traffic junction after seeing the traffic signal turn amber. However, by the time he reached the junction, several seconds had passed after the signal had turned red against him. Pedestrians had started to cross the road and motorists were moving off across the line of travel of the appellant’s vehicle. The appellant’s vehicle continued through the junction, brushed past a pedestrian and collided into a motorcyclist, who was flung off his motorcycle. Fortunately, neither victim suffered very serious injuries. The appellant pleaded guilty to a charge under s 67(1)(b) of the RTA and consented to a separate charge of dangerous driving under s 64(1) of the RTA being taken into consideration for the purpose of sentencing. He was sentenced by the district judge to two weeks’ imprisonment for the s 67(1)(b) offence and also disqualified from holding or obtaining a driving license for a period of three years from the date of his release from prison.

This appeal concerns the approach to be taken when sentencing a person who has caused damage or injury while committing the offence of drunk driving. In Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139 (“Edwin Suse”), I set out a sentencing framework for this offence focusing on the relationship between the offender’s alcohol level and the appropriate level of punishment to be imposed. The question that arises in this appeal is whether and how that framework should be modified where the drunk driving has resulted in physical harm to a person and/or property, having regard to the fact that those are the very consequences that the prohibition on drunk driving was intended to prevent. More specifically, it raises the following question: in light of the sentencing range provided under s 67(1)(b), is the custodial threshold crossed once a drunk driver causes injury and/or property damage?

The appellant is a regular serviceman in the Singapore Armed Forces (“the SAF”) and presently holds the rank of Major. He argues in mitigation that the contributions to the public that he has made over the course of a 15-year career with the SAF should be factored into the sentencing analysis, and that the court ought also to consider that he has already had certain bonuses and increments withheld and will be discharged from the SAF if a custodial sentence is imposed on him. It is therefore necessary in this appeal also to determine whether these arguments are sound as a matter of principle.

The appellant and the charges

The appellant, Mr Stansilas Fabian Kester, is a 35-year-old male Singapore citizen. He faced two charges under the RTA. The appellant pleaded guilty before a district judge (“the District Judge”) to the first charge, which concerned the offence of driving with a breath alcohol level exceeding the prescribed limit under s 67(1)(b) of the RTA. The charge reads as follows:

You … are charged that you, on the 29th January 2016, at about 4.43 p.m, along the signalized cross junction of South Bridge Road by Upper Pickering Street, Singapore, when driving motor car, SJX1035Z, did have so much alcohol in your body that the proportion of it in your breath, to wit, not less than 43 microgrammes of alcohol in 100 millilitres of breath, exceeded the prescribed limit of 35 microgrammes of alcohol in 100 millilitres of breath and you have thereby committed an offence punishable under Section 67(1)(b) of the Road Traffic Act, Chapter 276. [emphasis in bold in original]

The appellant consented to the second charge, for the offence of driving in a manner which is dangerous to the public under s 64(1) of the RTA, to be taken into consideration for the purpose of sentencing. That charge is as follows:

You … are charged that you, on the 29th January 2016, at about 4.43 p.m, did drive motor car, SJX1035Z along the signalized cross junction of South Bridge Road by Upper Pickering Street, Singapore, in a manner which was dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road, and the amount of traffic which was actually at the time, or which might reasonably be expected to be, on the road, to wit, by failing to conform to the traffic red light signal whilst driving straight across the junction of South Bridge Road by Upper Pickering Street and thus resulting in a collision with a female pedestrian, Norhayati Bte Omar, who was crossing the road on signalized green man and you continued forward into the junction and collided onto motorcycle FBK6019B, who was proceeding straight along Upper Pickering Street on signalized green light and you have therefore committed an offence punishable under Section 64 (1) Road Traffic Act, Chapter 276. [emphasis in bold in original]

The District Judge sentenced the appellant to two weeks’ imprisonment and ordered that the appellant also be disqualified from holding or obtaining a driving license for a period of three years from the date of his release from prison. The District Judge’s reasons are set out in his grounds of decision, Public Prosecutor v Stansilas Fabian Kester [2016] SGDC 361 (“the GD”). I begin by setting out the facts in brief.

The facts

In the afternoon of 29 January 2016, the appellant consumed three mugs of beer at a lunch gathering at the Clarke Quay Central shopping mall. The appellant explained that he had driven to the venue, not expecting to consume any alcoholic drinks. After the event, he contemplated taking public transport home because he had consumed some alcohol, but finally decided to drive home as he felt sufficiently sober and believed the drive home would only take about six minutes.

At about 4.43 pm, the appellant was driving along South Bridge Road toward the signalised cross junction of South Bridge Road and Upper Pickering Street. As he was heading towards the junction, he noticed that the traffic light controlling his line of travel had turned amber. As will become apparent, he must have been at some considerable distance from the junction at this time. Presumably because his judgment was impaired, instead of slowing down with a view to stopping, he accelerated, hoping to get through the junction. By the time he reached the junction, the traffic signal had turned red. The evidence suggests that the traffic light controlling the traffic going perpendicular to and across the appellant’s line of travel had turned green about four seconds before the appellant entered the junction. The signal controlling his line of travel must therefore have turned red some time before that. The appellant did not stop. As he entered the junction, his car brushed against a female pedestrian, V1, who was crossing the road with the signalised green man in her favour.

The appellant’s car continued into the road junction. A motorcyclist, V2, had also entered the junction with the signalised green light in his favour and was proceeding along Upper Pickering Street in a direction perpendicular to the appellant’s line of travel. The appellant’s car collided into the left side of V2’s motorcycle. The force of the impact flung V2 off the motorcycle, and he rolled across the bonnet and windscreen of the appellant’s car before he hit the road. V2 momentarily lost consciousness upon hitting the road.

A breathalyser test was administered when the Police arrived and the appellant failed the test. He was then arrested on suspicion of having driven whilst under the influence of alcohol and escorted to the Traffic Police headquarters, where a Breath Evidential Analyser (“BEA”) test was conducted on him. The test showed the appellant to have 43μg of alcohol in every 100ml of breath. This was about 1.23 times above the prescribed limit of 35μg per 100ml of breath, as set out in s 72(1) of the RTA. The victims were conveyed to Singapore General Hospital. V1 was found to have suffered a crush injury of the right foot, with swelling over the right foot and tenderness over the entire right mid foot and toes and a small abrasion over the corner of her right big toenail. She was given eight days of medical leave. V2 experienced retrograde and anterograde amnesia. He was observed in a ward for three days before he was discharged. Upon subsequent examination, he was found to have no neurological deficits and given 14 days’ hospitalisation leave. The collision also resulted in scratches all over V2’s motorcycle as well as twisted right and left wing mirrors. The front bonnet of the appellant’s car was dented, the front windscreen was cracked as were both front headlights, and the front bumper was scratched.

The District Judge’s decision

The Prosecution sought a custodial sentence of two weeks’ imprisonment, while the appellant (acting through his counsel, Mr K Muralidharan Pillai) submitted that the custodial threshold had not been crossed and that a fine should be imposed instead.

The District Judge referred to the observation in Sentencing Practice in the Subordinate Courts (LexisNexis, 3rd Ed, 2013) at p1721 that “[g]enerally, a fine is the norm for a first offender unless there are aggravating circumstances [such as] high levels of impairment of driving or intoxication as well as involvement in an accident resulting in personal injuries”. He then cited the decisions in Public Prosecutor v Lee Meng Soon [2007] 4 SLR(R) 240 (“Lee Meng Soon”) and Edwin Suse, and identified from the latter case two points of principle. First, where injury or property damage has been caused, a longer period of disqualification should generally be imposed, in conjunction with a higher fine or, where...

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