Thrumoorthy s/o Ganapathi Pillai v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 05 August 2010
• Neutral Citation: [2010] SGHC 223
• Plaintiff Counsel: Ramesh Tiwary (M/s Ramesh Tiwary)
• Docket Number: Magistrate’s Appeal No 346 of 2009 (DAC No 33896 of 2008)
• Date: 05 August 2010
• Hearing Date: 16 July 2010,30 July 2010
• Subject Matter: Criminal Law
• Year: 2010
• Citation: [2010] SGHC 223
• Defendant Counsel: Christopher Ong Siu Jin (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Published date: 06 August 2010

Choo Han Teck J:

This was an appeal by Thrumoorthy s/o Ganapathi Pillai (the “Appellant”) against a two year disqualification sentence (“DQ”) imposed on him after being convicted for drink driving pursuant to s 67(1)(b) of the Road Traffic Act (Cap 376, 2004 Rev Ed) (“RTA”). At the conclusion of the first hearing on 16 July 2010, I directed the Prosecution to make further submissions on whether the fact that an accused chose to stop by the road after finding himself intoxicated could be considered a mitigating factor.

In PP v Rangasamy Subramaniam Criminal Reference No 3 of 2010 (“Rangasamy”), the Court of Appeal dealt with a similar case. Although the court there was dealing with the issue of whether the presumption provision of s 71A(1) applied to an accused charged pursuant to s 67(1)(b), the practical effect of that case is that an accused person could be liable to a charge of drink driving even though he was sleeping inside the vehicle at the side of the road. The court’s grounds of decision have yet to be released.

If a driver knows that he is intoxicated and voluntarily stops by the road shoulder to either (a) prevent an accident from occurring for his continued driving, or (b) to avoid a greater contravention of the law, it seems to me that this voluntary arrest of risk deserves some form of credit. Even though these intoxicated sleeping drivers have, as a result of the Rangasamy case, been determined to be liable for the same s 67(1)(b) offence, the court ought to distinguish such accused persons from those offenders who are caught in the actual act of driving in so far as sentencing is concerned. Other than the Rangasamy case, there are no written decisions on similar cases canvassing the applicable sentencing considerations. In principle however, there are two main reasons why such a fact should be considered a mitigating circumstance.

Firstly, in the case of the intoxicated sleeping driver, his culpability has been mitigated by his voluntary act of averting harm. Naturally, a driver who had continued driving would logically have been an active risk to fellow road users who come into contact with that errant driver. Conversely, the potential harm of the crime would have decreased if the offender voluntarily arrests the risk at hand. See Thorneloe v Filipowski [2001] NSWCCA 213 as per Speigelman CJ at [130]. It would thus be unfair to say that the two types of drivers above are equally culpable. Secondly, it seems...