*Bainivalu was sentenced on 30 October 2023 by Chief Magistrate Waleen George, fined $300 and disqualified from driving for 90 days. The evidential breath test had returned a reading of 92.4mg of alcohol per 100ml of blood – above the legal limit of 80mg per 100ml of blood. No conviction was recorded because Magistrate George said he could lose his job.
In his letter to the Acting Chief Justice Salesi Temo, FLP leader Chaudhry said:
“In our view, Mr Bainivalu’s guilty plea to a serious charge of driving under the influence of alcohol is sufficient evidence of admission of gross misbehaviour on his part which should give rise to commencement of proceedings under s112 of the Constitution”.
Fijileaks: It is another example of i-Taukei now above the law in Fiji.
Magistrate WALEEN GEORGE had ruled that a conviction could potentially tarnish Bainivalu’s reputation and impact his career as Chief Registrar
Tomasi Bainivalu when he was Resident Magistrate, Sigatoka, 2015:
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TOMASI BAINIVALU, Resident Magistrate, Sigatoka to CAITANYA DASS,
13 February, 2015:
*I find that by driving whilst under the influence of alcohol, you placed the lives of other motorists and pedestrians at peril. I treat this as an aggravating factor. There are just too many accidents on our roads owing to the reckless attitude of drivers like you who do not realise, often until it is too late, that alcohol and driving do not mix. They are a deadly combination. Your sentence should therefore reflect the concern of the lawmakers and of the public in respect of drivers who drink alcohol and drive.
*On the facts of this case, I hereby fine you in the sum of $1,000.00.
*You are also disqualified from holding or obtaining a driver's licence on any groups for 12 months. *I have considered your income, and pursuant to s.34 of the Sentencing and Penalties Decree of 2009, I order that you pay the fine of $1,000, over 3 months, in 3 instalments: two instalments of $350 each and one instalment of $300.00.
*The first payment of $350.00 is payable in a month's time from to date, which means you will need to pay it by 16/03/15. The second payment of $350.00 should be paid by 13/04/15, and with the balance of $300.00 payable by 18/05/15.
*Default in the payment of each penalty unit ($100) or a part thereof, will incur 10 days imprisonment; i.e. the court totals the imprisonment default term at any default monthly payment to twenty five (25) days imprisonment each.
:
FLP queries the Chief Registrar Bainivalu case
Fiji Labour Party is concerned that the Chief Registrar Tomasi Bainivalu continues to hold judicial office despite pleading guilty to a charge of driving with excess breath alcohol.
“The case has given rise to serious concerns on the rule of law and the administration of justice in Fiji,” said Labour Leader Mahendra Chaudhry
Labour wrote to the Acting Chief Justice Salesi Temo on 8 November 2023 urging that the Judicial Service Commission begin the process for a Tribunal to be appointed to investigate Bainivalu for misbehaviour, as it did in the case of former Chief Justice, the late Kamal Kumar.
Labour is also concerned at the rather lenient sentence imposed on Bainivalu, without a conviction being recorded, although he had pleaded guilty to the charge.
Bainivalu was sentenced on 30 October 2023 by Chief Magistrate Waleen George, fined $300 and disqualified from driving for 90 days. The evidential breath test had returned a reading of 92.4mg of alcohol per 100ml of blood – above the legal limit of 80mg per 100ml of blood.
No conviction was recorded because Magistrate George said he could lose his job.
“Why the favoured treatment? Everyone should be equal before the law.
“It is also rather disconcerting that the DPP has not seen it fit to appeal this sentence and that the Fiji Law Society has also remained silent on this issue which goes to the heart of the rule of law,” said Mr Chaudhry.
Being a senior judicial officer with over 30 years’ service, Mr Bainivalu knew well that he should not have driven after consuming alcohol which gave rise to criminal proceedings against him.”
Mr Chaudhry also questioned why the matter was called in closed court: “This is an anathema to open justice and the rule of law. There appears to be no compelling reason for it.”
Mr Chaudhry cited a similar case in 2015 (State v Dass [2015] FJMC 18), where sitting as resident magistrate in the Sigatoka Magistrate’s Court, Tomasi Bainivalu had dealt harshly with a person accused of drunken driving because he had “placed the life of other motorists and pedestrians at peril”.
“Your sentence should … reflect the concern of the lawmakers and of the public in respect of drivers who drink alcohol and drive.”
Magistrate Bainivalu fined the accused $1000 and disqualified him from driving for 12 months. (Copy of sentencing notes attached)
In his letter to the Acting Chief Justice Salesi Temo, Mr Chaudhry said:
“In our view, Mr Bainivalu’s guilty plea to a serious charge of driving under the influence of alcohol is sufficient evidence of admission of gross misbehaviour on his part which should give rise to commencement of proceedings under s112 of the Constitution”.
Fiji Labour Party is concerned that the Chief Registrar Tomasi Bainivalu continues to hold judicial office despite pleading guilty to a charge of driving with excess breath alcohol.
“The case has given rise to serious concerns on the rule of law and the administration of justice in Fiji,” said Labour Leader Mahendra Chaudhry
Labour wrote to the Acting Chief Justice Salesi Temo on 8 November 2023 urging that the Judicial Service Commission begin the process for a Tribunal to be appointed to investigate Bainivalu for misbehaviour, as it did in the case of former Chief Justice, the late Kamal Kumar.
Labour is also concerned at the rather lenient sentence imposed on Bainivalu, without a conviction being recorded, although he had pleaded guilty to the charge.
Bainivalu was sentenced on 30 October 2023 by Chief Magistrate Waleen George, fined $300 and disqualified from driving for 90 days. The evidential breath test had returned a reading of 92.4mg of alcohol per 100ml of blood – above the legal limit of 80mg per 100ml of blood.
No conviction was recorded because Magistrate George said he could lose his job.
“Why the favoured treatment? Everyone should be equal before the law.
“It is also rather disconcerting that the DPP has not seen it fit to appeal this sentence and that the Fiji Law Society has also remained silent on this issue which goes to the heart of the rule of law,” said Mr Chaudhry.
Being a senior judicial officer with over 30 years’ service, Mr Bainivalu knew well that he should not have driven after consuming alcohol which gave rise to criminal proceedings against him.”
Mr Chaudhry also questioned why the matter was called in closed court: “This is an anathema to open justice and the rule of law. There appears to be no compelling reason for it.”
Mr Chaudhry cited a similar case in 2015 (State v Dass [2015] FJMC 18), where sitting as resident magistrate in the Sigatoka Magistrate’s Court, Tomasi Bainivalu had dealt harshly with a person accused of drunken driving because he had “placed the life of other motorists and pedestrians at peril”.
“Your sentence should … reflect the concern of the lawmakers and of the public in respect of drivers who drink alcohol and drive.”
Magistrate Bainivalu fined the accused $1000 and disqualified him from driving for 12 months. (Copy of sentencing notes attached)
In his letter to the Acting Chief Justice Salesi Temo, Mr Chaudhry said:
“In our view, Mr Bainivalu’s guilty plea to a serious charge of driving under the influence of alcohol is sufficient evidence of admission of gross misbehaviour on his part which should give rise to commencement of proceedings under s112 of the Constitution”.
IN THE RESIDENT MAGISTRATE'S COURT AT THE
WESTERN DIVISION-SIGATOKA
Traffic Case No: - 224/2015
STATE
–v-
CAITANYA DASS
BEFORE : - Resident Magistrate, Tomasi Bainivalu
For Prosecution : - WPC 3348 Elina Lotudina Cerei
For Accused : - Present in person.
Date of Sentence :- 13th February, 2015
Place of Sentence :- Sigatoka Magistrates Court
SENTENCE
On the above date, time and place ASP Samisoni Naqica (PW1) Officer in Charge of Sigatoka Police Station was conduction operation around Sigatoka area in Flet 49 with the Operation Team consisting of PC 4360 Apakuki and PC 4702 Asaeli and was patrolling along Muasara Seaside when PW1 saw the Accused's vehicle parking at the far end of the tar sealed road at Muasara. Whilst approaching the Accused's vehicle the passengers boarded the vehicle and Accused drove away. PW1 then confronted the Accused and managed to stop him by parking in front of Accused's vehicle. PW1 approached Accused and ordered him to come outside the vehicle. The Accused was heavily smelt of liquor and was arrested at the scene and escorted to Sigatoka Police Station.
At Sigatoka Police Station PC 1639 Praneel Gounder conducted breath test of the Accused and the result was 74 micrograms of alcohol per 100 milliliters of breath which was multiplied by 2.2 in accordance with Regulation 3 (3) of Breath Test and Analysis Regulation 2000 and the result was 162.8 milligrams of alcohol which was in excess of prescribed limit.
Upon receipt of the report PC 3780 Tevor (C-1) was appointed the investigating officer whereby Accused was caution, interviewed, charged and bail to appear Sigatoka M.C. on 10/02/15"
...................................
Mr Tomasi Bainivalu
Resident Magistrate
Sigatoka.
WESTERN DIVISION-SIGATOKA
Traffic Case No: - 224/2015
STATE
–v-
CAITANYA DASS
BEFORE : - Resident Magistrate, Tomasi Bainivalu
For Prosecution : - WPC 3348 Elina Lotudina Cerei
For Accused : - Present in person.
Date of Sentence :- 13th February, 2015
Place of Sentence :- Sigatoka Magistrates Court
SENTENCE
- CAITANYA DASS, you pleaded guilty to driving a motor vehicle whilst there was present in the blood a concentration of alcohol in excess of the prescribed limit, contrary to section 103 (1) (a) and 114 of the Land Transport Authority Act,35 of 1998. When the summary of facts was read out by the prosecution, you admitted it as a true account of your offending. I find you guilty and convict you accordingly.
- To be able to sustain a charge under s. 103 (1) (a) of the Land Transport Authority Act 1998, the prosecution will need to read facts or lead evidence that
- The accused
- Drove a motor vehicle
- Whilst more than the prescribed concentration of alcohol is present in his blood.
- Regulation 3 (1) of the Land Transport (Breath Tests and Analyses) Regulations 2000 provides that the prescribed concentration of alcohol is 80 milligrams of alcohol in 100 millilitres of blood.
- Sub regulation (2) of regulation 3 provides that evidence that there is alcohol in the blood in excess of the prescribed concentration at a relevant time may be given by either reference to a sample of the person's blood taken with his or her consent, or by reference to the reading on a breath analysing instrument in accordance with sub regulation (3).
- That sub regulation provides that a reading on a breath analysing instrument in micrograms of alcohol per 100 millilitres of blood is to be multiplied by 2.2 in order to arrive at the number of milligrams of alcohol in 100 millilitres of blood.
- Significantly in the context of this case before me, regulation 4 (1) lays down the approved breath testing device as the Lion Alcometer Model DS-190 with dual screen and memory for 500 tests. Similarly, the Drager Alcotest 7110 with 3 automatic printouts is the approved breath analysing instrument for breath analysis.
- The facts are that:-
On the above date, time and place ASP Samisoni Naqica (PW1) Officer in Charge of Sigatoka Police Station was conduction operation around Sigatoka area in Flet 49 with the Operation Team consisting of PC 4360 Apakuki and PC 4702 Asaeli and was patrolling along Muasara Seaside when PW1 saw the Accused's vehicle parking at the far end of the tar sealed road at Muasara. Whilst approaching the Accused's vehicle the passengers boarded the vehicle and Accused drove away. PW1 then confronted the Accused and managed to stop him by parking in front of Accused's vehicle. PW1 approached Accused and ordered him to come outside the vehicle. The Accused was heavily smelt of liquor and was arrested at the scene and escorted to Sigatoka Police Station.
At Sigatoka Police Station PC 1639 Praneel Gounder conducted breath test of the Accused and the result was 74 micrograms of alcohol per 100 milliliters of breath which was multiplied by 2.2 in accordance with Regulation 3 (3) of Breath Test and Analysis Regulation 2000 and the result was 162.8 milligrams of alcohol which was in excess of prescribed limit.
Upon receipt of the report PC 3780 Tevor (C-1) was appointed the investigating officer whereby Accused was caution, interviewed, charged and bail to appear Sigatoka M.C. on 10/02/15"
- The maximum penalty for this offence is a fine of $2,000/2 years and mandatory disqualification from 3 months to 2 years, for a first offending. . This alone is indicative of how seriously the legislature had intended this offence to be treated by the Courts. I give effect to the intention of the legislature, and adopt Winter J's dicta in Lal v The State [2004] FJHC 106; HAA0038.2004 (19th May, 2004), wherein His Lordship stated:
-
Mitigating Factors
- Early guilty plea,
- First time offender,
- 23 years old, single,
- Employed as a Resort Auditor for Hideway Resort;
- Earn $220.00 per fortnight,
- Ask for D/L not to be cancelled.
- No one was injured, and no one else's property was damaged
- Aggravating Factors
- Your sentence should therefore reflect the concern of the lawmakers and of the public in respect of drivers who drink alcohol and drive.
- On the facts of this case, I hereby fine you in the sum of $1,000.00. You are also disqualified from holding or obtaining a driver's licence on any groups for 12 months.
- I have considered your income, and pursuant to s. 34 of the Sentencing and Penalties Decree of 2009, I order that you pay the fine of $1,000, over 3 months, in 3 instalments: two instalments of $350 each and one instalment of $300.00.
- The first payment of $350.00 is payable in a month's time from to date, which means you will need to pay it by 16/03/15. The second payment of $350.00 should be paid by 13/04/15, and with the balance of $300.00 payable by 18/05/15.
- Default in the payment of each penalty unit ($100) or a part thereof, will incur 10 days imprisonment; i.e. the court totals the imprisonment default term at any default monthly payment to twenty five (25) days imprisonment each.
...................................
Mr Tomasi Bainivalu
Resident Magistrate
Sigatoka.
