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State v Kumar [2010] FJMC 12; Criminal Case 174.2010 (19 February 2010)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: 174 of 2010

STATE

V

KRISHNIL DEEPAK KUMAR s/o Saten Kumar

For Prosecution: Sgt. Vinesh
Accused: Present in Person

SENTENCE

1. You, KRISHNIL DEEPAL KUMAR, are here, to be sentenced on admission of guilt on your own accord for the offences of Unlawful use of motor vehicle contrary to Sec. 292 of the Penal Code and for Larceny Contrary to Section 259 (1) and 262 (2) of the Penal Code.

2. After explaining the charges, you seek assistance of a counsel of your own choice. However, you again seek to plead guilty for both counts. Since you are not a stranger to the Fiji legal system, I am satisfied that you have not been mislead when you plead guilty for both counts.

3. According to the facts (which you have admitted), on 14th March 2009, without any permission of the owner, you had driven away the car no: CI 551 owned by the complainant, which was parked at Ellery Street with some groceries and goods inside. Later you have abandoned the car at Monasavu Rd. and stole the four tyres with Meg wheels, car battery, car jack and other groceries and goods which were inside all to the total value of $ 1137. Four wheels with tyres had been later recovered from PW-3. During the interview on 02nd February 2010, you have shown the place you abandoned the car to the interviewing officer.

4. Maximum sentence for the offence under Sec. 262 (2) is ten years for an offender with a previous conviction. Tariff for Larceny is 12 months to 18 months imprisonment. (Poniasi Saulekaleka v. The State HAA0050 of 2001 S / Talau v. The State 2005 FJHC 212; HAA0078J.2005, on 05th May 2005 per Shameem J and Emosi Betu v. The State HAA58 of 2008 0n 11th November 2008 per Anthony J Sherry J). Maximum sentence for Unlawful use of motor vehicle is 06 months imprisonment.

5. You are a repeat offender. According to the previous convictions list, you have 12 previous convictions ranging from 2003 to 2009. Out of all, 03 previous convictions are for Larceny and 03 for Unlawful use of motor vehicle. You have admitted the list. Few months before you commit the present offence you have been convicted for Unlawful use of motor vehicle offence and had been imprisoned for five months by the Suva Magistrate’s Court. This clearly shows that you have no regard to the law of this country and you are not a person to learn a lesson from your past mistakes.

6. In Viliame Cavuilagi v. State, Crim. App. HAA 0031 of 2004 Winter J has made following comments regarding a repeat offender.

"Repetitive, recidivist of offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society’s needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second, society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law-abiding citizens. Third, offenders deserve punishment that fits the circumstances of the crime".

7. You are not a first offender, so you are not entitled for any discount for your previous good behaviour. I set my starting point of sentencing for 18 months for the first count and 06 months for the second count. Since you have pleaded guilty in the first available instance, you are entitled for 1/3 reduction. Your sentence is now stands for 12 months imprisonment and 04 months imprisonment for respective charges.

8. You have a history of disregarding the lawful rights of other people. In the present case, apart from taking complainant’s vehicle without his permission, you have stolen not only the goods lying inside the vehicle but all four tyres including four meg wheels, car battery and the car jack.

9. Considering the above facts as aggravating factors, I add another six months to the first count and 03 moths to the count 2.

10. In mitigation you said that you are 22 years old and married with 02 months old baby. By profession you are a mechanic earning $ 120 per week. You told court that this was a very old case and you wanted police to file charges whilst you were in prison. You further said that you have learnt a lesson and want to spend your time with the family. You asked for a suspended sentence.

11. Even though it is very difficult for me to believe that you are sorry for what you have done, to reflect those mitigating facts, I reduce 02 months from each count.

12. Your sentence for count one now stands for 16 months imprisonment and for count two it is 05 months imprisonment. I am mindful to the fact that sentences, which are below 2 years, can be suspended. However, it is pertinent to see whether your criminal record warrant such leniency from the court. According to Emosi Betu v. The State HAA58 of 2008 0n 11th November 2008 per Anthony J Sherry J and Talau v. The State 2005 FJHC 212; HAA0078J.2005, on 05th May 2005 per Shameem J, Talau v. The State 2005 FJHC 212; HAA0078J.2005, on 05th May 2005 per Shameem J, for accused with a record of offending in similar manner, suspended sentences are unavailable. Above guidelines set out by the courts and your persistence disobedience to the law prevents me from imposing a suspended sentence on you.

13. You are hereby sentenced to 12 months imprisonment for count one and 05 months imprisonment for count two. I order both sentences to run concurrent to each other. The total imprisonment period you have to serve is 16 months. Starting date of the sentence is set as 05th February 2010, as you are in prison from that particular date.

14. 28 days to Appeal.

On this Friday the 19th day of February 2010

Kaweendra Nanayakkara
Resident Magistrate