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State v Chandra [2013] FJMC 33; Criminal Case 853.2009 (21 January 2013)

IN THE MAGISTRATE'S COURT OF FIJI
WESTER DIVISION AT NADI

CRIMINAL CASE NO.853/2009

STATE

VS

HIMANSHU CHANDRA

Sgt. Naidu for prosecution
Ms S Jiuta (LAC) for Accused

Sentence: 21.01.2013

SENTENCE

[1] You, HIMANSHU CHANDR, were charged with one count of ABDUCTION OF A GIRL UNDER THE AGE OF 18 YEARS WITH INTENT TO HAVE CARNAL KNOWLEDGE contrary to section 211-(1) of the Crimes Decree No.44 of 2009.

[2] You pleaded guilty to the charge when the charge was read over and explained to you and after you confirmed that you understood the charge. That was your free will.

[3] A summary of facts was submitted by the prosecution, which was put to you and you admitted the facts stated therein. The prosecution handed up a copy of it to court.

[4] I have reviewed the facts against the particulars of the offence charged in this case, and I am satisfied that it supports the elements of the charge in the information laid against you by the prosecution.

[5] Therefore I convict you as charged.

[6] According to section 211 of the Crimes Decree a person commits a summary offence if he or she, with intent that any unmarried person under the age of 18 years shall be unlawfully and carnally known by any person (whether such carnal knowledge is intended to be with any particular person or generally), takes or causes to be taken the person out of the possession and against the will of his or her father or mother, guardian or any other person having the lawful care or charge of the person under 18 years.

[7] Takes-the taking need not be by force, either actual or constructive and it is immaterial whether the girl consents or not: Roshan Ali v. State [2003] HAA 8/02L 14 March 2003.

[8] Summary of facts reveals that: On the 10th October 2009 you abducted the victim aged 15 years and 11 months. On the evening of that day you met the victim at a religious gathering and asked if she could come and spent a night with you. She agreed and went home and packed her clothes and waited for you. You then picked her and went to your home and spent a night. The victim and you had a girlfriend-boyfriend relationship.

[9] It appears from the facts that the victim was a wiling partner and this happened in a boyfriend-girlfriend situation.

[10] In mitigation your counsel submitted that: you are 22 years of age, in a de-facto relationship and has one child. You are a mechanic at Satish Motors in Suva.

[11] The offence you had committed carries a maximum penalty of 5 years' imprisonment pursuant to section 211 (1) of the Crimes Decree.

[12] You entered a plea of guilty to the charge at the first possible opportunity. In doing so, you have saved the court's time and expenses from a full hearing.

[13] You have shown remorse for your action.

[14] This is not a classic abduction case where force was normally used to a girl from her home.

[15] The offence of abduction of person under 18 years of age with intent to have carnal knowledge, contrary to section 211-(1) of the Crimes Decree of 2009 carries a maximum sentence of 5 years imprisonment.

[16] Considering all into my account, in this case I fix a sharp sentence of 12 months' imprisonment.

[17] I am mindful of the fact that a sentence below 02 years could be suspended in terms of section 26-(2) (b) of the Sentencing and Penalties Decree 2009.

[18] In the case of Singh v The State [2000] FJHC 264; 2 FLR 127 Justice Nazhat Shameem stated that:

"However as a general rule, leniency is shown to first offenders, young offenders, and who plead guilty and express remorse."

[19] In the case of Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Justice Nazhat Shameem stated:

"Non custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

[20] You are 22 years of age (at that time you were 19 years of age). Your child and your de-facto partner are looking for your support. Your counsel told me that you were in love with the victim for four years. You have no record of any previous convictions. You are remorseful and seek leniency. In the circumstances, I suspend the sentence for a period of four (4) years from today.

[21] You must not re-offend during the operational period of the suspended sentence.

[22] If you re-offend during the operational period of the suspended sentence of imprisonment, you are liable to be prosecuted under section 28-(1) of the Sentencing and Penalties Decree 2009.

[23] Twenty eight (28) days to appeal.

ORDER

[24] I make the following order:

1. HIMANSHU CHANDRA, you are hereby sentenced to 12 months imprisonment suspended for four (04) years from today
   
2. In addition you must pay a fine of $200.00 in default of payment 20 days imprisonment.
   
3. You have 2 months to pay.
   

.................................................
M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 21st day of January 2013.