Kumar v The State [1995] FJHC 2; Haa0003j.1995b (7 February 1995)

Fiji Islands - Arun Kumar v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3 OF 1995

Between:

ARUN KUMAR

s/o Ram Sumer

Appellant

-and-

STATE

Respondent

For Appellant :Mr. A. Sen

For Respondent :Miss Laisa Laveti

JUDGMENT

On 11 November 1994 at the Magistrate's Court, Labasa the appellant was after trial convicted for the offence of indecently annoying female contrary to section 154(4) of the Penal Code. He was sentenced to imprisonment for 9 months and also ordered to pay $30.00 Court costs.

He has appealed against the sentence of imprisonment stating that it is "unreasonable".

The charge against him was that on 8 April 1993 at Navai, Seaqaqa with intent to insult the modesty of a woman BIR MATI d/o Jay Mal "indecently annoyed her by forcefully kissing her on the mouth".

Mr. Sen submitted that the appellant who is 30 years of age is a first offender, married with four children who all attend school. He is in regular employment and is a farm manager. He says that this is a relatively minor offence and binding over would have been sufficient. The sentence is harsh and excessive. The appellant has already served three months and is at present serving extramurally and is due for release on 10 March 1995, that is, in a month's time.

The learned State counsel agrees that the sentence is excessive bearing in mind that it is a misdemeanour and the maximum sentence is one year's imprisonment. The appellant is in regular employment and is a first offender. The court's powers are set out under s319 of the Criminal Procedure Code. She feels that the sentence ought to be reduced.

I have read the record of proceedings in this case and consider this to be a single out of character offence committed by the appellant for which the maximum sentence is 12 months' imprisonment. The circumstances were not serious. The appellant is serving extramurally and will be discharged within a month which goes to show that it is safe to let him loose now.

With learned State counsel not opposing the appeal, in all the circumstances of this case I also consider that the sentence is on the high side for this type offence and therefore a reduction in sentence is justified. Whilst doing so I appreciate that each case depends on its own particular facts and circumstances for no two cases are alike in all respects.

I therefore set aside the sentence of 9 months' imprisonment and substitute it with a sentence of 3 months' imprisonment effective from the date of his original sentence namely 11 November 1994 so that the appellant will be due for his release on 11 February 1995. I do not disturb the order as to costs.

D. PATHIK

PUISNE JUDGE

At Labasa

7th February, 1995

Haa0003j.95b