Kumar v The State [2004] FJHC 444; HAA0097.2004L (3 August 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLANT JURISDICTION

CRIMINAL APPEAL NO. HAA0097 OF 2004L

AVINESH KUMAR

V

THE STATE

Counsel: Mr. J. Sharma for the appellant
Mr. M. Korovou for the State

Date of Hearing and Judgment: 3 August 2004

EXTEMPORE JUDGMENT

The appellant appeals to this court against the conviction and the sentence imposed by the Nadi Magistrate’s Court on 30^th July 2004 for the following offence: -

Statement of Offence

Criminal Intimidation: Contrary to section 330 of the Penal Code.

Particulars of Offence

AVINESH KUMAR s/o Ram Sami on the 14^th day of June 2004 at Nadi in the Western Division without lawful excuse threatened Tulsi Naidu s/o Mira Naidu with intent to cause alarm to the said TULSI Naidu s/o Mira Naidu that he will chop him with a cane knife.

When the matter came before this court counsel for the appellant indicated that the appellant wishes to proceed with the appeal on sentence only.

The record of the Magistrate’s Court indicates that the appellant appeared unrepresented and a plea of guilty was entered.

The facts of the matter appear to be that the appellant and the victim are neighbours, that the father of the appellant reached some agreement with the victim to obtain cane seed from the victim’s farm. The appellant apparently went to the victim’s farm for the purposes of obtaining that cane seed.

The victim objected to the location from which the seed was being obtained and this apparently led to the unwarranted commission of this offence.

There appears to be no justification whatsoever for the appellant brandishing a cane knife at the victim and threatening to chop him.

The Learned Magistrate imposed a sentence of imprisonment of 2 months for what I can only described as somewhat stupid behaviour.

I am told that the appellant and the victim have reconciled. The appellant and the victim continue to be neighbours, that the victim in fact suffered no injury. The appellant is married with a child aged 3 and he is 27 years of age. He works his parent’s farm and works as a cane cutter. His father is 70 years of age and he lives with and assists his father.

Conduct such as has been displayed by the appellant on this occasion is unnecessary prevalent and any penalty must of necessity attempt to impose a deterrent to others.

I have been referred to various authorities of Mr. Justice Govind and Mr. Justice Winter, which indicate that it is appropriate for and alternate sentence to be imposed other than that which the Learned Magistrate saw fit to impose.

The appellant has not come before the court previously and I hope and trust will not come before the court again.

Whilst the period of imprisonment served between Friday and today, is very brief, I hope it has been sufficient to teach a very salutary lesson. In the circumstances, I am prepared to allow the appeal. I quash the sentence imposed by the Learned Magistrate and in lieu thereof impose a sentence of 2 months imprisonment but suspend the operation of that sentence for a period of 18 months.

JOHN CONNORS
JUDGE

AT LAUTOKA
3 AUGUST 2004

Endorsement: Appellant was advised of the provisions of section 29 and 30 of the Penal Code.