Singh v State [2011] FJHC 487; HAA15.2011 (31 August 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA15 of 2011

BETWEEN:

DEEPAK SINGH
Appellant

AND:

THE STATE
Respondent

Hearing: 29 July 2011
Judgment: 31 August 2011

Counsel: Mr. A. Sen for Appellant
Mr. T. Qalinauci for State

JUDGMENT

[1] The appellant was convicted on his own guilty pleas to one count each of criminal intimidation and escaping from lawful custody. He was sentenced to 8 months imprisonment for criminal intimidation and 4 months imprisonment for escaping from lawful custody, to be served consecutively. The total sentence was 12 months imprisonment.

[2] He appeals against sentence. On the day of the hearing, Mr. Sen appeared pro bono to argue the appeal. The only issue taken on appeal by Mr. Sen was that the learned Magistrate failed to consider a non-custodial sentence.

[3] The facts were that on 10 May 2009 at 10.10pm the appellant intimidated the complainant by saying he would burn down her house and kill her family. The appellant was drunk. He also swore at her. The threat was made in the presence of the complainant's children. The complainant felt intimidated because the appellant had made similar threats on the previous nights.

[4] The appellant was arrested and kept in the police custody. On 11 May 2009, he escaped from the police custody and was re-arrested on the same day. The appellant was at large for only few hours.

[5] On 13 May 2009 the appellant was arraigned at the Savusavu Magistrate's Court. He pleaded not guilty to the charges. After numerous adjournments, the case was set for hearing on 16 March 2011. On the day of the hearing, the appellant pleaded guilty to the charges.

[6] The appellant told the learned Magistrate that he was 27 years old, single and a technician by profession. He said he escaped from the lawful custody because he was assaulted by the police. He had four previous convictions. One conviction in 2003 was for criminal intimidation. His last conviction was in 2008 for damaging property for which the appellant was sentenced to 10 months imprisonment.

[7] It appears that the appellant committed the offences in this case within a year from being released from prison.

[8] The threat that was used to intimidate the complainant was serious. The maximum sentence that could have been imposed for such threat was 10 years imprisonment. The maximum sentence for escaping from the lawful custody was 2 years imprisonment. For both offences, the appellant was sentenced to 12 months imprisonment.

[9] Suspended sentences are considered when there are special circumstances present such as when the offender is a young and a first time offender and the offence is not serious. When these factors are present, a non-custodial sentence is imposed to give the offender an opportunity to rehabilitate.

[10] The appellant's guilty pleas were made at the eve of the trial. For almost two years, he maintained not guilty pleas. When he realized, he can no longer avoid a trial, he pleaded guilty. In these circumstances, the guilty pleas could hardly be considered as evidence of contrition. The appellant was not a young and a first time offender. He clearly did not learn from his past sentences.

[11] In my judgment, the learned Magistrate was justified to impose a custodial sentence on the appellant to deter him from re-offending in future.

[12] No error of law or fact has been shown in the sentence.

[13] The appeal against sentence is dismissed.

Daniel Goundar
JUDGE

At Labasa
31 August 2011

Solicitors:
Office of Messrs. Maqbool & Co. for Appellant
Office of the Director of Public Prosecutions for State