State v Chand [2012] FJHC 921; HAC066.2010S (29 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 066 OF 2010S

STATE

vs

1. HEM CHAND
2. LAVIN YOGESH LAL

Counsels: Mr. L. Fotofili for the State
Mr. H. A. Shah for the Accused No. 1
Ms. S. Vaniqi for Accused No. 3
Hearings: 17th to 31st May, 1st June, and 2nd June, 2011
Summing Up: 6th June 2011
Judgment: 6th June 2011
Sentence: 29th February 2012

SENTENCE

1. In the judgment delivered on 6th June 2011, the court found both accuseds guilty of the following offence:
   

Count 1

Statement of Offence

CONSPIRARY TO COMMIT AN OFFENCE, NAMELY DAMAGING PROPERTY: contrary to sections 49(1) and 369(1) of the Crimes Decree 2009.

Particulars of Offence

HEM CHAND s/o Prem Chand, VEER VIJAY CHAND s/o Prem Chand & LAVIN YOGESH LAL s/o Suruj Lal, on the 13th day of March 2010 at Nasinu in the Central Division conspired together to commit an offence, namely damaging property by setting fire to a motor vehicle with the registration DV 534 the property of MAHESH KUMAR MISHRA.

2. The Court convicted both accuseds as charged.
   
3. The facts were as follows. On 13th March, 2010, the complainant was the Director of Traffic in the Police Department. He was Senior Superintendent of Police Mr. Mahesh Kumar Mishra. It was his duty to co-ordinate a joint Police/Land Transport Authority crackdown on illegal private vehicles being used as taxis. As a result, a lot of illegal private vehicles were seized by the authorities, and a lot more, were forced off the road. Mr. Hem Chand (Accused No. 1), being an owner and operator of some mini vans, was forced to put his vehicles off the road. His income suffered as a result.
   
4. Mr. Mishra and Mr. Chand were neighbours at Omkar Road, Narere. Mr. Chand operated an illegal garage from his compound. It usually caused a lot of noise and disturbances to the Mishras. Mr. Mishra tried to have the garage closed down, but to no avail. Bad blood occurred between the neighbours. Mr. Mishra had a two storey concrete dwelling house on his property. He parks his car, registration no. DV 534, on the ground floor of his house. On top of the ground floor is the second floor, in which he and his family resided.
   
5. On 13th March 2010, Mr. Chand conspired with a friend, Lavin Yogesh Lal (Accused No. 3), to burn Mr. Mishra's car registration no. DV 534, in exchange for $500. On 14th March 2010, after 1am, Mr. Lal sneaked into Mr. Mishra's compound, poured kerosene on his car, registration no. DV 534 and burn the same. The fire from the car caused extensive damage to the car, and smoke damage to the concrete ground floor and its concrete ceiling. The total cause of damage was $7,110.00. Mr. Mishra's residence would have been burn out, had the fire to his car not being put out on time.
   
6. "Conspiracy to commit an offence, namely, damaging property", is a serious offence and carries a maximum penalty of 2 years imprisonment. The tariff in this case should be below the statutory maximum of 2 years imprisonment, and in my view, an acceptable tariff would be a sentence between 6 months to 12 months imprisonment. The actual sentence will depend on the mitigating and aggravating factors.
   
7. The mitigating factors in this case were as follows:
   
   • (i) Hem Chand [Accused No. 1]
     
     • - 34 years old, married with 3 children;
     • - supports his family, mother and younger brother;
     • - ceased working his mechanical workshop from his mother's property;
     • - has paid $5,000 cash compensation to the complainant, and willing to forfeit his $1,000 cash bail to Mr. Mishra (total: $6,000);
     • - 1st offender;
     • - spent time in custody, while awaiting trial.
       
   • (ii) Lavin Yogesh Lal [Acused No. 3]
     
     • - 31 years old, married with 4 young children;
     • - sole bread winner;
     • - has paid $800 cash compensation to complainant, and willing to forfeit his $300 cash bail to Mr. Mishra (total: $1,100);
     • - spent time in custody, while awaiting trial.
       
8. The aggravating factors in this case were as follows:
   
   • (i) This was a joint attack by the two accuseds on a senior police officer, at his home. An attack on any police officer, while on duty or otherwise, or at their home, is a very serious matter, and it will not be tolerated by this court;
     
   • (ii) The attack on Mr. Mishra's car had not only affected him financially, it has also affected his family. This family would have suffered serious injuries, or possible death, if the fire to Mr. Mishra's car was not extinguished in time. The two accuseds have certainly put this family's life to a considerable risk, when they set fire to Mr. Mishra's car, on 14th March 2010.
     
   • (iii) By committing this offence, both accuseds have shown utter disregard, to the Mishra's family's right to live peacefully in their house and their right to safety.
     
9. On count no. 1, I start with a sentence of 10 months imprisonment. I deduct 5 months for the mitigating factors, leaving a balance of 5 months. I add 8 months for the aggravating factors, making a total of 13 months imprisonment.
   
10. I sentence each of the accuseds to 13 months imprisonment each. If they are serving a prison sentence, this sentence is to be consecutive to their present prison sentence.
    
11. Before leaving this case, I have called upon the powers given to the courts, by virtue of section 30 (2) of the Criminal Procedure Decree 2009, which reads as follows:
    

"All courts may make any appropriate order requiring a person charged with an offer to keep the peace if, during the course of a trial or proceeding, the court forms the view that the person charged may cause or participate in a breach of the peace."

12. When hearing this case, I noticed that the cause of Mr. Mishra's and Mr. Chand's problems was the illegal mechanical workshop garage that Mr. Chand operated from her mother's compound. This illegal mechanical workshop must not be rebuilt ever again, without the permission of this Court. I therefore order, pursuant to section 30 (2) of the Criminal Procedure Decree 2009 that, Mr. Hem Chand and/or the owner of Lot 9 Omkar Road, Narere, and/or their agents, friends, servants etc. to cease forthwith the operation of the illegal mechanical garage/workshop from Lot 9 Omkar Road, Narere. Any breach of the above order will constitute a contempt of court, and any complaint can be brought before this Court, at any time whatsoever.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of Director of Public Prosecution, Suva.
Solicitor for Accused No. 1 : H.A.Shah, Barrister & Solicitor, Lautoka
Solicitor for Accused No. 3 : Legal Aid Commission, Suva