State v Kumar [2012] FJMC 300; Criminal Case 1458.2012 (16 November 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No 1458/12

STATE

V

SANDEEP DEEPAK KUMAR

Prosecution: WPC Elina, Police Prosecutor.
Accused : In person.

SENTENCE

1. You, Sandeep Deepak Kumar are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 29.10.2012, for committing the offence of 'Damaging property' contrary to Section 369(1) of the Crimes Decree No 44 of 2009.
   
2. You waived your right to legal representation.
   
3. This is a reconcilable offence. However, you informed Court that your uncle who is the complainant of this case is not willing to talk to you after the incident.
   
4. Facts agreed by you state that this case is based on circumstantial evidence. The complainant Mr Mukesh Prasad has ensured that his car was parked in his compound before he went to bed on 23.10.2012. His neighbour has seen you standing beside the car that day. And later she had heard glass breaking noise from the place you were standing. When she inquired, she has seen you again at the same place.
   
5. On the following day the complainant has found that the windscreen and the door glass of the car had been smashed by someone. The value of the damaged items were $ 2,364.29
   
6. You were arrested on that circumstantial evidence and interviewed under caution. You have made a formal admission to the alleged offence in your caution interview.
   
7. The Court convicts you for the offence that you were charged with.
   
8. Crimes Decree of 2009 states that the offence of 'Damaging Property' carries a maximum sentence of 02 years imprisonment.
   
9. According to the judgment of Hon. Justice Goundar, there is no settled tariff range for the offence of damaging property. His Lordship commented as follows in the case of Tikomainiusiladi v State [(2008) FJHC 18; HAA 134.2007; 15 February 2008]:
   

There is no set tariff for the offence of 'damaging property'. Counsel for the State has helpfully referred to two cases for guideline.-

In Navitalai Seru v The State, Criminal Appeal No. HAA0084 & 85 of 2002S, a sentence of 2 years imprisonment for the criminal damage of a door valued at $250.00 was reduced to 6 months imprisonment on appeal to this Court.

In State v Naqa, Criminal Appeal No.HAA0023 of 2003S, Shameem J upheld a term of 12 months imprisonment for the criminal damage of Monasavu Dam to a value of $10,000.00.

10. Accordingly, in this case I select 12 months imprisonment as the starting point.
    
11. There are no aggravating features in the offence.
    
12. Your early plea takes off 4 months of the sentence.
    
13. In mitigation you stated that you are 26 years old; casual worker at an island resort; sought leniency; promised not to re offend. There will be a further reduction of one month for the said facts.
    
14. Now your final sentence stands at 7 months.
    
15. I am mindful of the fact that under Section 26(2) (b) of the Sentencing and Penalties Decree 2009, a sentence below 2 years could be suspended, and considering the promise you have made to this Court, I am inclined to suspend your sentence.
    
16. Your term of imprisonment of 07 months will therefore be suspended for 24 months.
    
17. If you commit any offence and if found guilty by a Court, whilst serving the suspended sentence period of 24 months, you will be imprisoned for a term of 07 months. Thus Section 26 (3) (a) (b) of the Sentencing and Penalties Decree 2009, have been complied with in delivering this sentence.
    
18. The total loss [$ 2,364.29] occurred to the complainant Mr Mukesh Prasad should be paid by you as compensation within 3 months of this order. This will not limit Mr. Mukesh Prasad's rights to file a civil litigation for damages.
    
19. Twenty eight (28) days to appeal.
    

Pronounced in open Court

Yohan Liyanage
Resident Magistrate

16th November 2012