Karan v Reginam [1977] FJSC 180; Criminal Appeal 130 of 1977 (22 December 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Criminal Appeal No.130 of 1977

BETWEEN:

PRABHA KARAN s/o Ram Chandar
Appellant

AND

REGINAM
Respondent

Dr. M.S. Sahu Khan, Counsel for the Appellant
Mr. D. Williams, Chief Legal Officer for the Respondent

JUDGMENT

The appellant was convicted by the learned magistrate on two counts arising out of the same incident wherein the appellant stoned a car in which the complainant was a passenger.

The first count was for throwing stones at a private car on 29th October 1976 contrary to s.97A of the Penal Code and the second was for assault occasioning actual bodily harm contrary to s.277 P.C.

On the first count he received 8 month's imprisonment and a recommended 6 strokes and on the second 6 months' imprisonment concurrent.

It is against those sentences that this appeal was lodged.

Dr. Sahu Khan submitted that the offences were not pre-mediated, that it was a sudden crime and one which is not prevalent. He argued that since the appellant was a first offender then a custodial sentence if called for may well have been properly suspended.

The facts show that after 1.00 A.M the complainant was in a car travelling along the King's Road from Varuvu to Tavua. There were 2 cars stationary ahead and two males signalled them to stop which the complainant's driver obeyed. Then the appellant appeared and kicked the bumper of the car in which the complainant was riding and asked if the driver was wanting to race. The complainant's car moved off without any one in it venturing to reply.

The complainant's grandmother who had been a passenger in the car was dropped off at her home and the car returned by the same road. At the spot where it had been stopped the complainant felt the impact of three objects striking the car but he saw no one. They continued home where the complainant, the driver and other occupants decided to drive back in the direction of Tavua. On this occasion they were over- taken by two cars one of which halted a head of them and one stopped behind forcing them to stop.

Again the appellant appeared and he approached from the car in front picked up stones and threw at the complainant's car. The driver warded off one stone which would have hit his windscreen. The accused threw another stone which hit the rear windscreen, smashed it and hit the complainant who was detained in hospital for 24 hours with a wound on his left temple. He was rendered unconscious by the blow.

The appellant did not give evidence and called no witnesses.

On those facts I cannot accept the appellant's submission that this was not pre-mediated. The complainant's car was stopped twice in the same area and a period of more than an hour elapsed between each incident. The appellant was to the fore of the hooligans on each occasion. On the second occasion the road was blocked- at least partially.

For the same reasons I do not subscribe to the view that this was a sudden offence.

Throwing stones at motor vehicles is a prevalent offence and I cannot accede to the submission that it is not prevalent. Magistrates have referred frequently to the prevalence of such offence, and appeals in such cases have often found their way into the Supreme Court where the strict attitude taken by magistrates has been upheld.

In Cr.App. 80/76 Stuart J. upheld a sentence of 12 months imprisonment but set aside an additional 6 strokes imposed for throwing stones at a public service vehicle.

The offence which the legislation created comparatively recently carries a maximum of 3 years imprisonment with or without corporal punishment and thus indicates the serious with which the public views such offence.

I am of the opinion that the sentence imposed were not excessive for this kind of offence committed in these circumstances.

The appeal is dismissed and I confirm the sentence of corporal punishment.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA,
22nd December, 1977