Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Prasad [2013] FJMC 54; Criminal Case 1776.2012 (31 January 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1776/12

STATE

V

KUNAL ADWIN PRASAD
1st accused

BIMLESH DAYAL
2nd accused

VILIAME VUNISINA
3rd accused

DESHWAR KISHORE DUTT
4th accused

Prosecution: PC Pauliasi (Police Prosecution)
Accused: All Present – In Person.

Sentence

Introduction

KUNAL ADWIN PRASAD, BIMLESH DAYAL, and DESHWAR KISHORE DUTT, you are now being sentenced for Damaging Property, Contrary to Section 369 (1) of Crimes Decree 2009. The Particulars of Offence is that you:

"KUNAL ADWIN PRASAD, BIMLESH DAYAL, VILIAME VUNISINA and DESHWAR KISHORE DUTT on the 2nd day of December, 2012, at Suva in the Central Division, willfully and unlawfully damaged the Mesh Wire valued at $40.80, Razor Wire valued at $196.80 all to the total value of $237.60, the property of Suva Corrections Centre."

You three have pleaded guilty on your own free will. You admitted the statement of facts for this count.

BIMLESH DAYAL, you are also being sentenced for Attempting to Escape from Lawful Custody, Contrary to Section 44 & 196 of Crimes Decree 2009. The Particulars of Offence is that you:

"BIMLESH DAYAL and VILIAME VUNISINA on the 2nd day of December, 2012, at Suva in the Central Division, being remanded prisoners of Suva Corrections Centre, attempted to escape from the lawful custody of Eliki Raloka."

Bimlesh Dayal, have pleaded guilty on your own free will to this Charge and you admitted the statement of facts which was put to you by the Prosecution.

KUNAL ADWIN PRASAD and DESHWAR KISHORE DUTT, you are now being sentenced for Escaping From Lawful Custody, Contrary to Section 196 of Crimes Decree 2009. The Particulars of Offence is that you:

"KUNAL ADWIN PRASAD and DESHWAR KISHORE DUTT on the 2nd day of December, 2012, at Suva in the Central Division, being remanded prisoners of Suva Corrections Centre, attempted to escape from the lawful custody of Eliki Raloka."

Kunal Adwin Prasad and Deshwar Kishore Dutt, you both have pleaded guilty on your own free will to this Charge and you both have admitted the statement of facts which was put to you both by the Prosecution.

The Maximum Penalty

The Maximum Penalty for Damaging Property, Contrary to Section 369 (1) of Crimes Decree 2009 is 2 years imprisonment.

The Maximum Penalty for Attempting to Escape from Lawful Custody, Contrary to Section 44 & 196 of Crimes Decree 2009 is 2 years imprisonment.

The Maximum Penalty for Escaping from Lawful Custody, Contrary to Section 196 of Crimes Decree 2009 is 2 years imprisonment.

The Tariff

Damaging Property – The Tariff for this offence is between 3 to 9 months.

Escaping from Lawful custody and Attempting to Escape from Lawful Custody - The tariff for the offence of escape is between 6 and 12 months imprisonment (Viliame Tuibua v. The State Criminal Appeal No. AAU0116 of 2007S). However, a sentence outside the range may be imposed if special circumstances are present. In Tuibua, the Court of Appeal said:

"Any sentence outside the usual tariff should however be regarded as exceptional and should be justified by the objective facts of the offence (for example, the degree of violence involved; the degree of damage to property; the degree of planning; the length of time at liberty before recapture; the reason for the escape; early guilty plea; voluntary surrender; other offending during the escape and whilst at large; age of the offender) and/or the subjective circumstances of the offender. As a general rule, when there is a joint escape by two or more prisoners, then the appropriate range of sentence will increase in severity to between 9 to 12 months imprisonment."

Accused One- KUNAL ADWIN PRASAD
Count One – Damaging Property

Having considered the relevant provisions of the Sentencing and Penalties Decree. This Court takes 6 months as an appropriate starting point for the offence that you have committed. This Court has also noted and carefully considered the facts and the circumstances of your offending.

Guilty Plea

For your guilty plea on the 1st available opportunity this Court will give you 2 months discount (1/3rd). You are now to serve 4 months imprisonment.

Mitigation and Time Spent in Custody

Your mitigation has been considered by this Court. For your total mitigation you are given 1 month discount. You have spent 2 months in custody and this Court will deduct the time you have spent in custody. You are not eligible for any discount for your character as you have previously offended. Your sentence for Damaging Property is 1 month imprisonment.

Count Three – Escaping from Lawful Custody

Having considered the relevant provisions of the Sentencing and Penalties Decree. This Court takes 9 months as an appropriate starting point for the offence that you have committed. This Court has also noted and carefully considered the facts and the circumstances of your offending.

Guilty Plea

For your guilty plea on the 1st available opportunity this Court will give you 3 months discount (1/3rd). You are now to serve 6 months imprisonment.

Mitigation and Time Spent in Custody

Your mitigation has been considered by this Court. For your total mitigation you are given 1 month discount. You have spent 2 months in custody and this Court will deduct the time you have spent in custody. Your sentence is 3 months imprisonment for Escaping from Lawful Custody. This term will be consecutive to any sentence you are serving.

Accused Two- BIMLESH DAYAL
Count One – Damaging Property

Having considered the relevant provisions of the Sentencing and Penalties Decree. This Court takes 6 months as an appropriate starting point for the offence that you have committed. This Court has also noted and carefully considered the facts and the circumstances of your offending.

Guilty Plea

For your guilty plea on the 1st available opportunity this Court will give you 2 months discount (1/3rd). You are now to serve 4 months imprisonment.

Mitigation and Time Spent in Custody

Your mitigation has been considered by this Court. For your total mitigation you are given 1 month discount. You have spent 2 months in custody and this Court will deduct the time you have spent in custody. Your sentence is now 1 month imprisonment for Damaging Property. Your previous good character allows you some further discount and having considered that this Court will suspend the 1 month term for 12 months which means that should you re-offend in the 12 months period you might be charged for breach of your suspended term and prosecuted and upon being found guilty sentenced to a term of 1 month.

Count Two – Attempt to Escape from Lawful Custody

Having considered the relevant provisions of the Sentencing and Penalties Decree. This Court takes 9 months as an appropriate starting point for the offence that you have committed. This Court has also noted and carefully considered the facts and the circumstances of your offending.

Guilty Plea

For your guilty plea on the 1st available opportunity this Court will give you 3 months discount (1/3rd). You are now to serve 6 months imprisonment.

Mitigation and Time Spent in Custody

Your mitigation has been considered by this Court. For your total mitigation you are given 1 month discount. You have spent 2 months in custody and this Court will deduct the time you have spent in custody. Your sentence is 3 months imprisonment for Escaping from Lawful Custody. Having considered your previous good character and the fact that you would have learnt your lessons while being incarcerated for 2 months this court will suspend your 3 months sentence for 18 months, which means that should you re-offend in the 18 months period you might be charged for breach of your suspended term and prosecuted and upon being found guilty sentenced to a term of 3 month.

Accused Four- Deshwar Kishore Dutt
Count One – Damaging Property

Having considered the relevant provisions of the Sentencing and Penalties Decree. This Court takes 6 months as an appropriate starting point for the offence that you have committed. This Court has also noted and carefully considered the facts and the circumstances of your offending.

Guilty Plea

For your guilty plea on the 1st available opportunity this Court will give you 2 months discount (1/3rd). You are now to serve 4 months imprisonment.

Mitigation and Time Spent in Custody

Your mitigation has been considered by this Court. For your total mitigation you are given 1 month discount. You have spent 2 months in custody and this Court will deduct the time you have spent in custody. You are not eligible for any discount for your character as you have previously offended. Your sentence for Damaging Property is 1 month imprisonment.

Count Three – Escaping from Lawful Custody

Having considered the relevant provisions of the Sentencing and Penalties Decree. This Court takes 9 months as an appropriate starting point for the offence that you have committed. This Court has also noted and carefully considered the facts and the circumstances of your offending.

Guilty Plea

For your guilty plea on the 1st available opportunity this Court will give you 3 months discount (1/3rd). You are now to serve 6 months imprisonment.

Mitigation and Time Spent in Custody

Your mitigation has been considered by this Court. For your total mitigation you are given 1 month discount. You have spent 2 months in custody and this Court will deduct the time you have spent in custody. Your sentence is 3 months imprisonment for Escaping from Lawful Custody. This term will be consecutive to any sentence you are serving.

Sentencing Remarks

For all of you three accused persons it is important to note that our community looks down upon people like you. Do not think that you are heroes if you break out Corrections Centres. You genuinely need to reform and change your behaviour and actions or you will continue being on the wrong side of the law. Through criminal activities you will not be leading a happy life but at every moment you will be looking behind your back to ensure that you will not be caught for your bad deeds. As you are sentenced for these offences you can say we had done wrong and paid for our crimes after serving our time we will change ourselves and become productive members of the Fijian community.

Summary of Sentence

Accused One – Kunal Adwin Prasad

Count One – Damaging Property – 1 month imprisonment.

Count Three – Escaping from Lawful Custody – 3 months Imprisonment (Consecutive to sentence being served)

Accused Two – Bimlesh Dayal

Count One – Damaging Property – 1 Month/Suspended for 12months.

Count Two – Attempting to escape from Lawful Custody – 3 months/suspended for 18 months.

Accused Four – Deshwar Kishore Dutt

Count One – Damaging Property – 1 month imprisonment.

Count Three – Escaping from Lawful Custody – 3 months Imprisonment (Consecutive to sentence being served)

Prosecution is to note that if any of these accused persons are remanded in other cases completion of their cases here does not mean they are automatically bailed in the other cases. If the accused persons are remanded in other cases they should be dealt accordingly.

Right of Appeal

Any party aggrieved with this sentences has 28 days (from today) to appeal to the High Court.

Chaitanya Lakshman
Resident Magistrate

31st January 2013