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State v Kumar [2014] FJMC 13; Criminal Case 345.2013 (15 January 2014)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 345/13

BETWEEN:

THE STATE

AND:

YASHWANT KUMAR

Prosecution: PC Nitesh
Accused: Ms Tarai (Legal Aid Office)

SENTENCE

1. Yashwant Kumar you pleaded guilty to the offence of Indecently Insulting or Annoying Any Person contrary to section 213(1)(a) of the Crimes Decree No. 44 of 2009.
   
2. You pleaded guilty freely to the charge and admitted the facts tendered by prosecution.
   
3. The Court accepted your plea to be unequivocal and convicted you as charged.
   

Facts

4. On 5th October 2013 at 4pm at Waimari Rakiraki, the complainant (Dharmendra Kumar, 45yrs) was approached by he's gang sardar and informed him that you had taken two of their cane rail carts. The complainant came to your farm and took the rail carts. You then blocked the complainant's driveway whereby an argument erupted. You swore at the complainant saying "maichod" meaning "mother fucker" after he punched you on the face.

Matter was reported to police. You were arrested and charged for the alleged offence.

Mitigation

5. Your counsel mitigated and I consider the following in your favor:
   
   • Your guilty plea.
   • This is your first offence.
   • You've remorseful and requested for forgiveness.
   • You were provoked.
     

Aggravating factors

6. Aside the elements of the offence I don't see any aggravating factors in this case.
   

Tariff

7. The offence of Indecently Annoying any person carries a maximum imprisonment term of 1 year. The tariff in my view would range from between 1 month to 6 months imprisonment depending on the circumstances of the case.
   

Sentence

8. I therefore take a starting point of 6 months. There being no aggravating factors, your sentence remains at 6 months.
   
9. For the mitigating factors and this being your first offence I reduce the sentence by 2 months. For your guilty plea I further deduct your sentence by 2 months.
   
10. Your sentence is now 2 months imprisonment.
    
11. I now consider whether to suspend your sentence. It would be appropriate to suspend your sentence due to your background and for you rehabilitation. You sentence will hence be suspended for 1 year.
    
12. If you commit any offence within the operational period of 1 year, you'll be charged for breaching this suspension order and if convicted you'll be made to serve the 2 months with any other penalty imposed in that other offence.
    
13. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

15th January 2014