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State v Chaudhary [2016] FJMC 108; Criminal Case 2115.2015 (2 August 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 2115/15

STATE

-v-

SHAILESH CHAND CHAUDHARY

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

ABSCONDING BAIL: Contrary to Section 2 of the Bail (Amendment) Decree No. 28 of 2012 an amendment to Section 26(1) of the Bail Act 2002.

Particulars of Offence

SHAILESH CHAND CHAUDHARY on the 13th day of April 2015 at Suva in the Central Division being the accused person released on bail by the Suva Magistrate Court failed to attend the said Court on the 21st day of March 2015, absconded bail and failed to surrender custody without reasonable cause.

2] Summary of facts that you have admitted revealed that on 13/4/15 at the Suva Magistrate Court, Suva you appeared to answer to charges laid against you in Case No. 454/13. You were bailed by the Suva Magistrates Court to appear again at 9.30am on 21/5/15.On 21/5/15 at around 9.30am at the Suva Magistrates Court you failed to surrender and Bench Warrant was issued against him for arrest.

3] Maximum sentence for this offence is One year imprisonment and $ 2000 fine. The tariff was set In Raj v State [2008] FJHC 74; HAA032.2008 (18 April 2008) where it was said that;

“I would set the tariff for sentence to range from a non-custodial to 6 months imprisonment. It is possible depending on the facts that one may go higher, but it will be exceptional.”

4] I shall now proceed to consider your sentence as to be consistent with the tariff, mitigating factors and aggravating factors.

5] I pick 3 months imprisonment as my starting point.

6] As you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third in view of the decision in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 which followed Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005. Accordingly the sentence becomes 2 months imprisonment.

7] Prosecution has reported 8 previous convictions.However there is no correlation between convictedoffences and the offence charged in this case. The last conviction is reported in 2008.

It was observed in R v. Smith (1983) 5 Cr. App.R(s) 61 that;

"There are situations where, notwithstanding a previous conviction, it is appropriate to treat the offender as being rehabilitated and of good character. This will be especially so if there has been a last considerable lapse of time since the conviction []." Followed in Koroivuki v State [2013] FJCA 15; AAU0018.2010 (5 March 2013)

In Koroivuki v State [2013] FJCA 15; AAU0018.2010 (5 March 2013) it was held that;

In my judgment the lack of correlation between the two offences and the considerable lapse of time were relevant in assessing the good character of the appellant. The lack of consideration of these factors led the trial judge to erroneously disregard the previous good character of the appellant. Some reduction should have been made in sentence to reflect the previous good character of the appellant. There was no correlation between the two offences. One was a dishonest offence while the other was a drug offence.

I draw my attention to Sec 15(3) of the Sentencing and Penalties Decree which states;

“As a general principle of sentencing , a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part.”

In these circumstance I suspend your two months imprisonment for 2 years.

If you commit any offence punishable by prison sentence during the next 2 years you can be charged under section 28 of the Sentencing and Penalties Decree.

8] In addition $ 100 fine and 10 days imprisonment in default is imposed.

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

2/8/2016