Jugement Contre Rakesh Gooljaury

Police v Gooljaury

2016 INT 183

IN THE INTERMEDIATE CORT O! MARITI" Cau#e No$ 362%2016 PO&ICE '("

DOOME"H)AR"ING GOO&*AR+

"e,-e,ce

Accused stands convicted with the offence of effecting public mischief in breach of section 298 of the Criminal Code Act. Act. Par- I$ऀ I$ऀ Mi-i.a-i,. !ac-or#

I wish to highlight a number of mitigating factors in favour of the accused party which are as follows:

(a)

Per#o,al circu/#-a,ce# o Accu#e

CI ughoonundun e!plained e!plained that the accused came by himself to give a statement in 2"#$ stating that he will reveal the whole truth in relation to an incident which happened in 2"##. %he accuse accused d depos deposed ed under under solem solemn n affir affirmat mation ion.. &e e!plai e!plained ned that that in his first first statement in 2"##' he said that he was in the bungalow of the former (rime )inister *hereinafter referred to as +(),- when robbers attaced him and he had to give s 2"'""". In his four subse/uent statements' he related that his first statement was not correct. &is version was that when he gave his first statement he was a close friend to the () for twelve years. &e had already left the bungalow bungalow of the () after a party when he was called anew. &e found that the () was in0ured at his chest and )rs 1ornac had been there also. ive minutes later 3C( 4ohoo came and ten minutes

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later 3C( 1ooroo0 1ooroo0bally bally arrived. arrived. %he () related related that a robber had attaced attaced both of them in their bedroom. )r 4ohoo and )r 1ooroo0bally advised him not to report the matter to the police. %he () insisted to have the matter reported and told him to do so in the presence of the two 3C(s5 who also pressurised him. &e lived with a guilty conscience for four years and he gave his second statement voluntarily. &e spoe the truth in his second statement and reported the matter when the () lost power. &e affirmed that he had cooperated with the police and would continue to do so. &e adde added d that that he is marr marrie ied d with ith two two chil childr dren en.. &is &is old old moth mother er is unde underr his his responsibility. &e highlighted that he is a businessman and employed $"" persons. &e tendered his apologies to the Court and promised not to commit such offences anew. %he defence also called )r (raveen Aggarwal who deposed to the effect that he had nown accused for 6 years and is employed by him. &e depicted accused as a tough boss boss but but one one who who tae taes s prid pride e in his his team team.. &e e!pa e!patia tiate ted d that that accu accuse sed d is the the bacbone of his business of $"" employees and is very committed to his business. &e also portrayed the accused as a gentle and ind human being. (b)

Guil-y Plea o -e accu#e

7ne of the strong mitigating mitigating factors in in favour of the accused accused party is his timely guilty guilty plea. %he time for determining the reduction for a guilty plea is the first reasonable opportunity for the accused to have indicated a willingness to plead guilty.

%he guilty plea of an accused which was entered at the outset of the trial entitles him in a significant manner to a reduction in sentence vide Tyac v "-a-e 42005 PR' 607 In 607 In the case of Goolee v Te "-a-e a, a,or 416 "C* 199' 199 ' it was held as follows:

“In light of the above observations, we are of the view that a plea of guilty should operate as a strong mitigating factor. It would be pointless for accused parties to plead guilty, guilty, thereby show showin ing g remo remors rse, e, savi saving ng the the time time of the the cour courtt and and spar sparin ing g witn witnes esse ses s the the orde ordeal al of testifying testifying,, if in spite of such a plea, plea, they are to be visited visited with the maximum penalty penalty that a court can inflict for the offence. ..”.

I also bear in mind the uideline eduction in sentence for guilty plea5 referred to in





(c)

Clea, Recor o -e Accu#e

Accused has a clean record. As As pointed as in the case of A/eer v Te "-a-e 42012 "C* 366< a clean record is a strong mitigating factor. (d)

Accu#e;# )illi,.,e## -o Coo=era-e >i- -e Police

Accused deposed under solemn affirmation to the effect that he cooperated with the police and gave to the police some precise information. &e undertoo to cooperate also as witness in the upcoming case against the former (rime )inister and the two 3eputy Commissioner of (olice. &e specified that he was not doing so for any personal gain. &e' in fact' wished to reveal the truth as he had been feeling guilty and ashamed of himself for the past four years towards his wife and children. Par- II$ "e,-e,ci,. Po>er# o -e Cour- i, rela-io, -o -e =re#e,- ca#e (a)

Te &a>

Accused stands charged charged with the offence offence of effecting public mischief mischief in breach of section 298 of the Criminal Code which provides as follows: ‘Any person who knowingly makes to a police officer a false statement in writing concerning an imaginary offence shall commit the offence of effecting a public mischief and shall be liable to imprisonment for a term not exceeding  years and to a fine not exceeding !s "##,###$. (b)

"eriou#,e## o -e Oe,ce

earned counsel for the prosecution emphasised that the Court cannot overloo certain factors which should be taen into consideration namely that the present offence involved an alleged conspiracy involving a former (rime )inister and two high high ran ranin ing g poli police ce offi office cers rs.. &e was was inst instru rume ment ntal al for for the the real realis isat atio ion n of such such occurrence. )oreover' she specified that the cooperation of the accused was a belated one namely four years after that incident and the accused did not cooperate with the police in as much as he did not identify the alleged aggressor though initially he stated he could do so. I have duly considered the circumstances of the present case. (1




down in a subservient manner to his pressure by giving a false statement to the police to help his friend out. 1ubse/uently' he had a sudden change of heart and outpour of remorse which made him reveal the truth so as to free himself from a guilty conscience. It is to be noted that it too him no less than four years for him to come on his own volition to report the false statement which led inevitably to the former former (rime (rime )inist )inister er and and two 3C(5s 3C(5s being being formal formally ly charge charged d with with the crime of conspiracy and this this notably after the change change in overnment. %he accused was was fully conscious of the conse/uences of his second statement which he gave in order to clear his conscience. I wish to observe that the accused admitted that he too the police for a ride and was part and parcel of the alleged conspiracy between the former (rime )inister and the two high raning police officials. Conse/ Conse/uen uently tly'' the gravit gravity y of the offen offence ce commit committed ted by the accus accused ed cannot cannot be overlooed. In so doing he deliberately lost the time and resources of the police and publ public ic funds. funds. In the the case case of DPP v "avariacoo-y 42012 "C* 100' 100' the learned 4udges of the 1upreme Court observed: +%he %he char charac acte teri rist stic ic feat featur ure e of the the offe offenc nce e of publ public ic misc mischi hief ef is whet whethe herr the the invest investiga igatin ting g author authoritie ities s follow following ing the false false statem statement ent made made to them them in writin writing, g, deployed deployed public resources resources which could could have been put to better use. &n this aspect aspect there is ample evidence. evidence. '..(y her statement statement given to the police, police, the responden respondentt took the )olice for a ride following which they were bound to deploy public resources resources in sheer futility investigating her false allegations, following false clues. clues. )olice could have have been been put to bette betterr use. use. %hat %hat is not all, all, *ember *embers s of the public public were put to suspicion, arrest and detention before release.” In the present case' (1




(c)

"u?/i##io,# o -e Pro#ecu-io, i, #u==or- o a Cu#-oial "e,-e,ce

earned counsel for the prosecution has submitted that a short sharp shoc was re/uired re/uired in the present case. In support support of inflicting inflicting a custodial custodial sentence sentence she relied upon upon the cases cases of )alee Da/ree v Te "-a-e 42011 "C* 212' 212 ' where for the offence of effecting public mischief the appellant was sentenced to undergo four months imprisonment in spite of the guilty plea' clean record and young age of the appellant. %he Appellate Court held that the four months imprisonment was fully warr warran ante ted. d. In the the case case of DPP v Ru,.oo 42013 "C* 2' 2' the sentence of the appellant appellant was reduced reduced from 2 years imprisonmen imprisonmentt to one year imprisonme imprisonment nt which was the ma!imum sentence provided by law for the offence of effecting public mischief. %he false statement was to the effect that one &urchurn handed over to the appellant five forged prescription forms against the payment of s #$" following which &urchurn was arrested and ept in custody for $ wees.





(d)

Al-er,a-ive# -o Cu#-oial "e,-e,ce

&owever' in passing sentence this Court has also to tae into account the mitigating factors laid out above namely the timely guilty plea of the accused and his personal circumstances. )oreover' accused is a first offender who had shown remorse and willingness towards rehabilitation so that in the circumstances this Court finds that an alternative to custody ought to be considered which would be more appropriate and would met the ends of 0ustice.

%he following passage from + +ou,. +ou,. Oe,er#< &a>< Policy a, Prac-ice@ ?y C7 :all< 7 Mc Cor/ac a, N7 "-o,e 4&o,o,< ">ee- B Ma>ell 15< at 15< at p. #"6 paragraph 9> ""$' sets out clearly' with /uotations from the &ome office publication Cri/e< *u#-ice a, Pro-ec-i,. -e Pu?lic@ 4Ho/e Oice 10< why 10< why alternatives to custody are often desirable' especially in t he case of young offenders: “%he deprivation deprivation of liberty through a custodial custodial sentence sentence is the most severe severe penalty availab available le to the courts courts and and the proper proper punish punishmen mentt for the most seriou serious s crimes crimes”” +ome &ffice, "--#, para. ."". ."". '”.

urthe urthermo rmore' re' condi conditio tional nal discha discharge rge'' as sugges suggested ted by learne learned d couns counsel el for the accused' does not not appear to this Court to be an appropriate sentence sentence in the present present case. A# Cri Cri##-o= o=e err *7 E//i E//i,# ,# =oi, =oi,-# -# ouou- i, A =rac =rac-i -ica call a==r a==roa oac c -o #e,-e,ci,.@ 4185 at 4185 at page 228 paragraph #$.#.#. : “It is not appropriate appropriate to conditionally conditionally discharge discharge an offender who has committed a serious or fairly serious offence. %o %o do so would appear to excuse criminal conduct whic which, h, what whatev ever er the the miti mitiga gati tion on,, cann cannot ot be excu excuse sed. d. /'.0 /'.0 %he %he prim prime e use use of condit condition ional al discha discharge rges s is in respec respectt of minor minor instan instances ces of ‘real$ ‘real$ crime, crime, especi especiall ally y where the offender is of good or relatively good character. '..5 '..5 As in ;ngland' legislation in )auritius provides that conditional discharge may be used used as a non> non>pu puni nitiv tive e sent senten ence ce.. 1ect 1ectio ion n #9? #9? of our our Crimi Crimina nall (roc (roced edur ure e Act Act provides for this sentence where the Court +thinks that having regard 1 (a) to the character, antecedents, age, health or mental condition of the person2 (b) to the trivial nature of the offence2 or







*%he underlining is mine-

%his Court does not find the present offence to be of a trivial nature which would re/uire a non>punitive sentence. =or would a heavy fine meet the ends of 0ustice in the present case'

7n the other hand' a Community 1ervice 7rder contains a punitive element in that the offender is deprived of his leisure leisure time' but on the other hand it avoids the harsh effec effects ts of a prison prison sentence sentence vide *u.roo= v Te "-a-e 4 2008 "C* 1. 1 . As pointed out by E//i,#< o=7 ci-7 a- =a.e 23< =ara.ra= 167175 $

“3ommunity “3ommunity service service orders are used as an alternative alternative to a custodial custodial sentence sentence in case cases s wher where, e, if an orde orderr coul could d not not be made made,, a shor shortt or even even medi medium um term term of imprisonmen imprisonmentt etc. would be 4ustified /'0 %he second use of community community service service is where the nature nature of the offence offence and the character character of the offender offender do not 4ustify a cust custod odia iall sent senten ence ce but but a fine fine is inap inappr prop opri riat ate e +e.g +e.g.. beca becaus use e the the offe offend nder er is impecunious. /'0 %he great great advantage of community service service as a sentence is that it genuinely punishes an offender, offender, because pending a series of 5aturdays or weekday evenin evenings gs workin working g for nothin nothing g is someth something ing which which only only the very very altruis altruistic tic could could willin willingly gly do. &n the other other hand, hand, it does does not deprive deprive him of his liberty liberty with all the conse6uent cost to society society of keeping keeping him locked locked up and perhaps, perhaps, supporting supporting his dependants while he is locked up. up. Indeed, society even benefits from the work done under community service schemes schemes 1 in a very real sense, the offender offender pays back his debt to society.”





;n/uiry eport on behalf of the accused accused as regards whether whether he might benefit from a Community 1ervice 7rder re/uiring him to perform unpaid wor in the open for a specified period. &e has to pay s $"" as costs. costs.

"e,-e,ce elivere o,$ 18 A=ril 2016 "e,-e,ce elivere ?y

R7D7 Da?ee Pre#ie,-< I,-er/eia-e Cour- 4Cri/i,al Divi#io,7

Jugement Contre Rakesh Gooljaury

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