IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 65 OF 1990

Between:

JOLAME TIKO
Applicant

- and -

THE STATE
Respondent

Applicant in Person
Mr S. Hettige for the Respondent

JUDGMENT

On the 4th July 1988 the appellant was convicted in the Nausori Magistrate's Court after he pleaded guilty to an offence of Club Breaking Entering and Larceny in which 18 of 24 stolen beer bottles were recovered. Upon his conviction the appellant was sentenced to pay a fine of $70.00 in default 70 days imprisonment; he was also sentenced to 12 months imprisonment suspended for 18 months.

Then 17 months later on the 19th of February, 1990 the appellant was again convicted by the Nausori Magistrate's Court on his guilty plea to an offence of Office Breaking, Entering and Larceny in which a BP's service station was broken into and 4 gross of assorted cigarettes valued at $45.60 were stolen (all other properties having been recovered).

For this latter offence the appellant received a sentence of 30 months imprisonment to be served consecutively with the entire 12 months suspended sentence which was activated making a total of (30 + 12) = 42 months imprisonment.

For the sake of completeness I note from the appellant's record of previous convictions that in between these 2 offences under appeal he was convicted in the Nausori Magistrate's Court for an offence of Robbery with Violence during the operational period of the suspended sentence and, although he was sentenced to 15 months imprisonment, his suspended sentence remained unactivated.

The appellant now appeals against the activation and the sentences imposed in both cases urging its harshness in support of his appeal. He asks for his sentences to be made concurrent and seeks the leniency of the Court.

Learned State Counsel in seeking to support the trial Magistrate's activation order made reference to the terms of Section 30(1)(a) of the Penal Code cap 17 which empowers a Court when dealing with a suspended sentence to order that the suspended sentence.... " shall take effect with the original term unaltered as occurred in this instance".

Unfortunately the Magistrate who convicted the appellant for Robbery with Violence in February '89 did not consider such a course of action appropriate. In the result the appellant was placed in the seemingly inconsistent position of serving a prison sentence whilst there was a suspended sentence of imprisonment "hanging over him".

Be that as it may, in my view the activation in full of a suspended sentence a month short of its expiration and where there had been a previous refusal to activate it, is likely to leave an accused person with a justifiable sense of grievance.

Furthermore a sentence of 30 months imprisonment for a Burglary in which goods worth $46.00 were stolen does appear to be on the harsh side.

In the circumstances although the appellant's appeal against the sentence in the "Club Breaking" case is dismissed as being without any merit, the sentence and activation in the "Service Station Breaking" case cannot be allowed to remain unaltered.

Accordingly the sentence of 30 months imprisonment is reduced to one of 18 months and of the suspended sentence 6 months are hereby ordered to be activated to be served consecutive to the 18 months making a total effective sentence of (18 + 6) = 24 months imprisonment with effect from the 19th of February, 1990.

(D. V. Fatiaki)
JUDGE

17th August, 1990.
At Suva.
HAA0065J.90S